Karnataka High Court
Sri P L Thammanna vs Sri D G Rohit on 23 January, 2015
Author: G.Narendar
Bench: G. Narendar
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2015
:BEFORE:
THE HON'BLE MR. JUSTICE G. NARENDAR
CRL.R.P. NO. 435/2014
BETWEEN:
Sri. P.L. Thammanna
S/o P.A. Lingegowda,
Aged about 52 years,
R/o Pura, Jenugadde Post,
Chickmagalur Taluk-577 101. ... PETITIONER
(By Sri. Phanindra K.N., Adv.)
AND:
Sri. D.G. Rohit
S/o Sri. Gopala Gowda,
Aged about 33 years,
C/o Golden Bar and Restaurant,
Mallandur Road,
Chickmagalur City-577 101. ... RESPONDENT
(Sri. M.S. Raghavendra Prasad, Adv.)
THIS MEMORANDUM OF CRIMINAL REVISION
PETITION IS FILED UNDER SECTION 397 OF THE
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CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO
SET ASIDE THE JUDGMENT DATED 28.11.2013
PASSED BY THE II ADDL. DISTRICT & SESSIONS
JUDGE AT CHICKMAGALUR IN CRL. APPEAL
NO.121/2013 AND CONFIRM THE ORDER OF
ACQUITTAL DATED 01.02.2013 PASSED IN C.C.
NO.1356/2009 BY THE II ADDL. CIVIL JUDGE AND
J.M.F.C., CHICKMAGALUR AND CONSEQUENTLY
DISMISS THE SAID COMPLAINT, BY ALLOWING THE
ABOVE REVISION PETITION.
THIS CRIMINAL REVISION PETITION HAVING
BEEN HEARD AND RESERVED FOR ORDER, THIS
DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER
This Criminal Revision Petition is filed by the accused who is the petitioner herein praying to set aside the judgment dated 28.11.2013 passed by the II Additional District and Sessions Judge, Chickmagalur in Crl. Appeal No.121/2013 confirming the order of acquittal dated 01.12.2013 passed by the II Additional Civil Judge and J.M.F.C., Chickmagalur in C.C. 3 No.1356/2009 and consequently dismiss the complaint by allowing this Revision Petition.
2. The facts and contentions of the parties before the Courts below is as follows:
The respondent herein is the complainant before the Trial Court. It is the case of the respondent that the accused has borrowed a sum of Rs.51,000/- for the purpose of timber business and in repayment of the same he has issued a cheque bearing No. 506395 dated 04.06.2009 [marked as Ex.P1 and the signature is marked as Ex.P1(a)] and is drawn on Indian Bank, Chickmagalur Branch. That the respondent -
complainant presented the cheque for encashment to his Bankers M/s. Indian Bank, Chickmagalur. But the same was returned by his Bankers with the endorsement dated 19.08.2009 (marked as Ex.P2) for 4 the reason 'funds insufficient'. Thereafter, the respondent/complainant got issued a legal notice dated 31.08.2009 (marked as Ex.P3) through his Counsel. The legal notice is issued in compliance of the provisions of Section 138 of Negotiable Instruments Act. The respondent/complainant claims that the legal notice in compliance of the provision of Section 138 of N.I. Act has been sent by RPAD and Certificate of Posting. It is the case of the respondent/complainant that the notice issued by RPAD has been returned unserved as the petitioner/accused deliberately evaded the receipt of notice. The returned postal cover is marked as Ex.P4. It is the further claim of the respondent - complainant that the notice sent by certificate of posting has been served upon the petitioner/accused. The endorsement issued by the Postal Authorities and the receipt are produced and 5 marked as Ex.P5 and P6. The respondent/complainant thereafter got registered the above complaint under Section 200 of Cr.P.C. praying to punish the accused / petitioner for the offence punishable under Section 138 of Negotiable Instruments Act and summon. The petitioner/accused pleaded not guilty and claimed to be tried.
