Karnataka High Court
Sri M R Raghukumar S/O Late ... vs Smt K B Manjula W/O Sri Manjunath on 22 October, 2009
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH coum or KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY or OCTOBER, 2009
BEFORE
THE HONBLE MRJUSTICE JAWAD RAHIM
CRL.R.P.NO.2161/2006 V.
BETWEEN:
Sri IV{.R.Raghukumar, major,
S/0 late Ramachandrappa,
R/ at 6"' Cross, Jayanagar,
Kolar.
Also at Arrack Head Office,
Lecturer Thimmaiah Building, _
Vidyanagar, Hanuman Garage Roa'd,=
Sira, Tumkur District. * 2. V
And Presently residing at 'V «
7th Cross, 31" Mainfioad, j
Srinagar, Bangalore~f36G Q50; " ....pET1TioN1':R
' ll" Adv.)
AND: 1
Smt.K.B~.Maniii1a..:Vl\/Iajor,.''- .
.~,W/0 Sr-i.Mai1hiunath;V _ _____ H .
R/at 'Kam3a"1ANi1zas, Sarijaynagar,
Vfijustiee Bheemaiah Layout,
Diesel Si:ed--.VRoad_,V }':.R.Puram.
Banga§ore--E36_0._ O36. ... RESPONDENT
° {By Sri.l\/iuniyappa D.Naveen, Adv.)
;fl'iiS Crl.R.P. is filed U/8.397 of Cr.P.C. praying to set
gjaside/quash the conviction and sentence in C.C.No.5363/O3
dated 18.4.2005 on the file of the XII ACMi\/1., Bangalore, and
the same confirmed in Crl.A.No.628/05 dated 5.9.2006 on the
to file of the XXXVI Addl.S.J., Bangalore.
This Crl.R.P. coming on for admission this day, the Court
made the following:
R?"
U?'
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ORDER
The convicted accused is in revision against the judgment in Criminal Appeai M628/2005 dated 5.9.2006 on vtiielllfile of the Sessions Judge, Bangalore, confirming the_;vjutdgIifi_ei5it__v"i~n c.c.No.53e3/2003 dated 18.4.2005 on the 7Ajddttidn<d1.V"'~'.,_ C.iVE.M., Bangalore, convicting him for thefléoffenceépundeit.Sect_ion 138 of Negotiable Instruments Act.
2. This petition is pendingV_adiniss.i_Von fhrorrytheiiyear 2006 and has come up for adrnissi.on.pag,af.nu-after notice to the respondent. "
3. Heard..rega{rdj.;1g. gtd_r1riissi(._2.11[&* is admitted and as it is pendingfor more than three years, by consent it isdtaken up for final disposal. contextuvaipfacts referred to by the learned counsei 'V"_t:O'FVI}€3t1hfi'O1',l:VéYv are that, the respondent initiated prosecution against,'theapetiiioner for an offence punishabie under Section .138 th'e_Negvotiable Instruments Act on the premise that, he it bo_rroiiIed R.s.3,00,000/-- to run a Iiquor business, but failed .'_1t_o '"pva'y"the said amount as promised. On demand made by the
--U'res'pondent for repayment, the petitioner gave a cheque on ' ".I8.12.20O2. The said cheque on presentation was dishonoured {am '; ,,/31..-/"
K'/./k'/'K '\w/1, ,3- by the banker for insufficiency of funds. Necessitating issuance of statutory notice which is also not complied.
5. The learned Tnai Judge took cognizance and secured the presence of the accused who put up a defence?-..firstIy, denying the liability and secondly questioning notice upon him. He aiso questioned the ."tei1abiigity: the".
prosecution on the ground that, the '..comAp1ainanti.wa.s' "s:tra1=;:ger and as the notice was not sen:ed..__upona_him, c:,)gnfizance_V§couidllI not be taken.
