Karnataka High Court
Sri Chikkahonnaiah vs Smt Basamma @ Bindu on 2 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 1819
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.142 OF 2011
BETWEEN:
Sri Chikkahonnaiah
S/o Lingappa
Aged about 50 years,
Residing at No.321,
Sulochana Nilaya,
BEML Layout, 5th Main,
Kamakshipalya,
Bangalore. ..PETITIONER
(By Sri Amit Deshpande, Amicus Curiae)
AND:
Smt. Basamma @ Bindu,
W/o Sri.Ananthakumar,
Aged about 34 years,
Residing at No.22,
5th main, 10th 'A' Cross,
A.D. Halli
Bangalore - 79. ..RESPONDENT
(By Dr.J.S. Halasetti, Amicus Curiae)
Crl.R.P.No.142/2011
2
This Criminal Revision Petition is filed under Section
397 Cr.P.C. praying to set aside the Judgment of
conviction and Order on sentence passed by the learned
XIII Addl. Chief Metropolitan Magistrate, Bangalore, in
C.C.No.17510/2005, dated 12.07.2007, and also set aside
the Order passed by learned Fast Track (Sessions) Judge-
V, Bangalore City in Crl. Appeal No.891/2007 dated
10.01.2011 dismissing the appeal, thereby acquit the
petitioner of the offence punishable under Section 138 of
the Negotiable Instruments act, in the interest of justice.
This Criminal Revision Petition having been heard
through Physical Hearing/Video Conferencing and reserved
on 27.08.2020, coming on for pronouncement of Order,
this day, the Court made the following:
ORDER
The petitioner was the accused in the Court of learned XIII Addl. Chief Metropolitan Magistrate, Bangalore (hereinafter referred to as 'the Trial Court) in C.C. No.17510/2005 who was tried for the offence punishable under Section 138 of the Negotiable Crl.R.P.No.142/2011 3 Instruments Act, 1881 (for brevity, hereinafter referred to as 'the N.I. Act').
2. The summary of the case of the complainant in the Trial Court is that the accused had borrowed a sum of `6,00,000/- from her on 07.03.2004 as loan for the purpose of purchasing a building property. The accused had agreed to repay the said loan amount on demand. Accordingly, the accused issued a cheque bearing No.209580 dated 07.11.2004 drawn on Syndicate Bank, Rajajinagar II Stage Branch, Bengaluru for a sum of `6,00,000/- favouring the complainant towards the repayment of the loan amount. The said cheque when presented for clearing from the complainant's banker, came to be returned dishonoued with the banker's endorsement "funds insufficient". Thereafter the complainant issued a legal notice dated 13.01.2005. Crl.R.P.No.142/2011 4 The accused did not claim the notice sent through 'registered post acknowledgement due', as such, it was returned to the sender. However, the notice which was sent through 'certificate of posting' was duly served upon the accused. Still the accused neither responded to the notice nor paid the demanded cheque amount. Hence, the complainant instituted a criminal case against the accused in the Trial Court, for the offence punishable under S.138 of the N.I. Act.
Since the accused pleaded not guilty, the trial was held wherein the complainant got herself examined as PW-1 and got marked documents from Exs.P1 to P10. The accused did not adduce any oral or documentary evidence on his behalf. The Trial Court, after hearing arguments from both side and considering the material on record, by its impugned Crl.R.P.No.142/2011 5 Judgment of conviction and Order on sentence dated 12.07.2007, convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him accordingly.
3. Aggrieved by the Judgment of the Trial Court, the accused preferred an appeal in the Court of Fast Track (Sessions) Judge - V, Bangalore City (for brevity, hereinafter referred to as 'Session Judge's Court') in Crl.A. No.891/2007. The said Court, by its Order dated 10.01.2011 while confirming the Judgment of conviction passed by the Trial Court, dismissed the appeal. Aggrieved by the same, the accused has preferred this revision petition.
4. The Sessions Court and the Trial Court records were called for and the same are placed before the Court.
Perused the materials placed on record. Crl.R.P.No.142/2011 6
5. Though notice was served upon the respondent, she remained unrepresented. As such, considering the nature of the case and in the best interest of justice, this Court, by the Order dated 06.08.2020, appointed learned counsel Dr.J.S. Halasetti as amicus curiae for the respondent in the matter.
Similarly, since the learned counsel appearing for the revision petitioner also remained absent on a few dates of hearing, this Court, by its detailed Order dated 13.08.2020 appointed learned counsel Sri Amit Deshpande as amicus curiae for the revision petitioner.
6. Heard arguments of the learned amicus curiae for the revision petitioner as well as the learned amicus curiae for the respondent who are physically present in the Court.
