Karnataka High Court
Sri D Siddappa vs Sri G Onkarappa on 11 January, 2024
1 CRL.RP NO.1339 OF 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.1339 OF 2019
BETWEEN:
SRI D SIDDAPPA
HEAD MASTER OF GOVERNMENT
LOWER PRIMARY SCHOOL,
S/O. DODDAPPA,
AGED ABOUT 54 YEARS,
AMRUTHAPURA,
HOLALKERE TALUK,
CHITRADURGA DISTRICT - 578 101
...PETITIONER
(BY SRI. BASAVARAJ S SAPPANNAVAR, ADVOCATE)
AND:
SRI G ONKARAPPA
S/O. S. G. THIPPESWAMY,
AGED ABOUT 52 YEARS,
OCC AGRICULTURIST,
R/O. HEBBALU VILLAGE,
DAVANAGERE TALUK AND
DISTRICT - 578101
.....RESPONDENT
(BY SRI. CHANDRASHEKAR G M, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
OF CONVICTION DATED 14.06.2018 PASSED BY THE
JUDICIAL MAGISTRATE FIRST CLASS, FIRST COURT,
DAVANAGERE IN C.C.NO.2323/2015 AND ALSO THE
JUDGMENT DATED 18.10.2019 PASSED BY THE FIRST
ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
DAVANAGERE IN CRL.APPEAL NO.69/2018 DISMISSING THE
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY.
2 CRL.RP NO.1339 OF 2019
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 01.12.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
In this petition filed in Section 397 r/w 401 Cr.P.C, petitioner who is arraigned as accused has challenged his conviction and sentence for the offence punishable under Section 138 of N.I Act, which came to be confirmed by the Sessions Court, by dismissing the appeal filed by him.
2. For the sake of convenience of the parties are referred to by the rank before the trial Court.
3. Complainant filed the complaint against accused alleging offence under Section 138 of N.I. Act, contending that complainant and accused are known to each other. Complainant is working as teacher in a private school. He is also owning agricultural land at Hebbal village. On 19.10.2014, at the request of accused, complainant advanced hand loan of Rs.1,95,000/- by cash. Accused assured to repay the 3 CRL.RP NO.1339 OF 2019 same within six months. When he failed to keep up his promise, on the request and demand by the complainant, accused issued cheque dated 26.05.2015 for Rs.1,95,000/-. However, when it was presented for realization on the same day, it was returned dishonoured on the ground of "Funds insufficient". Complainant got issued a legal notice dated 05.06.2015. Though it is duly served, accused has neither paid the amount due nor sent any reply and hence the complaint.
4. After due service of summons, accused has appeared through the counsel and contested the matter.
5. In order to prove the allegation against the accused, the complainant has examined himself as PW-1 and relied upon Ex.P1 to 9.
6. During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the complainant.
7. In fact, he has also stepped into the witness box and examined himself as DW-1. He has examined 4 CRL.RP NO.1339 OF 2019 one Taragara Tirumalesha as DW-2. No documents are marked on behalf of the accused.
8. The trial Court accepted the case of the complainant and convicted the accused. He was sentenced to pay fine of Rs.2,20,000/- with default sentence.
9. Accused challenged the same before the Sessions Court in Crl.A.No.69/2018. However, it came to be dismissed, confirming the judgment and order of the trial Court.
10. Being aggrieved by the same, accused is before this Court, contending that the impugned judgment and order of the trial Court as well as the Session Court are illegal, erroneous, contrary to the facts and material on record. They are based on presumptions and assumptions. They are suffering from infirmities and without according any valid and sound reasoning. The notice is not served on the accused. The notice which was sent through the envelope at Ex.P5 is dated 5 CRL.RP NO.1339 OF 2019 22.06.2015 and therefore Ex.P4 is not the notice sent to the accused. In the absence of due service of notice, the complaint is not maintainable. The findings of the trial Court and Sessions Court on this aspect is without any basis and prays to allow the petition and acquit the accused.