3. The respondent/complainant examined himself as PW-1 and got marked six documents described supra as Ex.P1 to P6. The accused was examined under Section 313 of Cr.P.C. and denied the allegations. The accused got examined himself and one witness as DW1 and DW2 and no exhibits are marked on his behalf.
4. During the course of the cross-examination of the respondent/complainant, the petitioner/accused has elicited certain answers/admissions before the Trial 6 Court and based on the same the Trial Court disbelieved the version of the complainant and consequently, the Trial Court was pleased to reject the complaint and passed an order acquitting the accused/petitioner under Section 255(1) of Cr.P.C.
5. The twin reasons for the acquittal is that, the accused has been successful in rebutting the initial presumption drawn in favour of the complainant and that the accused was successful in eliciting the admissions by PW-1, the complainant/respondent herein, Wherein the complainant admitted that the accused had approached him for financial assistance in 2008 and further that, the cheque was handed over to him by the accused in February/March 2009. These two admissions are not supported by any pleading either in the complaint or in the evidence in chief. In 7 this background, the Trial Court was convinced by the defence set up by the accused/petitioner that the cheque was issued on 04.01.2007 as a security for the timber business, which the respondent/complainant had promised to supply to the petitioner / accused. The further ground is that of the material alteration on the cheque. The same is visible to the naked eye. The respondent/ complainant had not made any pleadings in this regard either in his complaint or in his examination-in-chief but sought to improve his case by stating in cross-examination that the alteration was done by the accused himself. This was also disbelieved by the learned Trial Judge. The Trial Court also accepted the ground that no notice as mandated under Section 138 of N.I. Act had been served upon the accused/petitioner. Hence, there is no valid service of 8 notice. On the above grounds, the Trial Court was pleased to acquit the petitioner/accused.
6. The respondent/complainant aggrieved by the same preferred Criminal Appeal No.121/2013. After notice and after hearing the parties, the Appellate Court was pleased to reverse the judgment and order of acquittal and was pleased to convict the petitioner/accused by allowing the appeal and further the Appellate Court was pleased to sentence the petitioner to pay a fine of Rs.75,000/- to the complainant and in default to undergo simple imprisonment for six months and further directed that out of the fine amount, a sum of Rs.70,000/- be paid to the complainant as compensation under Section 357(3) of Cr.P.C. and balance fine amount of Rs.5,000/- be remitted to the State.
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7. The Appellate Court has proceeded to reverse the findings of the Trial Court that a notice has not been served in accordance with the provisions of the N.I. Act. The Appellate Court while not interfering the findings of the Trial Court regarding the non-service of notice by RPAD has proceeded to hold that the notice under Section 138(b) of N.I. Act has been served by certificate of posting. This finding is contrary to the evidence and also the law laid down by the Hon'ble Apex Court, wherein the Hon'ble Apex Court has frowned upon the certificate of posting as a legitimate means of putting parties notice. The Apex Court has discussed in detail the manipulations in the matter pertaining to certificate of posting. The Appellate Court once having concurred with the Trial Court's finding that the notice was not served by RPAD ought not to have concluded the 10 compliance under the provisions of Section 138(b) of the Act. This finding is further strengthened by the endorsement on the postal cover (Ex.P4). The Court has proceeded on the footing that intimation has been given to the family members of the accused regarding the registered post and calling upon the accused.
8. A perusal of Ex.P4 which read thus:
"Party not in station returned to sender"
on the reverse side of the cover, the endorsement read thus:
"that the postman visited the house twice and he was informed that the petitioner/accused is not residing there and that his address is not known to the residents/inmates".
