Karnataka High Court
Sri P M Rajan S/O K M P Chettiar vs Sri P Prakash Prop: Powergen Systems on 16 September, 2009
C LRP 2288 2005
IN THE HIGH COURT OF KA1RNAT,/XKA AT BAKTGALOR
DATED THIS THE 16"?" DAY OF SEPTEMBER 2009
BEFORE
THE HON'BLE MRJUSTICE A.S.PACHHAPURE ._
CRIMINAL REVISION PETITION No.2288/2005f
BETWEEN
Sri. RM. Rajan,
S/0 K.1\/LP. Chettiar, 7
Hindu,
Aged about 55 years,
R/at No.698, 113* Cross,
M.C. Layout, _ ¢_
Bangalore 560 040. _ PE'i'{TIQ~NER/S
(By Sri. S. Raina Prasacl, _
AND
Sri. P. PraI{asE'1,A '
Prop: Powergerg, _ .
B.U.A. No.299"/2.56,,
_ 16th Ma.in,"1S'~ cros,-:.=,.__ _____
Madee-hwara Layout,
V ' V Near --B'1'1'./{V Layo1;tt __{2"d Stage),
B.ar:ga1ore_:'<5s0 0,76, RESPONDENT/S
E Adv.)
*****
.. AA ' This Criminal Revision Petition is filed under Section 397
Tr"/we 40.1 Cr.P.C. praying to set aside the order dt.25.}0.05 in
--...'CrI',A. No.78/05 on the file of the District and S.J., and 19.0.,
Bangalore Rural District, Bangaiore and the order
2 Crl.RP 2288/2005
dt.18.7.2005 on the file of the C.J.M., Bangalore Rural District,
Bangalore in C.C.No. 1262/02.
This Criminal Revision Petition coming on .for"fFliiial
hearing, this day, the Court, made the following: ' 2' '
ORDER
The petitioner has challenged sentence for the offence punishable thee' Negotiable Instruments Act Act' for short) on a trial held 'l.i\dsieli;tional,.g:l'Chief Metropolitan' Magistrate, Bangalore, ivgafapeal before the Sessions Court, 53*'
2. 'E'ie=facts rele*e*ant.gfb.r thepurpose of this revision are as underzl'-. " C Iwillgg be referring the parties as per their rank before lth'egT1""ial Court for thellllourpose of convenience.
" 'nletitionler herein is the accused whereas the
-respon'den't_gis' the complainant who instituted his complaint if if V 'f'undcr..Section 200 Cr.P.C. alleging that he is the manufacturer llead': acid batteries and during the course of business
-«transaction, he came in contact with the accused who is pciv 3 Cr1.RP 2288/2005 engaged in the business of import and export of non ferrous metals such as lead materials etc. During the course of interactions, the accused approached the complainapntll loan of Rs.3,35,000/-- for clearing some financial faced by the accused. The complairiant r accused could be a prospective supplier the amount of Rs.3,35,000/-. 'lI»1*.!.:vc?jl'"C_QmplVai.nan_tlfurther'"states 'V V that despite several requests accused./h.eglected to pay the said loan arnoulntll and finally on 16--7»~2000, the accused No.372162 dated Ltd., K.G.Nagar, Bangalorev,__for_ - for the discharge of the loan 'cheque was presented to the banker for encashmcnt" aridlit. returned with an endorsement of _ir1suffic.ier1t; fimd"s.._l_yTvhereafter, the complainant issued the Zlfnoticer dated _l24...v1.200'1 by registered post and also under celrtifi-hate" and the accused did not receive the notice sent by reg1s'tered post and did not comply the demand. In the it"'::T'.:"'circumstances, the complainant approached the Trial Court complaint on these facts. Z94.
4 Crl.RP 2288/2005
3. The Trial Court took the cognizance, issued the process and on appearance of the accused, the plea was recorded and thereafter the complainant examined hinislelf as PW. 1 and in his evidence got marked the document.s~~Efxs;__l'.ll.l R5. The statement of the accused was recordedpunderjfiection _ 313 Cr.P.C. The accused has taken defence -of and has been examined as DW.1.'7.. The 'I'I:iE;l'Cour=tl"'on'*r.p appreciation of the material on convicted it for the offence punishable~nnderwserctilon,_l38tloflthej Act and ordered to pay the fine and on deposit of the fine amouni';o:pt'o. of Rs.3,90,000/c to the complaina:ntil"anVd_ -- to the State as fine. and sentence, the accused approached "theliSVes'sioans criminal appeal and the said _ appeal_{also. came" tovble dismissed. Aggrieved by the concurrent in conviction, the petitioner has approached this Court in" refision. .' ~,_ ~ ~ . y A learned counsel for the petitioner though called " }'fr__t'wice is absent. in the circumstances, I have heard the learned for the respondent. The points that arise for my l ..con§3ideration are:
b/\.