11. In support of his arguments, the learned counsel for accused has relied upon the following decision:
(i) M/s Shakti Travels and Tours Vs. State of Bihar and Ors. (Shakti Travels)1
(ii) Mani Vs. State of Kerala Rep by Excise Inspector (Mani)2
12. On the other hand, learned counsel representing the complainant has supported the impugned judgment and order of the trial Court as well as the Session Court and sought for dismissal of the petition.
1 2000 (3) BLJR 2420 2 Crl.A.No.486/2007 6 CRL.RP NO.1339 OF 2019
13. In support of his arguments, the learned counsel for complainant has relied upon the following decisions:
(i) M.D.Ramakrishnaiah Vs. V.Javaregowda (M.D.Ramakrishnaiah)3
(ii) Smt.Shakuntala Devappa Vs. B.R.Ravishankar (Shakuntala Devappa)4
(iii) Rangappa Vs. Sri Mohan (Rangappa)5
14. Heard arguments of both sides and perused the record.
15. The accused admitted that the cheque in question is drawn on his account maintained with his banker and it bears his signature. Consequently, the presumption under Sections 118 and 139 of the N.I Act is operating in favour of the complainant that the cheque was issued towards repayment of any legally recoverable debt or liability, placing the initial burden on the accused to rebut the said presumption. However, accused dispute that he had borrowed hand loan of Rs.1,95,000/- and 3 2013 SCC Online Kar 2301: (2013) 3 Kant LJ 347 4 2014 SCC Online Kar 4701: (2014) 4 Kant LJ 52 5 (2010) 11 SCC 441 7 CRL.RP NO.1339 OF 2019 issued the subject cheque in favour of the complainant towards repayment of the same.
16. Accused has claimed that earlier he had borrowed a sum of Rs.25,000/- from DW-2 Taragara Tirumalesh and at that time he had issued a blank cheque and though he had repaid the said loan, the cheque was not returned to him and later on when he received notice from the Court, he realized that based on the said cheque, complainant has filed the complaint. The accused has also disputed that the legal notice is served on him and consequently, he has not sent reply to the legal notice and on that ground challenging the maintainability of complaint. During the course of cross- examination of the complainant, the accused has also challenged the financial capacity of complainant. In the light of the specific defence taken by the accused, the evidence led by both parties is required to be appreciated.
17. So far as the issue of legal notice is concerned, according to the complainant, Ex.P4 is the 8 CRL.RP NO.1339 OF 2019 legal notice. It is dated 05.06.2015. According to the complainant, it was sent through the postal envelope at Ex.P5. The same is returned with endorsement "The addressee remained absent on all the seven days when the postman visited the address and thereby he has not claimed it". Though the complainant has produced two postal receipts, he has not marked them. These receipts bear transaction number A RK849205077IN dated 05.06.2015 and A RK850015185IN. The complainant has claimed that two sets of notices were sent and out of them one is served as per the postal track report at Ex.P6. Ex.P6 relates to transaction number ARK 849205077IN. However, this document only refers to the fact that on 08.06.2015, the bag is opened, but does not reflect the fact that it is duly served.
18. It appears the learned counsel for complainant has addressed a letter to the post master enquiring about the service of notice sent through transaction ARK 849205077IN. The Post Master has issued reply dated 17.07.2015 stating that the said letter is duly served on 9 CRL.RP NO.1339 OF 2019 17.07.2015. However, this document is also not marked. From the unmarked documents, it is evident that the legal notice sent to the accused is duly served. For reasons best known to him, the learned counsel for complainant has failed to get these documents marked and consequently, as held in Mani, the unmarked document cannot be looked into.
19. Now the next question is whether the complainant has proved that before filing the complaint, the complainant has got issued a legal notice providing 15 days time to pay the amount due under the cheque and it is duly served on him. According to the complainant, the legal notice is dated 05.06.2015. In fact, the office copied the legal notice produced at Ex.P4 is also dated 05.06.2015. However, as per transaction number A RK850015185IN it is posted on 22.06.2015. It relates to postal envelope at Ex.P5. As evident from the postal seal it is received by the Ramagiri post office on 24.06.2015. The postman has taken it for service on 25.06.2005. Till 01.06.2015, for seven days, he has gone 10 CRL.RP NO.1339 OF 2019 to the address for serving the same. However, on all the seven days the accused has remained absent, and therefore it is returned to the sender.
