Karnataka High Court
Mr. T.R.S. Kumar vs M.R.K. Murthy on 5 July, 2022
Author: P.N.Desai
Bench: P.N.Desai
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JULY, 2022
BEFORE:
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL REVISION PETITION No.493 OF 2013
BETWEEN:
MR. T.R.S KUMAR
S/O T.R. RAJAPPA,
AGED ABOUT 50 YEARS,
#23, RMV 2ND STAGE,
JALADARSHANI LAYOUT,
NEW BPL ROAD,
BANGALORE- 560 054.
...PETITIONER
(BY SRI. SURESH SUBBAIAH.,ADVOCATE)
AND:
M.R.K MURTHY
S/O M.S RAJESHWAR RAO,
AGED ABOUT 65 YEARS
R/AT NO.240/6, 19TH CROSS,
20TH MAIN, VIJAYANAGAR,
BANGALORE-40.
...RESPONDENT
(BY SRI. C.P. DHANANJAYA.,ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND SENTENCE DATED 04.05.2013 PASSED BY THE
P.O.,F.T.C.-I,BANGALORE CITY IN CRL.A NO.492/2012 AND
JUDGMENT AND SENTENCE DATED 19.07.2012 PASSED BY THE
XV A.C.M.M., BANGALORE IN C.C.NO.14875/2005.
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THIS CRIMINAL REVISION PETITION IS COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
This revision petition is filed by the petitioner challenging the judgment of conviction and order of sentence dated 04.05.2013 passed in Crl.A.No.492/2012 by the Fast Track-I, Bangalore City, wherein the judgment of conviction and order of sentence passed by XV Addl. Chief Metropolitan Magistrate in C.C.No.14875/2005 dated 19.07.2012 is affirmed, wherein the petitioner was found guilty for the offence punishable under section 138 of the Negotiable Instruments Act, (for short hereinafter referred as 'N.I. Act') and was sentenced to pay a fine of Rs.1,50,000/-, in default to undergo simple imprisonment for four months.
2. The complainant filed a complaint before the trial court alleging that the complainant and the accused are known to each other for past 10 years. In the month of April 2003, the accused approached the complainant for financial help and borrowed a hand loan of Rs.45,000/- in -3- the first week of April 2003 and promised to repay the said amount within two years. Again the accused borrowed a hand loan of Rs.70,000/- and Rs.25,000/- from the complainant in month of July 2004. Thereafter, the accused issued two cheques dated 10.08.2004 for Rs.1,20,000/- and Rs.20,000/- dated 12.08.2004 drawn on Sri. Tyagarajanagar Co-operative Bank, N.R. Colony, Bengaluru. The accused promised that he would raise loan from the bank and repay the amount and requested the complainant to present the cheques after due date. As per the instructions of the accused, the cheques were presented through his banker-Corporation Bank, N.T. Road, Bangalore on 12.08.2004, but the cheque was returned with an endorsement 'insufficient funds' in the account'. The accused again requested the complainant to present the cheque, again it was returned with an endorsement 'insufficient funds'. Therefore, inspite of intimation, when the amount was not paid, the complainant issued legal notice dated 06.12.2004 demanding the amount. Accused refused to receive the -4- said notice and it was returned with shara 'not claimed'. Notice was sent through under certificate of posting also. As the amount was not repaid by the accused, the complainant presented a complaint to the Court.
3. Thereafterwards, the complainant got examined himself as PW-1 and got marked nine documents as Exs- P1 to P9. Then the statement of the accused as required under section 313(1)(b) Cr.P.C. was recorded wherein the accused has denied the evidence in toto and the accused led defence evidence as DW-1 and got marked five documents as Ex-D1 to Ex-D5. After hearing the arguments, learned magistrate found the accused guilty and convicted the accused. Aggrieved by the same, the accused preferred criminal appeal, which also came to be dismissed by the impugned order which is now challenged before this Court.
4. I have heard learned counsel for the petitioner Sri. Suresh Subbaiah and Sri. C.P. Dhananjaya, learned counsel for the respondent.
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5. Learned counsel for the petitioner argued that earlier there were cases filed by the daughter of the complainant wherein this complainant himself represented her as Power of Attorney Holder. In that case, there is an order of conviction. Infact, according to the learned counsel, the two cheques in question were issued in favour of the complainant in relation to C.C.No.36118/2002. Learned counsel further argued that though the complainant had received the amount, but receipt is obtained only in respect of Rs.1.00 lakh and for the remaining amount, receipt was not received by the accused and the other case ended in conviction. Therefore, he preferred criminal appeal which also came to be dismissed. Therefore, learned counsel argued that when the relationship of the complainant and the accused is strained and when there is also conviction order hanging on him, question of the petitioner requesting the complainant to pay the amount does not arise. Infact, the petitioner has led his defence evidence and produced the receipt. The complainant even went to the extent of -6- denying his signature on it. Thereafterwards, an handwriting expert was appointed and it was found that the signature appearing on Ex-D1 is that of the complainant itself. Therefore, by misusing the cheque which were given for settlement of that case, the complainant has filed this complaint on false ground. Learned counsel also argued that the legal notice was not properly served on the petitioner/accused. Therefore, learned counsel argued that the trial court as well as appellate court without considering the evidence in this regard, when there is failure on the part of the complainant to show that when the amount was given to the accused and when there is no evidence to show that when the notice is served, both the courts ought to have accepted the version of the petitioner and acquit the accused by dismissing the complaint.