Thus, as can be seen the two endorsements are self- contradictory. One endorsement reads that the party is 11 not in station, while the implication of the other endorsement is that the petitioner/accused has left the address and is not residing there. But there is no mention of any intimation slip having been handed over to the other residents. In this context, it is relevant to refer to the defence of the petitioner/accused that as asserted that he was not in station during the relevant time and had traveled to Maharashtra in the line of his timber business. But this defence is brushed aside by the Appellate Court without there being any contrary evidence. Even the other endorsement would only go to show that the same has to be disbelieved in view of the subsequent fact that summons from the Lower Court have been served upon the petitioner/accused at the very same address. But more importantly, there is no endorsement by the postal authorities that intimation has been given to the recipients of the postal cover 12 calling upon to collect from the postal authorities. This being the fact, the evidence of the complainant does not inspire confidence with regard to the service of notice.
9. Secondly, the next point taken up for consideration is, whether the Appellate Court has correctly reversed the finding of the Trial Court with regard to the material alteration found on the cheque. The inference drawn by the Appellate Court based on the admission of the complainant/respondent is to say the least perverse and unsustainable. The Appellate Court has inferred from the admission that there was no transaction between the complainant and the accused in the year 2007 and hence, disbelieved the defence of the accused that the cheque was issued on 04.01.2007 as security to the complainant. The Appellate Court arrived at this conclusion in view of the 13 denial by the complainant to the suggestions that the complainant did not know the accused prior to 2007. The Appellate Court erred in considering only the denial and not the further clarification made by the complainant wherein he has stated that he knows the accused five years prior to 2007 and the acquaintance was in the course of timber business only. The complainant has further proceeded to depose that in the year 2008 the accused had approached him for financial assistance in a sum of Rs.1.00 lakh. But that he paid him only Rs.51,000/-. None of this is supported by any pleadings either in the complaint or by any evidence in his examination-in-chief. This admission goes to the root of the matter to the extent of discrediting the evidence of the complainant.
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10. The next ground which appealed to the Appellate Court for reversing the order of acquittal is the interpretation placed with regard to the material alteration on the cheque. The Appellate Court admits the material alteration in the date column of the cheque it accepts the numerical 7 has been altered to read as 9, but rejects the defence of the accused and proceeds to accept the clarification given by the complainant in his re-examination and cross-examination, wherein he has stated that the alteration has been done by the accused himself.
11. It is pertinent to state that such a relevant fact of material alteration has not even been pleaded in the complaint nor in the deposition by way of examination- in-chief of the complainant. The Appellate Court bases its finding on the fact that the alteration is attested by 15 the signature of the accused and that the accused has not denied this signature. This is nothing but a hair splitting argument. It is not even the case of the complainant. Further, the signatures attesting the alteration are not marked and it is also the specific defence of the accused that the alteration is not done by him and he has denied the alteration and has asserted the same in the form of suggestions and cross- examination. The defence of the accused is based on the specific ground that the date on the cheque is 04.01.2007 and not 04.06.2009. In this regard it is to be noticed that both the parties admit that there is an alteration about the date. But are at a variance only on the point as to who carried out the alteration. It is admitted that the year as mentioned as 7 and is later altered to read as 9. Bare perusal of the signature, attesting the alteration does not inspire confidence as 16 there is no similarity between them and Ex.P1(a) and they appear different even to the naked eye. The complainant has neither pleaded nor deposed effectively with regard to this crucial aspect, which goes to the root of his claim.
12. The subsequent clarification by the complainant during the course of cross-examination and re- examination can only be considered as an improvement and is rather too weak and an unacceptable explanation with regard to such a serious charge of material alteration. In the absence of evidence and pleadings, it is improper for the Appellate Court to infer and make out a case in favour of the respondent/complainant. The Appellate Court has tended to disbelieve the accused and has proceeded to make out a case which is not even pleaded by the complainant. The Appellate 17 Court arrives at a conclusion for conviction, only because the accused did not make an attempt to take back the cheque given in the year 2007. Even as per the admission of the complainant, the complainant and accused are acquaintance even five years prior to 2007.
13. In the light of this admission, the assertion of the accused that he has requested the complainant to return the cheque but that the complainant has stated that the same was misplaced and that he did not take any steps to retrieve the cheque as it had lost its validity. This is disbelieved and then the case made out by the Appellate Court on behalf of the complainant.
