Karnataka High Court
Bharathi Dinesh Poojary vs Anil A V on 22 June, 2022
Author: H.B. Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.572 OF 2018
BETWEEN:
Bharathi Dinesh Poojary,
W/o. Dinesh Poojary,
Aged about 38 years
R/at: Swarnagiri Layout,
Bondel, Mangaluru,
D.K. District - 575332.
..Petitioner
(By Sri. B. Lethif, Advocate)
AND:
Anil A.V.,
S/o. Suryaganakaran,
Aged about 45 years,
R/at: Jananu House,
Agrahara, Chanthar village,
Brahmavara, Udupi Taluk,
Udupi District - 575 475.
.. Respondent
(By Sri. Deepak for Sri. A. Keshava Bhat, Advocate)
****
This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
praying to set aside the judgment/order of dismissal of
Crl.Appeal No.15/2017 dated 11-01-2018 passed by the 1st
Additional District and Sessions Judge, D.K. Mangaluru and order
of conviction and sentence dated 12-01-2017 passed in
Crl.R.P.No.572/2018
2
C.C.No.1743/2014 by the JMFC (V Court), Mangaluru D.K. by
allowing the above Revision Petition and acquit the petitioner and
grant such other relief/s deem fit to grant to the petitioner,
under the facts and circumstances of the case, in the interest of
justice.
This Criminal Revision Petition coming on for Admission,
through physical hearing/video conferencing hearing this day,
the Court made the following:
ORDER
The present petitioner as the accused was tried by the Court of the learned Judicial Magistrate First Class (V Court), Mangaluru, D.K. (hereinafter for brevity referred to as "the Trial Court"), in Criminal Case No.1743/2014, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as "the N.I. Act") and was convicted for the said offence by its judgment of conviction and order on sentence dated 12-01-2017.
Aggrieved by the same, the accused preferred a Criminal Appeal, in the Court of the learned I Additional Principal District and Sessions Judge, D.K. Mangalore, (hereinafter for brevity referred to as "the Sessions Judge's Court") in Criminal Appeal No.15/2017.
Crl.R.P.No.572/20183
The appeal was contested by the respondent who was the complainant in the Trial Court. The Sessions Judge's Court in its judgment and order dated 11-01-2018, dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 12-01-2017 in C.C.No.1743/2014.
Aggrieved by the said order, the accused has preferred this revision petition.
2. The summary of the case of the complainant in the Trial Court was that, at the request of the accused who was a known person to him, the complainant in the month of July 2014, had given a total sum of `6,00,000/- to her as hand loan. Towards the repayment of the loan amount, the accused had issued him a cheque bearing No.007907 dated 18-09-2014 drawn on the Corporation Bank, Konchadi Branch, Mangalore, for a sum of `6,00,000/- in favour of the complainant. When the said cheque was presented for its realisation, the same came to be returned with the Banker's endorsement 'funds insufficient'. Thereafter the Crl.R.P.No.572/2018 4 complainant got issued a legal notice dated 15-10-2014 to the accused demanding from her the payment of the cheque amount. The said notice came to be returned to the sender with the postal shara 'intimation served - not claimed- returned to the sender'. Since the cheque amount remained unpaid, the complainant was constrained to institute a criminal case against the accused in C.C.No.1743/2014, in the Trial Court, for the offence punishable under Section 138 of the N.I. Act.
3. The accused appeared in the Trial Court and contested the matter through her counsel. She pleaded not guilty and claimed to be tried, as such, the Trial Court proceeded to record the evidence. To prove his case, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-9 and closed his side. The accused got herself examined as DW-1 and got marked a single document as Ex.D-1, in her support.
4. The Trial Court after recording the evidence led before it and hearing both side, by its impugned judgment Crl.R.P.No.572/2018 5 of conviction and order on sentence dated 12-01-2017 convicted the accused for the offence punishable under Section 138 of the N.I. Act and ordered her to pay a fine of `6,05,000/- and in case of default of payment of fine amount, she was ordered to undergo Simple Imprisonment for a period of three months.
As observed above, Challenging the impugned judgments of conviction and order on sentence passed by the Trial Court as well the Sessions Judges Court, the accused has preferred this revision petition.