6. Against this, learned counsel for respondent argued that both the courts have rightly appreciated the evidence and considering the presumption arising out of -7- section 139 of N.I. Act and as the cheque is admittedly belonging to the account of the petitioner and as he has admitted his signature and as the notice is sent to the address which is admittedly the address of the petitioner, both the courts have held regarding proper service of notice. Therefore, learned counsel supported the judgment of both the courts and prayed to reject the revision petition.
7. From the above material, the point that arise for consideration is:-
"Whether the order passed by learned Fast Track Judge in affirming the judgment of conviction and order of sentence passed by learned Addl. CMM in C.C.No.14875/2005 is correct, legal or needs any interference by this Court?"
8. Admittedly, both the courts have come to a concurrent finding that the complainant has proved the ingredients of section 138 of N.I. Act. Both the courts have found that the defence of the accused is not justifiable -8- one. Though this Court in a revision cannot discuss the evidence on record being a revisional court, but to find out the correctness and legality, I have also gone through the evidence which is available before Court.
9. The respondent complainant filed a written complaint regarding issuance of cheque and borrowing the amount by the accused. According to the complainant, in the year 2003, two cheques were issued by the accused one for Rs.1,20,000/- and another for Rs.20,000/-. In his oral evidence which is the sworn statement, he has reiterated the same. Ex-P1 is the complaint. Ex-P2 and P3 are the two cheques which shows that said cheques were issued in favour of the complainant M.R.K. Murthy by the accused. Ex-P4 and Ex-P5 are the memos of the bank wherein, they shows that the cheques were returned without encashment for the reasons 'funds insufficient' in the account. Ex-P6 is the legal notice dated 06.12.2004, wherein the complainant has narrated the contents of the complaint and demanding of the said amount. Ex-P7 is the -9- postal receipt and Ex-P8 is the receipt of under certificate of posting. Ex-P9 is the original legal notice and Ex-P(a) is the signature of the complainant. So this is the oral and documentary evidence of the complainant-PW-1. Accused has cross-examined this PW-1. It is suggested that the accused being a PWD contractor used to borrow money and used to return the amount with interest. He has further stated that the accused used to give the cheques. It is suggested that as a security for the loan borrowed from his daughter, these cheques were given by the accused. He has admitted about filing of a case in C.C.No.36188/2002 by his daughter as a GPA holder. But he has denied the suggestion that the cheques which were given as security in respect of that case were misused and a false case has been filed. In the further cross- examination, it is elicited that the complainant was working as a Lab Assistant in Government Science College, Bengaluru and he retired during July 2004 by giving VRS(voluntary retirement scheme). That itself shows that he has received lumpsum amount after taking VRS. Even
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earlier part of cross-examination also shows that the accused used to borrow money from the complainant many a times and return it by issuance of cheques. It is suggested that accused has not produced any bank statement of Corporation Bank to show that he has paid Rs.45,000/-. Some suggestions were made that he has promised to withdraw the case after payment of Rs.1.00 lakh in cash and Rs.1,20,000/- in cheque, but he has not returned the said cheque, which he has denied it. It is suggested that Ex-P2 cheque was issued by the accused for payment of fee of his Advocate at the time of settlement, which is also not denied. It is suggested that the accused was residing since last one and half years in R.T. Nagar.
10. On perusing the oral and documentary evidence, it is evident that the petitioner/accused admits issuance of cheque and also signature. Of course, he has made suggestion that it is for the sake of security in respect of C.C.No.36188/2002, but nowhere such records are
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forthcoming to show that the accused has given the cheque in respect of those cases. On the other hand, admittedly, as stated, the petitioner/accused has obtained a receipt in respect of amount which was given by him through cash, but no receipts were obtained by him in respect of those cheques.
11. If at all the two cheques shown in this case were given in respect of transaction in other cases, said cheque numbers and the amount transacted would have been mentioned in the receipt, but the details of such transaction are not found. Therefore, under sections 118 and 139 of N.I. Act, presumption arises in favour of the complainant. Of-course, that presumption is rebuttable presumption. The accused can rebut that presumption by two methods one by cross-examining the complainant and show before the court that the evidence adduced by the complainant is not acceptable and legal, so that the presumption raised can be rebutted. Second method is by leading his defence. Of-course, the requirement of proof by
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the accused is not that as in a criminal case that is beyond reasonable doubt, but based on preponderance of the case.