Crl.R.P.No.142/20117
7. The point that arises for my consideration is, "whether the Judgment of conviction and Order on sentence passed by the Trial Court and confirmed by the Session Judge's Court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this Court?"
8. Learned amicus curiae for the revision petitioner in his arguments submitted that no reasonable opportunity was given to the accused for the cross-examination of complainant / PW-1 in the Trial Court. As such, the matter deserves to be remanded giving an opportunity to the accused to further cross-examine the complainant. The said submission was vehemently opposed by the learned amicus curiae for the respondent who submitted that for nearly an year stretching into large number of hearings, several opportunities were given to the Crl.R.P.No.142/2011 8 accused to cross-examine PW-1 and the accused has in fact cross-examined PW-1 at the first instance, as such, the petitioner now cannot contend that he was not given sufficient opportunity to cross-examine PW-1.
9. A perusal of the order sheets maintained by the Trial Court would go to show that in the criminal case, for the first time the matter was posted for the cross-examination of PW-1 by the accused was on 16.10.2006. On the said day, though PW-1 was present, the accused and his counsel remained absent. As such, cross-examination of PW-1 from the accused side was taken as nil and to secure the presence of the accused, non-bailable warrant was ordered.
Subsequently on 20.10.2016 at the application of the accused NBW issued against him was recalled. Crl.R.P.No.142/2011 9
On 08.11.2006, statement of the accused under S.313 Cr.P.C. was recorded.
On 20.11.2006, accused filed an application under S.311 Cr.P.C. which was allowed on cost of `200/- and the matter was posted for cross- examination of PW-1 on 20.12.2006. On 20.12.2006, accused sought for some time to proceed further in the matter, as such, as a last chance, the matter was fixed to 09.01.2007 for the cross-examination of PW-
1. On the said day, accused remained absent, as such, once again NBW was issued against him and the matter was posted for arguments on the main matter to be heard on 23.01.2007.
On 23.01.2007, arguments from the complainant's side were heard and due to the absence of learned counsel for the accused and the accused, the argument on the part of the accused was taken as Crl.R.P.No.142/2011 10 'nil' and NBW was issued against the accused. The matter was posted for Judgment to be pronounced on 10.02.2007.
On 10.02.2007, once again the accused filed similar application under S.311 Cr.P.C. which was allowed on a cost of `100/- and the matter was again posted for cross-examination of PW-1 on 21.02.2007.
On 21.02.2007, PW-1 was cross-examined from the accused side. However, accused proposed for a settlement in the matter and the matter was posted to 05.03.2007.
On 05.03.2007, no settlement was reported and the matter was posted to 14.03.2007. On 14.03.2007, PW-1 and her counsel were present and the matter was posted for arguments on 23.03.2007. On 23.03.2007, PW-1 and her counsel were present. Crl.R.P.No.142/2011 11 However, no progress was made in the matter from the accused side. The matter was adjourned to 12.04.2007 for the cross of PW-1.
On 12.04.2007 though PW-1 was present, the accused had remained absent and no cross examination was done. Matter was posted to 25.04.2007.
On 25.04.2007, once again the accused filed an application under S.311 Cr.P.C. which came to be allowed on a cost of `500/- and the matter was posted to 09.05.2007. On 09.05.2007, PW-1 and her counsel were present. However, on the pretext of settlement, once again the matter was adjourned to 31.05.2007. On 31.05.2007, PW-1 and her counsel were present but no progress was made in the case and it stood adjourned to 14.06.2007.
Crl.R.P.No.142/201112
On 14.06.2007 also the same thing was repeated and though PW-1 was present, no progress was made and the matter was adjourned to 26.06.2007. On 26.06.2007, Further cross- examination of PW-1 was taken as 'nil' and the matter was posted for arguments on 06.07.2007.
On 06.07.2007, at the request of the accused side, for arguments, the matter was posted to 11.07.2007. On 11.07.2007, the arguments were heard and the matter was listed for Judgment to be pronounced on 12.07.2007. On 12.07.2007, the impugned Judgment was passed by the Trial Court.
10. The above chronological events clearly evidences that the Trial Court has given ample opportunities which can be called as more than reasonable to the accused to cross-examine PW-1 and Crl.R.P.No.142/2011 13 to put forth his defence in the matter. However the accused did not make use of the same for no valid reasons. Thus, when more reasonable and sufficient opportunities were granted to accused to further cross-examine PW-1 and enter his defence, since the accused has failed to make use of the same, now in the revision petition he cannot contend that no reasonable opportunity was given to him. As such, the argument of the learned amicus curiae for the petitioner on the said point is not acceptable.
11. The learned counsel for the revision petitioner as the second leg of his argument submitted that the accused has taken a specific defence that the cheque was stolen from his house, as such, there is no creditor and debtor relationship. He also submitted that there is no material to believe that complainant had any fund to lend amount to the defendant, as Crl.R.P.No.142/2011 14 such, there was no loan transaction between the parties.
