Karnataka High Court
Sri T. Babu Vijendra S/O Tulesoji Rao vs Sri. Ramesha S/O Late Madegowda on 19 August, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.469 OF 2011
BETWEEN:
Sri. T. Babu Vijendra,
S/o. Tulesoji Rao,
(Retired Inspector),
39 years, Proprietor,
M/s. Chirashreem Enterprises,
No.3/1-10, I-Cross
M.C.Layout, Vijayanagar,
Bangalore-560 079. .. PETITIONER
(By Sri S.S.Haveri, Advocate)
AND:
Sri. Ramesha
S/o. Late Madegowda,
43 years,
R/at:No.7/2, 2nd Floor,
14th Cross, Agrahara Dasarahalli,
Magadi Main Road,
Bangalore-560 079. .. RESPONDENT
(By Sri. Gangaiah, Advocate)
Crl.R.P.No.469/2011
2
This Criminal Revision Petition is filed under Section
397 read with Section 401 of Cr.P.C. praying to set aside
the judgment and award of sentence passed by the
learned City Fast Track (Sessions) Judge, Bangalore City
(F.T.C. No.VI) in Crl. Appeal No.701/2010 dated
11.02.2011 confirming the Judgment and Order on
sentence passed the XVI Addl. Chief Metropolitan
Magistrate, Bangalore, in C.C.No.2087/2009, dated
08.09.2010, with costs, etc.
This Criminal Revision Petition coming on for Final
Hearing, this day, the Court made the following:
ORDER
The petitioner is an accused in the Court of learned XVI Additional Chief Metropolitan Magistrate, Bangalore City (hereinafter referred to as 'the Trial Court) in C.C. No.2087/2009 who was tried for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, hereinafter referred to as 'the N.I. Act'). Crl.R.P.No.469/2011 3
2. The summary of the case of the complainant in the Trial Court was that the accused was well-known to him, that on 10.05.2008, the accused took a handloan of a sum of `1,50,000/- from him for improvement of his business. The accused agreed to repay the said amount within four months. At the demand made by the complainant after the lapse of the agreed period, the accused, towards return of the handloan, issued a cheque for a sum of `1,50,000/- in favour of the complainant. The said cheque when presented for realisation was returned unpaid by the banker with the shara 'funds insufficient'. Thereafter the complainant issued a notice both under 'registered post' as well under 'certificate of posting' to the accused demanding the repayment of the cheque amount. Since the accused failed to meet the demand, the complainant was Crl.R.P.No.469/2011 4 constrained to institute the complaint under Section 200 of the Code of Criminal Procedure.
Since the accused pleaded not guilty, the trial was held wherein the complainant got himself examined as PW-1 and got marked documents from Exs.P1 to P20. The accused got himself examined as DW-1 and got examined four more witnesses as DW- 2, DW-3, DW-4 and DW-5 and got marked documents from Exs.D1 to D6. The Trial Court, for convenience of identification of certain documents placed before it from the accused side, marked them as Exs. S1 to S9. After hearing arguments from both side, the Trial Court by its impugned Judgment of conviction and Order on sentence dated 08.09.2010, 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 Crl.R.P.No.469/2011 5 of the City Fast Track (Sessions) Judge, Bangalore City(F.T.C. No.VI)(for brevity, hereinafter referred to as 'the Court of appeal') in Crl.A. No.701/2010. The said Court, by its Judgment dated 11.02.2011 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.
5. Heard arguments of the learned counsel for the petitioner. In spite of granting sufficient opportunities, learned counsel for the respondent has not appeared either physically or through Video Conferencing for addressing his arguments. Hence, his argument is taken as nil.
Crl.R.P.No.469/20116
6. The point that arise for my consideration is, "whether the Judgment of conviction and Order on sentence passed by the Trial Court and confirmed by the Court of appeal is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this Court?"
7. Learned counsel for the petitioner who has appeared through Video Conference in his brief arguments submitted that he would challenge the impugned Judgments only on the point that the Trial Court as well as the Court of appeal have failed to notice that the complainant had no capacity to lend a sum of `1,50,000/-. They have also failed to notice that the legal notice said to have been issued after dishonour of the cheque was not served upon the accused and lastly, as on the date of the alleged loan transaction, the accused was hospitalized, as such, Crl.R.P.No.469/2011 7 the question of he visiting the complainant and availing handloan does not arise.