14. I have heard Sri. Phanindra K.N. learned Counsel for the petitioner and Sri. M.S. Raghavendra Prasad learned Counsel for the respondent.
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15. The petitioner's Counsel reiterated the finding of the Trial Court with regard to the alteration and he would submit that the alteration is material and ought to have been the sole ground for the Appellate Court to reject the appeal. He would further contend that the cheque/instrument is not supported by any consideration and no legally recoverable debt is due from the petitioner/accused therein to the respondent/complainant and further contends that the provisions of Section 138(b) of the Act are not complied. In the sense that no notice has been served upon the petitioner/accused and the notices at Ex.P4 and P5 are result of the manipulation by the respondent in collusion with the third parties. In sum and substance, the petitioner's Counsel reiterates the findings of the Trial Court and assails the order of the Appellate Court 19 reverses the order of acquittal rendered by the Trial Court.
16. Per contra, the learned Counsel for the respondent Sri. Raghavendra Prasad vehemently argued and assailed the findings of the Trial Court. The respondent's Counsel would rely on a judgment of the Apex Court reported in AIR 2007 SC (SUPP) 1705 to support the findings of the Appellate Court regarding the service of notice. By the said Judgment, the Hon'ble Supreme Court in paragraphs 13 and 14 has stated in what circumstances the Court can presume the delivery in the common course of natural events. This is rendered after interpreting the provisions of Section 27 of the General Clauses Act and Section 114 of the Evidence Act. As regards, it is the contention that there can be no quarrel with regard to the law laid down by 20 the Apex Court. But, in the instant case, the Postal Authorities have compounded the issue. In one breadth it is stated that the party is not in station (i.e. on the front side of the cover) and on the reverse of the cover the Postal Authorities have endorsed that inmates of the addressee have informed that the addressee has left the address and they do not know where he is presently residing. Hence, in view of the peculiar facts obtaining in the case, the judgment above referred is inapplicable and will not be of assistance to the respondent demonstrating his case. The respondent had also relied upon a Judgment of the Hon'ble Apex Court reported in AIR 2010 SC 1898 to buttress his contention that the presumption under Section 139 includes a presumption as to the existence of a legally enforceable debt or liability.
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17. Yet again, this Court have no quarrel the principle enunciated by the Hon'ble Supreme Court and the same is binding in all the Courts including this Court. But the Apex Court in as many judgments held the very judgment that the said presumption is in the nature of a rebuttal presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. There is no doubt that the initial presumption was in favour of the complainant and that is why the Trial Court has felt fit to answer the charges. The accused after appearance has successfully rebutted the presumption by inducing the complainant admit certain facts which cast due on the veracity of the evidence rendered by the complainant. Hence that apart, the clinching factor which goes against the complainant is a material alteration as regards the same. The respondent's 22 Counsel would reiterate the reasoning given by the Appellate Court. As stated supra, the same is not even the case of the complainant and the reason is wholly that of the Appellate Court by which a new case is made out in favour of the complainant. The Appellate Court cannot be permitted to make out a case on behalf of any other parties. By doing so, the Appellate Court has traveled beyond its jurisdiction and consequently the order of the Appellate Court stands dismissed.
18. In view of the foregoing reasons, this Court is of the view that the order of judgment and conviction by the Appellate Court is unsustainable either in law or on facts. It is accordingly set aside. The order of the learned Trial Court in C.C. No. 1356/2009 dated 01.02.2013 is confirmed and the finding of the Appellate Court is reversed.
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The Order of conviction sentencing the petitioner to pay fine of Rs.75,000/- or in default to undergo simple imprisonment for a period of six months is hereby set aside. In view of the acquittal of the petitioner/accused, the bail bonds are cancelled, surety discharged and all funds deposited by the accused shall be refunded to the accused forthwith.
Ordered accordingly.
Sd/-
JUDGE.
Rbv