5. Learned counsel for the revision petitioner (accused) and learned counsel for the respondent/ complainant are appearing physically in the Court.
6. The Trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court.
Crl.R.P.No.572/20186
7. Though this matter was listed for Admission, with the consent from the learned counsels from both side, the same is taken up for final disposal.
8. Heard the learned counsels from both side. Perused the materials placed before this Court including the impugned judgments and the Trial Court and Sessions Judge's Court's records.
9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
10. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:
Whether the judgments under revision are illegal, perverse, and erroneous, warranting interference at the hands of this Court?
11. Learned counsel for the petitioner, in his argument submitted that it is not in dispute that the cheque at Ex.P-1 was drawn by the accused under her signature Crl.R.P.No.572/2018 7 and the same was returned unpaid for the reason of insufficiency of funds, however, he contends that the alleged legal notice was not actually served upon the accused/petitioner herein. It is also his contention that there was no loan transaction between the complainant and the accused, however, the cheque in question given by the accused to one Sri. Dayananda in connection with a Gas Agency was misused in the form of he getting the said cheque presented through complainant for its realisation. With this, the learned counsel submitted that the said defence taken by the accused was not properly considered by the Trial Court and also the Sessions Judge's Court.
12. Learned counsel for the complainant/respondent herein, in his argument submitted that, the complainant has explained when and in how many instalments the loan was given to the accused, as such, the accused cannot contend the absence of any loan transaction between them. Admittedly, the cheque was drawn by the accused in favour of the complainant which has stood returned unpaid, as Crl.R.P.No.572/2018 8 such, the accused, in order to avoid her liability towards the complainant has taken false defences in her support and that she has also failed to establish any of those defences taken by her.
13. The complainant as PW-1 in his evidence has reiterated the contentions taken up by him in his complaint. In his further examination-in-chief, he has given the details as to when and in how many instalments the alleged loan amount was given to the accused. He has stated that on the date 17-07-2014, a sum of `1,20,000/- was transferred to the account of the accused under NEFT. In that connection, he has got produced his Pass Book at Ex.P-7 and got marked the relevant entry at Ex.P-7(a). He has further stated that on the date 21-07-2014, he withdrew a sum of `2,00,000/- from his Bank and given the same in cash to the accused. He also stated that, on the date 31-07-2014, he withdrew another sum of `1,80,000/- from his Bank account, out of which, he has paid `1,30,000/- in cash to the accused/petitioner herein. The witness has also Crl.R.P.No.572/2018 9 stated that, on the date 17-07-2014, he has also transferred another sum of `1,50,000/- to the account of the accused from his Bank account of Federal Bank. In that regard, he has got produced and marked the said Pass Book at Ex.P-8 and the relevant entry at Ex.P-8(a). These details of the transactions between the complainant and the accused/petitioner herein have not been specifically denied in her cross-examination, on the other hand, it was only attempted to elicit from her that these details of the instalments of loan said to have been given to the accused have not been clearly mentioned in the complaint. However, the said contention of the alleged non- mentioning of the details of the loan amount did not shake the evidence of PW-1 given in his examination-in-chief, since a legal presumption about the existence of a legally enforceable debt forms in favour of the complainant.
14. The complainant has contended as PW-1 that, a legal notice, demanding the payment of the cheque amount was also issued to the accused under the Registered Post Crl.R.P.No.572/2018 10 Acknowledgment Due (RPAD), demanding from her the payment of the cheque amount, which is at Ex.P-1. However, the said notice was returned to the sender with postal endorsement "party intimation served - not claimed
- returned to sender". In that regard, the complainant has produced the original returned cheque at Ex.P-1; Banker's endorsement, showing that the cheque has been returned unpaid for the reason of insufficiency of funds at Ex.P-2; copy of the legal notice at Ex.P-3; postal receipt at Ex.P-4, returned postal cover at Ex.P-5 and original notice that was sent under Ex.P-5, at Ex.P-6. These exhibits have not been specifically denied or disputed from the accused's side.
