Karnataka High Court
Mayyaddi vs M Keshava on 4 December, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRL.RP. NO.666/2020
BETWEEN
MAYYADDI
S/O UNNI SAB,
AGED ABOUT 50 YEARS,
FISH MERCHANT,
R/O MARKET ROAD,
KOPPA TOWN, KOPPA TALUK,
CHICKMAGALUR DISTRICT-577126.
... PETITIONER
(BY SRI THUSHANATH C.V, ADV.)
AND
M.KESHAVA
S/O MANJAPPA H.M,
AGED ABOUT 46 YEARS,
PROPRIETOR, MCC LODGE,
KOPPA TOWN, KOPPA TALUK,
CHIKKAMAGALUR DISTRICT-577126.
... RESPONDENT
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO ALLOW THIS CRL.RP BY SETTING ASIDE THE JUDGMENT
DATED 24.08.2018 PASSED IN C.C.NO.96/2018
(C.C.NO.299/2011) ON THE FILE OF THE SR.CIVIL JUDGE AND
JMFC AT N.R.PURA, ITINERATE AT KOPPA AND CONFIRMED BY
THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
2
CHIKKAMAGALURU IN ITS JUDGMENT DATED 11.03.2020
PASSED IN CRL.A.NO.39/2019 AND ACQUIT THE PETITIONER BY
ALLOWING THIS RP.
THIS CRL.R.P COMING ON FOR 'ORDERS', THIS DAY THE
COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel for petitioner. The compliance of the office objections at Sl. No.1 is dispensed with for the present. In so far as the objection raised by the office at Sl. No.2 is concerned, since the time for filing the petition/appeal has been extended by the general orders of this court due to Covid-19 pandemic, the petition is in time and hence, I.A. 1/2020 is disposed of as unnecessary.
2. Heard the learned counsel for petitioner and perused the records.
3. The petitioner has invoked the jurisdiction under Section 397 of Cr.P.C. challenging the concurrent judgments rendered by the courts below holding the petitioner guilty of the offence punishable under Section 138 of Negotiable Instruments Act (for short 'NI Act). The case of the complainant is that the accused 3 borrowed a hand loan of Rs.1,75,000/- from the complainant in the second week of August, 2010 and promised to repay the same within one month. After several demands made by the complainant, the accused issued a cheque dated 20.09.2010 for Rs.1,75,000/- bearing No.020504. The said cheque when presented for encashment has dishonoured for insufficient funds. The complainant issued legal notice to the accused 22.10.2010. Upon receiving the legal notice the accused approached the complainant and entered into a compromise and paid a sum of Rs.45,000/- in cash and towards the balance Rs.1,30,000/- issued a cheque bearing 020505 drawn on Syndicate Bank, Koppa-Kadur Branch. Even the said cheque when presented for encashment came to be dishonoured for insufficient funds. The complainant got issued a notice which was duly served on 18.02.2011, the accused failed to comply with the demand and hence action was initiated against the petitioner-accused under Section 138 of NI Act.
4. In the course of trial the complainant examined himself as PW-1 and produced the dishonoured cheque as Ex.P1, Bank 4 Endorsements as Ex.P2 and P3. Legal notice, Ex.P4, the postal receipts as Ex.P5 and P6 and complaint lodged before the postal department at Ex.P7 and the reply given by the postal department as Ex.P8 for having delivered the notice to the accused. Considering all these material, the trial court found the petitioner guilty of the offence punishable under Section 138 of NI Act and accordingly, sentenced him to pay a sum of Rs.1,70,000/- and in default to pay the fine, ordered imprisonment for a period of two months. This judgment is confirmed by the II Addl. District and Sessions Judge, Chikkamagaluru in Crl.A.39/2019 dated 11.03.2020.
5. The learned counsel for the petitioner contends that the courts below failed to note that the cheque in question was issued in respect of a different transaction and the signature of the accused differs. On perusal of the impugned orders, I do not find any substance in the submission of the learned counsel. The defence set up by the petitioner-accused before the trial court is that he had given the cheque in question to one Kidao. PW-1 in his cross examination unequivocally stated that he does 5 not know any person by name Kidao. The accused neither entered the witness box to prove his alleged transaction with Kidao nor has he examined the aforesaid Kidao in order to show that the cheque in question was given by him to Kidao. He did not put forward this defence in his reply statement. Under the said circumstances, the petitioner having failed to substantiate his defence even with the standards of preponderance of probabilities the courts below were justified in holding that the petitioner/accused has failed to rebut the positive evidence produced by the complainant. There is absolutely no ground to interfere with the impugned judgments, much less under Section 397 of Cr.P.C.
Having regard to the conduct of the petitioner in allowing even the second cheque to get dishonored, the trial court ought to have imposed double the cheque amount towards the fine. However, as the respondent-complainant has not preferred any appeal seeking enhancement, I desist from passing any order on the sentence imposed by the trial court. As the petitioner has failed to make out any grounds for admission of the petition and 6 having failed to demonstrate any error or infirmity in the proceedings conducted by the courts below, warranting interference under Section 397 of Cr.P.C., petition is dismissed at the admission stage.
Sd/-
JUDGE Chs CT-HR