20. During the cross-examination of the complainant i.e PW-1, the learned counsel for accused has got opened the envelope at Ex.P5 and taken out the copy of the legal notice contained therein and elicited that the legal notice therein is dated 22.06.2015. However, cleverly, he has avoided marking the same. The learned counsel for complainant has also not taken the pain to get it marked. At least the trial Court ought to have got it marked in 'C' series to enable the Court to look into the same. Now on the basis that according to the complaint averment, the legal notice is dated 05.06.2015, whereas the notice which was sent through Ex.P5 is dated 22.06.2015, the learned counsel for accused want to take advantage by contending that legal notice was not served on the accused. In the above facts and circumstances, it has become necessary to examine whether the legal notice calling upon the accused to pay 11 CRL.RP NO.1339 OF 2019 the amount due under the cheque within 15 days of service of notice is served on him or not.
21. At the outset, it is relevant to note that accused is not disputing his address to which the legal notice as per Ex.P5 was sent. It is sent to his residential address. He is also not disputing his working address. In the complaint, his working address is also given. Such being the case, the fact that the Postman has for seven days, visited his address in order to serve the postal envelope and accused has remained absent would draw presumption under Section 27 of the General Clauses Act. i.e, if any document requires to be served by post, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. In the light of the above presumption, the fact that the postman has visited the address of the accused on seven days and at the time of service, accused has remained 12 CRL.RP NO.1339 OF 2019 absent, it shall be presumed that the notice is duly served on the accused and intentionally he has failed to receive the same.
22. It is pertinent to note that in the complaint, the complainant claimed that notice was dated 05.06.2015, whereas the legal notice sent through the envelope at Ex.P5 is dated 22.06.2015. Now the question is whether this would affect the case of the complainant. Section 138(b) require that the complainant is required to send a legal notice to the accused within 30 days of receipt of information of dishonour of cheque from the bank and as per section 138 (c) the drawer of the cheque is required to make payment of the amount due under the cheque within 15 days of receipt of the notice, failing which the complainant is required to file the complaint within 30 days of expiry of 15 days of service of notice. Therefore, what date the legal notice contained is immaterial. The date of service of notice is the reckoning point from which 15 days is required to be calculated. Consequently, whether the legal notice is dated 13 CRL.RP NO.1339 OF 2019 05.06.2015 or 22.06.2015 is immaterial so long as it is duly served on the accused and complainant had provided him 15 days time to make payment.
23. Having regard to the fact that the postman has last visited the address of the accused on 01.06.2015, the date of service of notice is to be taken as 01.06.2015. Therefore, the period of 15 days is required to be calculated from 02.06.2015 and it expires on 16.06.2015. The complainant has filed the complaint on 15.07.2015 i.e within 30 days of expiry of 15 days of service of legal notice. Thus, there is compliance of Section 138(b) and 138 (c) of N.I Act. Therefore, it is not open to the accused to claim that there is no proper service of legal notice and on that ground the complaint would fail.
24. Now, coming to the merits of the case. As already noted accused admit that the cheque at Ex.P1 is drawn on his account, maintained with his banker and it bears his signature. Consequently, the presumption under Sections 118 and 139 of the N.I. Act operate in 14 CRL.RP NO.1339 OF 2019 favour of the complainant, placing the initial burden on the accused to prove otherwise. Admittedly, the accused has not sent any reply to the legal notice. As held by the Hon'ble Supreme Court in C.C. Alavi Haji vs Palapetty Muhammed & Anr (Alavi Haji)6, the intent and object of issue of legal notice is to provide an opportunity to the prompt drawer of legal notice to pay the amount due under the cheque and thereby avoid prosecution. However, if the complainant dispute his liability to pay the amount due under the cheque, it will also provide an opportunity to the accused to send a reply, enumerating the circumstances in which the cheque came to be issued or has reached the hands of the accused. By failing to receive the notice and send reply, the accused has lost the said opportunity. However, it will not prevent him from taking any specific defence.