5 Crl.RP 2288/2005 i. Whether the conviction of the petitioner for the offence under Section 138 of the Act and the sentence thereon as ordered by the Trial Court and confirmed subject to somegh. modification in appeal is illegal and perverse?
ii. What order'?
5. I have scrutinised the evidence 'lbylthe* also the documents admitted inthe evidence.
the evidence and the allegationsin'-.thc.._»complain_t reveal that the complainant and the"accused2.j_were.';l:ncwn to each other and that the accused admitsvthe issuance odfltlile cheque under his cohtildbe seen from his cross examination,' heladniits ithatl"he..--has put in his signature at two places on the '"chequev--.'at'=_ElX";I5.1 one signature is on the lower '"'poI'tion}'o§_ cheo#u.e"wliereas the other is with regard to the V'correction'-ofitheiname of the complainant payee. The fact that thereis a correction and that he has put in his signature for _ _ the correction' done by him would lead to the inference that the of the cheque are in the hand writing of the accused, ___"'particularly as could be seen from the hand writing of the it of the payee and the amount of the cheque it reveals that as/\ 5 Crl.RP 2288/2005 it is in the same handwriting. It is in these circumstances, if the allegations made are taken into consideration.» the admission made by the accused would lead inference that the accused issued the cheque for to the complainant dated 16.7.200{3'.'"'In--the lof-Tthi's3 admission, if the evidence of PW.l is (into, acquaintance with the accuser_jv:l'*-glnd tlthereblygj theft contents.
6. It is relevant to cheque was returned with funds, the complainant and the said notice was refusedlllbyie 'I'hel._elnvelope has been produced at Ex.P.4,ll\'the under certificate of posting and the address given. in'=_th'e"postal envelope is not in dispute.
" at..pro.5umption--*arises under Section 1 14 of the Indian Act lfreglarding the due service of the notice to the accused. once the accused has received the notice, he was bound to reply the notice putting forth the defence and in if «the blank cheque was given by him, he could have prepllied the notice of the complainant by taking such a defence. uhilaving received the notice, he did not reply and therefore, this {>4 7 Crl.RP 2288/2005 circumstance in my opinion favours the complainant. Apart from this, it is relevant to note that the complainant has consistently stated with regard to the advancement of the loan, issuance of the cheque towards the discharge of amount, presentation of the cheque for . with an endorsement of insufficient funds' 3"' issuance of demand notice. 80 the eviden._c'e..of the'Acornpl;f§inaiV1_t is consistent, cogent and trust worthy and in thisvilcopntezgt if the ; provisions of Section 139 of are ..looked} into, a presumption could be r_egardii1g~..vthe_p issuance of the cheque by the accused tovva1*ds' v_th_e of the debt. Furthermore, '_to_:thei e_ev1'denCve".of'*PW.1 and his cross examinati_on,_ the"aecused"~himseli' admits the cheque having been issuedand are in his hand writing. 80 taking _ into ecjnsideration evidence of DW.1 and the materials I am of the opinion that the presumption 139 of the Act is not rebutted. Thereby. the C'o--urt.s' 'b--slow have taken into consideration the material i.",i"----.placed onVrecord and on proper appreciation of the same have aconvicted the petitioner for the offence under Section 138 of the 'Act: Even as regards the fine amount is concerned, the cheque 33 3' 'ttvvas for Rs.3,35,000/-- and the lower appellate Court has
04., 8 CrE.RP 2288/2005 awarded the fine of Rs.3,95,000/-- inclusive of the compensation payable to the complainant. I do not think--'that it is on the higher side. in that View of the matter, I No.1 in negative and proceed to pass the following'; . i "ii ORDER 1 The revision petition is disiiaiesech' _ . .: mi ' Eufieé JL