The complainant in her examination-in-chief as PW-1 has stated that accused has availed a loan of `6,00,000/- from her. In her cross-examination from the accused's side dated 31.05.2007, apart from denying the suggestion that she had stolen a signed blank cheque from the house of the accused about an year back, she has also stated that she paid the loan amount to the accused on 07.03.2004 through two cheques each for `3,00,000/- after selling her house. The said submission made by the complainant as PW- 1 has not been denied from the accused side in the cross-examination of PW-1. On the other hand, the complainant has produced the bank pass book of her Savings Bank Account with Vijaya Bank of Rajajinagar Branch, Bengaluru of account No.SB 27406 marked at Crl.R.P.No.142/2011 15 Ex.P9 and her said Savings Bank Account Statement duly authenticated by the bank authorities at Ex.P10. The said pass book as well as bank statement clearly show that on 07.03.2004 vide cheque No.905838 the complainant had paid a sum of `3,00,000/- to Chikka Honnaiah and on 09.03.2004, another sum of `3,00,000/- was paid to the accused vide cheque No.905839. There was sufficient balance in the account of the complainant and the cheques were encashed by the accused. Thus, the undenied evidence of PW-1 corroborated by her bank account details at Exs.P9 and P10 clearly establish that the accused had availed the loan of `6,00,000/- from the complainant through two cheques of `3,00,000/- each. Therefore the argument of the learned amicus curiae for the petitioner that there was no creditor and debtor relationship between the parties is also not acceptable.
Crl.R.P.No.142/201116
12. The last leg of argument of learned amicus curiae for the petitioner was, that there was no service of notice demanding the payment of the cheque amount, upon the accused after the dishonour of the cheque. In that regard, learned amicus curiae submitted that in the very complaint itself, the complainant has stated that the legal notice sent to the accused returned unserved as not claimed. Therefore there is no service of notice.
Per contra, learned amicus curiae for the respondent in his arguments submitted that the complainant as PW-1 in her evidence has stated that notice was sent to the accused both under 'Registered Post Acknowledgement Due' and 'certificate of posting'. However, the notice sent through registered post was returned as 'not claimed'. Thus there is due service of notice. Further, the notice sent under Crl.R.P.No.142/2011 17 'certificate of posting' has been duly served upon the accused.
13. The complainant as PW-1 has got produced a copy of legal notice, postal receipt, certificate of posting receipt and returned RPAD postal cover at Exs.P3, P4, P5 and P6 respectively. The legal notice at Ex.P3 apart from explaining that the cheque issued by the accused has returned with banker's endorsement about insufficiency of funds, has also demanded the cheque amount from the accused. The returned postal cover at Ex.P6 shows that the addressee / accused even after having duly been intimated about the arrival of the registered postal article has not claimed it, as such, it has been returned to the sender.
14. Section 138 of the N.I. Act mandates giving of a legal notice but it does not mandate that the said Crl.R.P.No.142/2011 18 legal notice must be actually and physically placed in the hands of the accused. When a legal notice has been sent with the correct, complete and full address of the accused with appropriate postage and when the said notice was tendered to the accused, if the accused fails to accept the notice and thus fails to claim the notice sent to him under registered post, there is deemed service of notice upon him. In addition to the same, in the case on hand, the complainant has also sent notice through 'certificate of posting' as could be seen at Ex.P5. Therefore there is valid service of legal notice upon the accused. Thus, the last phase of argument canvassed by the learned amicus curiae for the petitioner alleging non service of notice upon the accused is also not acceptable.
15. Barring the above, the petitioner has not put forth any other ground worth considering. On the Crl.R.P.No.142/2011 19 other hand, both the Trial Court as well the Session Judge's Court after appreciating the materials placed before them in their proper perspective, have held the accused as guilty of offence punishable under S.138 of the N.I. Act. I do not find any illegality, incorrectness or perversity in the said order. Further, the quantum of sentence ordered by the Trial Court is also proportionate to the gravity of the guilt committed by the accused. As such, I am of the view that the impugned Judgment of conviction and Order on sentence does not warrant any interference at the hands of this Court. Consequently, I proceed to pass the following:
ORDER The revision petition stands dismissed as devoid of merit.
The Court while acknowledging the service rendered by Sri Amit Deshpande learned amicus Crl.R.P.No.142/2011 20 curiae for the revision petitioner and Dr. J.S. Halasetti learned Amicus Curiae for the respondent, recommends them an honorarium of a sum of not less than `3,000/- each, payable to them by the Registry.
Registry to transmit copies of this Order along with Trial Court and Sessions Court records to the concerned Courts, without delay.
Sd/-
JUDGE sac*