25. In fact in Tedhi Sing Vs Narayan Das Mahant (Tedhi Singh)7, the Hon'ble Supreme Court held that, if in the legal notice, the accused has not challenged the 6 (2007) 6 SCC 555 7 2022 SCC OnLine SC 302 15 CRL.RP NO.1339 OF 2019 financial capacity of complainant, he need not at the first instance prove his financial capacity. However, if during the course of trial, the accused dispute the financial capacity of the complainant, then he is required to prove the same. In fact in APS Forex vs Shakti International Fashion Linkers Pvt. Ltd (APS Forex)8, the Hon'ble Supreme Court held that whenever accused rises issue of financial capacity of complainant in support of his probable defence, despite presumption in favour of the complainant regarding legally enforceable debt under Section 139 of N.I. Act, onus shifts again on complainant to prove his financial capacity by leading evidence, more particularly when it is a case of giving loan by cash and thereafter issue of cheque.
26. In the light of the ratio in the above decisions and having regard to the fact that the accused has challenged the financial capacity of the complainant, it is necessary to examine whether the he has succeeded in establishing that he had requisite financial capacity to 8 (2020) 12 SCC 724 16 CRL.RP NO.1339 OF 2019 pay Rs.1,95,000/- as on 19.10.2014. During the course of his examination-in-chief itself, the complainant has deposed that at the relevant point of time he was teaching in a private school. He is also owning 2 acres 25 guntas of land. Ex.P8 and 9 are the RTC extracts of the lands for the year 2016-17. They show that no crops were raised during the said year. The complainant has not produced the RTC extracts for the relevant year and also not produced any documents to show that he had raised any crops during the said, and what actually was the income derived from it. The complainant has also not produced any documents to show that he was teaching in a private school and was getting any income. During his cross- examination the complainant has stated that he was giving private tuitions and also has raised cow. However, except his self-serving statement, the complainant has not produced any evidence to prove the exact income derived from all these. Consequently, he has miserably failed to prove that as on 26.05.2015, he was having cash in a sum of Rs.1,95,000/- and lent the same to the accused.
17 CRL.RP NO.1339 OF 2019
27. On the other hand the accused has led evidence to prove that during 2007-08, he had requested for a loan of Rs.25,000/- from DW-2 Taragara Tirumalesh and issued the subject cheque in a blank form and in turn DW-2 managed to get Rs.25,000/- from the complainant and though the said amount was repaid, complainant failed to return the blank cheque. The fact that the entire cheque is not in the handwriting of accused except his signature also probabalise his defence. Both trial Court as well as the Sessions Court failed to examine this aspect and only on the basis of the fact that accused has not sent reply to the legal notice and presumption under Sections 118 and 139 of the N.I. Act proceeded to convict the accused and sentenced him. The impugned judgment and order have caused gross miscarriage of justice and contrary to the evidence placed on record and as such perverse. It is a fit case to interfere under Section 397 r/w 401 Cr.P.C. In the result, the petition succeed and accordingly the following: 18 CRL.RP NO.1339 OF 2019
ORDER
(i) Petition filed under Section 397 r/w 401 Cr.P.C by the accused is allowed.
(ii) The impugned Judgment and order dated 14.06.2018 in C.C.No.2323/2015 on the file of JMFC, Davanagere and judgment and order dated 18.10.2019 in Crl.A.No.69/2018 on the file of I Addl.District and Sessions Judge, Davanagere are set aside.
(iii) Consequently, the accused is acquitted for the offence punishable under Section 138 of N.I Act. His bail bond stand discharged.
(iv) The Registry is directed to send back the trial Court and Sessions Court records along with copy of this order forthwith.
Sd/-
JUDGE RR