Karnataka High Court
H V Balaji S/O.Late H Vishwanath Shetty vs R P Junjunwala on 31 July, 2012
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 31st DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL REVISION PETITION NO.502/2010
BETWEEN:
H.V. Balaji,
S/o. late H.Vishwanath Shetty,
Aged about 39 years,
R/at M/s. Padmini Silk Agadi,
No.8, Ramesh Rasham Market,
Apaji Rao Lane City,
Street Cross, Bangalore.
As also R/at Shanti Park Apartment Building,
No.5, Flat No.303,
44-4, District Fund Road,
9th Block, Jayanagar,
Bangalore.
... PETITIONER
(By Sri Charan Kumar K.V. for Sri K.A. Ariga, Adv.)
AND:
R.P. Junjunwala,
Building No.10,
Plot No.201-44, Shanti Park,
District Fund Road,
Jayanagar 9th Block,
Bangalore.
... RESPONDENT
(By Sri M.M. Ashoka, Adv.)
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This Crl.R.P. is filed under Section 397 r/w 401
Cr.P.C. praying to set aside the order of
conviction/sentence dated 16.9.2008 passed by the XVI
ACMM., Bangalore in C.C.No.2405/2006 and also to set
aside the order dated 24.3.2010 passed by the P.O., FTC-
II, Bangalore City in Crl.A.No.964/2008.
This Crl.R.P. coming on for hearing this day, the
Court made the following:
ORDER
Respondent filed a complaint under S.200 Cr.P.C. against petitioner alleging commission of an offence under Ss.138 and 142 of the Negotiable Instrument Act ("the Act" for short) in PCR No.27638/2005. His sworn statement was recorded and case was ordered to be registered. In pursuance thereto, complaint was registered as C.C.No.2405/2006 in the Court of the XVI ACMM, Bangalore City. In response to the summons, accused having been appeared, was enlarged on bail. He pleaded not guilty. Case was posted for trial. Complainant deposed as PW.1 and marked Exs.P1 to P11. Statement of accused under S.313 Cr.P.C. was recorded and it is a case of denial.
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2. On 16.9.2008, a joint memo was filed, wherein, accused undertook to pay the cheque amount in two instalments i.e., `9,00,000/- before 15.12.2008 and the balance amount in six months. Learned Magistrate, upon appreciation of the record of the case, found the accused guilty. He convicted accused for an offence under S.138 of the Act and sentenced him to pay `9,00,000/- within a period of 6 months and in case of default, to undergo simple imprisonment for 6 months. The fine amount was directed to be paid as compensation to the complainant.
3. Accused preferred Crl.A.No.964/2008 in the Court of the City Civil and Sessions Judge at Bangalore. Appeal was dismissed on 24.3.2010. This revision petition is directed against the said judgments.
4. Learned counsel appearing for the petitioner contended that the learned Magistrate is not justified in finding the petitioner guilty and convicting him for the offence under S.138 r/w 142 of the Act and in sentencing him to pay fine of `9,00,000/-.
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5. Sri M.M.Ashoka, learned counsel appearing for the respondent, on the other hand submitted that, the ingredients of Ss.138 and 142 of the Act have been made out. Even otherwise, petitioner filed a memo before the Trial Court and sought time to pay the cheque amount and in the circumstances, learned Magistrate is justified in holding the accused guilty and in convicting the accused for the offence under S.138 of the Act. Learned counsel submitted that the appeal being devoid of merit, has rightly been dismissed by the learned Sessions Judge.
6. Case of the complainant before the learned Magistrate is based on Ex.P2/cheque. There is also on demand promissory note and consideration receipt which have been marked as Exs.P10 and P11. Ex.P2 was returned by the petitioner's bank on 1.9.2005 vide Ex.P3 with an endorsement "account closed". A demand notice vide Ex.P5 was sent, both by RPAD and Certificate of Posting on 5.9.2005. The postal receipts are at Exs.P6 to P8. Notice was sent to two addresses. One sent to Shanti 5 Park Apartment address has been served and acknowledgment is at Ex.P9. The notice sent through RPAD to the address at No.8, Ramesh Resham Market, Bangalore-2 was returned. Amount demanded vide Ex.P5 having not been paid, complaint was filed on 9.1.2006. Complainant has deposed as PW.1 and there is no cross- examination. Petitioner/accused does not dispute the issuance of the cheque/Ex.P2 and its return as per bank memo/Ex.P3. There is a demand made as per notice dated 5.9.2005/Ex.P5. Under S.139 of the Act, the Court has to presume, unless the contrary was proved, the holder of the cheque received the cheque for discharge of debt or liability. Accused did not rebut the presumption. That apart, the accused as well as his counsel have filed a memo on 16.9.2008 undertaking to pay the cheque amount in two instalments. Even though the time sought was granted, petitioner has not remitted the fine amount. Thus, no case exists for interference in the revision jurisdiction.
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7. Pursuant to the interim orders passed in Crl.A.No.964/2008 and in this petition, petitioner has deposited `3,30,000/- in the Trial Court.
8. Since no ground is made out to interfere with the concurrent findings recorded by the Courts below, revision petition is dismissed. The fine amount in deposit be released in favour of the complainant towards compensation. Petitioner is granted a month's time to deposit the balance fine amount of `5,70,000/-. In case balance fine amount is not deposited, petitioner is directed to surrender before the learned Magistrate to serve the custodial sentence. The bail bond and surety bond shall stand cancelled after the expiry of 30 days period commencing from today.
Sd/-
JUDGE Ksj/-