8. In view of the fact that the learned counsel for the petitioner has confined the scope of this revision petition only in verifying the correctness of analysis of evidence with respect to the capacity of the complainant to lend money, the service of notice upon the accused and the alleged hospitalisation of the accused as on the date of the loan transaction, the rest of the findings of both the Trial Court as well as the Court of appeal which are concurrent with respect to the fact of issuance of cheque by the accused to the complainant as per Ex.P2 and dishonour of the said cheque due to insufficiency of funds as per Ex.P3 need not be revisited again.
9. Though the accused as DW-1 has taken a defence that the cheque leaf which he had kept in his Crl.R.P.No.469/2011 8 house was stolen by the complainant, however, in the absence of any corroborative evidence in that regard, the said defence does not appear to be trustworthy. Moreover, the accused is stated to be son of a retired Police Inspector. If that were to be the case, had really there been any theft of a negotiable instrument, then, the accused was expected to lodge a necessary police complaint and pursued the matter immediately which he has not done. On the other hand, the cross- examination of DW-1 coupled with Exs.S1 to S9 go to show that alleging that the accused had taken a loan of `1,50,000/- on 10.05.2008 and in connection to the same, the cheque issued by him also returned unpaid with regard to which, when the wife of the complainant is said to have visited the house of the accused, the accused is said to have abused her in filthy language and threatened to her life. In that connection, a complaint came to be lodged by the wife Crl.R.P.No.469/2011 9 of the complainant in Kamakshipalya Police Station and the said police are also said to have filed a charge-sheet against the accused for the offences punishable under Sections 504 and 506 of IPC. All these aspects have been properly appreciated by the Trial Court as well as the Court of appeal and they have arrived at an uniform finding that the complainant has proved the fact of issuance of cheque in question to the complainant as per Ex.P2 and about its dishonour as per endorsement at Ex.P3. Said finding does not warrant any interference by this Court.
10. The next question which was agitated by the learned counsel for the petitioner is about the alleged financial incapacity of the complainant to lend a sum of `1,50,000/- to the accused. In that connection, learned counsel for the petitioner submitted that complainant was running an Crl.R.P.No.469/2011 10 autorickshaw, as such, he had no sufficient source to lend money to the accused.
PW-1 has stated that he was owning an autorickshaw and running it by himself. In that
regard, he has also produced a B-register extract at Ex.P7 which shows that the complainant was the owner of autorickshaw bearing registration No.KA-01- A-291. In addition to that, complainant has also produced his business identity card at Ex.P8 and business commission receipts from Ex.P9 to Ex.P20. By producing these documents, the complainant has contended that apart from running autorickshaw, he was also doing insurance business and was getting considerable commission every month which has enabled him to save the amount sufficient to lend money to the accused.
Except making denial suggestions in the cross examination of PW-1, nothing could be elicited from Crl.R.P.No.469/2011 11 the accused side to suspect the said oral evidence of PW-1 or documentary proof from Exs.P7 to P20. A perusal of Exs.P7 to P20 also goes to show that every month, complainant was getting some amount ranging from `1,500/- to `2,000/- as commission as an Insurance Agent under M/s. PACL India Limited. Thus, there is nothing to suspect or disbelieve that the complainant had no source of income or financial capacity to lend loan in question to the accused.
11. Learned counsel for the petitioner also submitted that as on the date of the loan transaction, the accused was hospitalised, as such, the question of he availing loan does not arise. In that regard, petitioner relied upon the documents at Exs.D2 and D3. Both these documents are shown to be discharge summaries. Ex.D3 is shown to have been issued by M/s. Spandana Nursing Home, showing that from Crl.R.P.No.469/2011 12 12.09.2008 to 17.09.2008, the accused was treated in their hospital as an inpatient and was diagonised as BPAD- Maina with Pschyosis. The discharge summary at Ex.D2 shows that from 17.09.2008 to 28.11.2008, the accused was treated in 'Spandana Hospitals Pvt. Ltd.' and was diagnosed as 'Alcohol Dependent Syndrome with Bipolar Affective Disorder'.
In the cross-examination of DW-1, he has stated that while he was admitted in the hospital, he was unconscious. However, none of these two medical documents have revealed that he was unconscious. Further, a total period of these discharge summaries would go to show that patient was given treatment in the hospital from 12.09.2008 till 28.11.2008 which is for a period of more than two months. It is really surprising as whether the accused was unconscious for a period of more than two months to which there Crl.R.P.No.469/2011 13 is no explanation in that regard as such, from the accused side. The complainant has specifically and vehemently opposed these hospital documents about its genuineness and authenticity. Admittedly, these documents were not marked through the treating doctor. The author of the documents at Exs.D2 and D3 was also not examined.