15. A perusal of the returned postal cover would go to show that, the notice was sent to the accused, however, it was returned to the sender since the accused did not claim the said notice. Though an attempt was made in the cross- examination of PW-1 to show that the notice was not sent to the correct address of the accused/petitioner herein, Crl.R.P.No.572/2018 11 however, those suggestions were not admitted as true by the complainant. On the other hand, admittedly, the petitioner herein (accused) was a former Corporator of the Corporation of Mangalore, as such, she would be apart from being a social worker, a known figure in the city. Further more, the postal shara does not mention that the address was incorrect. However, it shows that when the postal article was attempted to be served upon the accused, she had remained absent. However, the party intimation was served. Despite serving such party intimation, the addressee did not claim the notice, as such, with the shara of party not claiming the notice, it was sent back to the sender. Therefore, the argument of the learned counsel for the accused/petitioner that there was no service of notice upon the accused, is also not acceptable.
16. In the above circumstance, the only option left out for the accused was to rebut the presumption which had already formed in favour of the complainant of a legally enforceable debt, under Section 139 of the N.I. Act. Crl.R.P.No.572/2018 12
In the said process, the accused has taken two contentions. The first contention was that, the complainant was a stranger to her. Regarding the said contention, except making a suggestion to PW-1 in his cross- examination and also the accused who got herself examined as DW-1, making such a statement in her examination-in-chief, no corroboration was placed by the accused/petitioner. On the contrary, from the accused's side, it was suggested to PW-1 that one Sri.Dayananda was the neighbour of the complainant. Further, it was elicited in the cross-examination of PW-1 that the said Dayananda and the complainant were known to each other and they were friends. According to the complainant, the accused was introduced to him through the said Dayananda. Therefore, the first contention of the learned counsel for the complainant that the accused was known to him stands established, as such, the defence of the accused that the complainant was a stranger to her, is not acceptable. Crl.R.P.No.572/2018 13
The second defence taken by the accused was that, the cheque in question was delivered by her to said Sri. Dayananda towards a Gas Agency, however, the said Dayananda has got the said cheque presented through the complainant.
Even with respect to this defence also, except making suggestions to PW-1 in his cross-examination and making such statement in her examination-in-chief as DW-1, the accused has not placed any corroborative materials before the Court. There is nothing on record to show that any such Gas Agency transaction had taken place between the said Sri. Dayanada and the accused and that the cheque in question at Ex.P-1 was delivered by the accused to the said Sri. Dayananda. In that regard, from the complainant's side, a question was put to DW-1 in her cross-examination as to whether she was willing to examine the said Dayananda. However, for that also, the accused, as DW-1, replied stating that the complainant can examine him, if required. Thus, the accused who had an opportunity to Crl.R.P.No.572/2018 14 examine the said Sri. Dayananda on her behalf and to take his support for her alleged defence, also did not make any such attempt, but rather shown her dis-inclination to examine the said Sri. Dayananda.
17. Lastly, even according to the accused, she has not given any Police complaint towards the alleged misuse of the cheque in question by the complainant, which, according to the accused, was given to one Sri. Dayananda. In her cross-examination, DW-1 has specifically stated about she delivering the cheque to Sri. Dayananda and that the complainant misusing the very same cheque, has not been complained to the Police or no action in that regard was taken by her. Thus, it is established that despite the accused having sufficient opportunities to substantiate her defence in the matter, but confined only in making few suggestions to PW-1 in his cross-examination and making the statements as DW-1, has not succeeded in rebutting the presumption that was formed in favour of the complainant.
Crl.R.P.No.572/201815
18. It is appreciating these evidence placed before it, the Trial Court has rightly convicted the accused for the alleged guilt and sentenced her proportionate to the proven guilt, which was further confirmed by the learned Sessions Judge's Court. Hence, I do not find any reasons to interfere in the impugned judgments of conviction and order on sentence passed by both the Trial Court as well the Sessions Judge's Court.
Accordingly, I proceed to pass the following:
ORDER The Criminal Revision Petition stands dismissed as devoid of any merit.
Registry to transmit a copy of this order to both the Trial Court and also the Sessions Judge's Court along with their respective records, at the earliest.
Sd/-
JUDGE BMV*