12. In the light of these principles, if the evidence of the complainant is considered, then it is evident that the complainant has issued legal notice immediately after dishonour of the cheque and said legal notice Ex-P6, Ex-P7 postal receipt and Ex-P8 Under certificate of posting go to show that said notice was sent to the address of the petitioner/accused. Of-course, if the petitioner/accused had resided in some other address when the evidence was being recorded, the same is of no consequence. On the other hand, as per The General Clauses Act, 1897, if once notice is issued to the correct address of the addressee by way of registered post or by way of certificate of posting, then presumption is in favour of the due service of notice. The postal endorsement also shows that intimation was delivered, but it was unclaimed. It is settled principles of law that when the notice is served through certificate of posting and returned with postal shara 'not claimed',
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intimation 'unclaimed' is sufficient for service of notice. There is nothing in the cross-examination to show that these cheques were misused. On the other hand, when once the complainant is able to discharge his initial burden coupled with presumption in his favour, then onus shifts on the accused.
13. The accused has given his evidence as DW-1. In his evidence, he has deposed about the cases filed by the daughter of the complainant against him and that the other cases was compromised and he has taken receipt for having paid Rs.1.00 lakh by cash. But it appears, said receipts were not produced and that matter also ended in conviction. The revision petition filed by the accused came to be dismissed. According to the accused, two cheques which were given by him at the time of compromise in respect of other cases were misused. If that is the case, such defence ought to have been taken by him. In the other cases also, if at all the accused had paid the amount through cheque, there was no difficulty for him to bring
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the same to the notice of the court in that case. But no such records are forthcoming and no steps were taken by the accused, if at all these cheques were misused by the complainant.
14. Examination-in-chief of accused shows that these cheques were issued by him, but according to him, they were in respect of the other cases. His cross-examination shows that the accused is residing in the same address as shown in the address-Ex-P6 at the time of issuance of notice and as on the date of his deposition. Accused has admitted that he has not taken any steps or lodged any complaint against the daughter of the complainant for misuse of the cheque stated to have been given by him. Accused kept quiet. Even accused has not examined the person/advocate to whom Rs.20,000/- was to be paid as fee. No such defence is let in. Accused has not produced any document so show that he is not residing in the said address. Accused has admitted that he is doing civil contract work and if at all he came to know that the
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cheques which were issued by him were misused in the year 2002 itself, no steps were taken by him. On the other hand, he has clearly admitted that for the last 10 years, he was borrowing the amount from the daughter of the complainant and complainant used to be present there. Therefore, his cross-examination clearly indicates that he was in the habit of borrowing the amount from the complainant and his daughter. Ofcourse, simply because criminal case was filed by the daughter and there were settlement talks in respect of settlement in that case, that does not mean that there was no occasion for the accused to borrow. On the other hand, no such contention is taken in that case filed by the daughter, nor any records were produced either in the appellate court or in this Court. If at all, the accused had paid certain amounts and had issued the cheques, he would have very well obtained receipt as he has obtained receipt for Rs.1.00 lakh as stated above. That itself shows that the accused has taken false defence only for the sake of defence. On the other hand, any amount of denial will not rebut the presumption which is
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legally arising in favour of the complainant. On the other hand, when Court notice is served when the complainant filed the complaint and the accused appeared before the court, it is the duty of the accused to place on record the reply to the said notice when he came to know that such notice was not issued to the address. But he has not chosen to do so.
15. Therefore, in view of the presumption arising under section 139 and also under section 118 of N.i. Act and also in view of the General Clauses Act regarding service of notice, if the present judgment of Fast Track Court is considered, then it is evident that the learned Sessions Judge has in detail given reasons. Simply because the complainant denied his signature on Ex-D1, which is proved to be his signature only, it cannot be said that his entire complaint is false in this case. The receipt which was produced by the accused is pertaining to the case which the daughter of the complainant had lodged. If at all he has paid full amount by issuing these two
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cheques, then question of he being convicted does not arise. Therefore, both the courts have found that the accused has failed to rebut the presumption arising in favour of the complainant under N.I. Act. The concurrent findings of both the courts cannot be said as either illegal or arbitrary or not based on sound principle regarding appreciation of evidence in dishonour of cheques which are popularly called as 'cheque bounce cases'. Both the courts have referred to the oral and documentary evidence and after proper appreciation of evidence have come to the conclusion that the accused has failed to proved his case. Therefore, I find no merit in the revision petition.
Accordingly, I pass the following:
ORDER
1. The revision petition is dismissed.
2. No order as to costs.
Sd/-
JUDGE *mn/-