Further, neither of these two medical documents would show any reason as to why the accused was shifted from one hospital to another hospital but still was taking the treatment by the same doctor by name Dr. M. Srinivas. As observed above, the said doctor was not examined as a witness. Further, these two discharge summaries at Exs.D2 and D3 have also not been signed by the said doctor. Somebody else on behalf of the said doctor appears to have signed the documents without even mentioning their name and Crl.R.P.No.469/2011 14 designation. All these lead to suspicious circumstances about the alleged contents of these two documents, as such, do not inspire confidence to believe them. Therefore, mere marking of Exs.D2 and D3 would neither strengthen the defence of the accused nor weaken the case of the complainant. As such, the finding of both the Trial Court as well as the Court of appeal that the accused failed to establish that he was hospitalised on the date of the loan transaction cannot be found fault with.
12. Lastly, the argument of the learned counsel for the petitioner was that the legal notice in question, a copy of which is at Ex.P4, was not served on the accused.
No doubt, the notice sent to the accused has been returned as per Ex.P6 which is a returned postal cover with the postal shara 'addressee left'. In that regard, the accused got examined one Sri N. Crl.R.P.No.469/2011 15 Chandrachary as DW-4 who was stated to be the postman. The said witness in his evidence has stated that the registered postal article at Ex.P6 was not delivered to the accused as the accused had already left the address mentioned on the cover. In his cross- examination, this witness also stated that, about non availability of the accused, he enquired with the neighbours in the address and came to know that accused had already left the premises.
Apart from DW-4, the accused also got examined one Sri P.G. Sathyanarayana Setty, alleged owner of the premises as DW-2. The said witness is also shown to have stated that the business premises was leased to the wife of the accused who had vacated the premises on 16.11.2008. The denial suggestions made to him in his cross-examination were not admitted as true by him.
Crl.R.P.No.469/201116
13. According to DW-1 and DW-2, the address shown on the legal notice was the address of a commercial business premises leased to the wife of the accused. However, it is noteworthy that summons issued by the Trial Court to the accused was received by his father at the very same address as could be seen at Ex.P7. It is the very same address which appears in the cause-title in the complaint and reproduced in the summons at Ex.P7, was mentioned on the legal notice at Ex.P4 and the registered postal cover at Ex.P6. Thus, the cumulative effect of these facts is that the complainant has sent notice to the very same address of what he has shown in the complaint and when the summons upon the complaint could reach the accused why not the notice? Therefore, it is established that the complainant had furnished the correct address of the accused and the Crl.R.P.No.469/2011 17 postal article was sent to the very same address with the adequate postage.
14. In addition to the above, the contention of the accused that the address shown on the legal notice was not his address is also not acceptable for the reason that the evidence of PW-1 would go to show that apart from sending legal notice under registered post, he had also sent one more such notice under certificate of posting to the address seen at Ex.P5. DW-4 the postman who has spoken about the non delivery of the registered postal article has nowhere whispered about the non delivery of the similar notice sent to the very same addressee under certificate of posting. Had really the addressee left, the postman would have written a shara on the said other postal article sent under certificate of posting also mentioning "addressee left and returned to the Crl.R.P.No.469/2011 18 sender". There is nothing in the evidence from the accused side about non delivery of notice sent to the accused under certificate of posting. These aspects not only establish the fact that the complainant had sent legal notice under registered post to the accused which, for the reasons best known to him, the accused failed to receive. However, a similar notice was received by him which was also sent by the complainant under certificate of posting. As such, the contention of the petitioner/accused that there is no service of legal notice regarding dishonour of cheque upon the accused is not acceptable. The finding of the Trial Court and the Court of appeal in that regard which have held that there is service of notice upon the accused cannot be found fault with.
15. Barring the above, the accused/petitioner has not placed any other grounds worth considering in this petition. The finding of the Trial Court as Crl.R.P.No.469/2011 19 confirmed by the Court of appeal that the complainant has proved that the accused has committed an offence punishable under S.138 of the N.I. Act cannot be found fault with in any manner. Further, the quantum of sentence ordered being proportionate to the gravity of the guilt proved against the accused, the same does not warrant any interference by this Court. Consequently, I proceed to pass the following:
ORDER The revision petition stands dismissed as devoid of merit.
Registry to transmit copies of this Order along with Trial Court and Appellate Court records to the concerned Courts, without delay.
Sd/-
JUDGE sac*