6. However, he trieaiaiiduring which the complainant tendered vandllplaced reliance of seven d'o_cu,ments.'which-V_:ncon1prised Cheque EXP}, Bank Endorsementg_lEX.vP2', spy lfitthe Legal Notice Ex.P3, Certificate _ of Pos§ingeA.EX.Pii,-A_l_Postal Acknowiedgement EX.P5, Complaint i'ostai Receipt Ex.P7. The accused also tendered evidence asl"£)W].r'V;vbut no document is produced. '.""F)~. "fhe."'learned Trial Judge held the evidence of the it lconiplainant and was against the defence. Thus it was rejected heijwas found guilty of the offence under Section 138 of the
--«l..:NegotiabIe instruments Act against which he was in Criminal C it "Appeai No.628/2005 reiterating plea of innocence, which was -4- rejected by the Appellate Court. Against both the judgments, he is in revision.
8. The learned counsel would vehemently contendedthat, the complainant/respondent was guilty of the lodged a complaint making allegation that amount which to his knowledge was false} ln he submits that, the complainant is strangera*nd no d;ealin:g* u with him. He referred to the conlttenalts of notice in which the complainant has stated .tha_t.' she' Rs.3,0lCA),l0Av0O/-- to the accused for the purpose of submits that, the statement iiillevidence is at In evidence PWl stated that, theA.ac_cus'ed wasa partner of liquor business and in relation to said amount was given. Secondly submits thatfiegarding Athelissuance of cheque, the complainant "has rlot:'fu_rnis.hed thedatve on which the cheque was given or the lddatelon money of Rs.8,00,000/-- was given. Therefore, thelcornplainti'istbereft of material particulars. Complainant had 'failed to 'summon witnesses who according to her have the transaction. He further submits that, the accused ____"had; taken specific plea that, no notice was served upon him; lbthat he was not residing at the address, at which the notice Was sent. He submits that, the Trial Court ignoring the valid defence has merely acted on the self serving statement of the ax -5- complainant. He therefore seeks to annul the evidence on record and seeks acquittal.
9. Per contra. the learned counsel for complainant has supported the impugned judgme'n_ts.. he'll
10. Keeping in mind what is u.1_fged-,- flglhawre the records in supplementation there-to. It lisvto be ; accused had come up with the defencegifirstlgfgthat. there was no privity of the the complainant but contends thatgthe chegui;.inf.'duest;io.n'Awas--l"issued by him to one Nagaraj and on the cheque to the complainant;:_'_fl§11.ird1y that, he was not residing at the address Vltoflwhichl"thevanotice was sent. Let us therefore examine whethier the has stood to his defence and led proof 'support' thereofnas is required. in View of the fact that in taken up on himself the burden of showing that the che1que"wasx.fgviifen to Nagaraj.
ll. 7€he accused for unexplained reasons did not summon '~ to whom the cheque is said to have been given. But the ___""'."explanation is that, Nagaraj was not alive when the complaint ulfiwas filed. The second aspect is about the accused not residing at the address to which notice was sent. In this regard it is -5- material to note that the complainant has sen.t with notice to the accused at the following address.
M.R.Raghu Kumar, Manager, Arrack office, [Head Office] Lecturer, Thimmaiah Building, Vidyanagar, Hanuman Garage ~ Road, Sira Town, Sira, I Tumkur Bistrict.
12. The same addresstti-araaV_M furnis_hedV1iI_1 pnvatert complaint, but the accused didquestion'the._cor'}ectness of the particulars furnished intthe 'alone such lapses when accused wa4s'in_ appeal' Apoeiiate Court against the conviction; theiaceused' has --furjnist1ed on his own address which readsas ' M.I§;Raghu to. iate Ramachandrappa, Major'; a St" Cross, Llayanagar, Kolar, " also R/Aa__VArrack Head Office, Lecturer Thimrnaiah ~___B'ui_1r.;1ing, Vidyanagar, Hanuman Garage Road, ' V. 3 Sira 1fn.Turnkur district;
._ R/ 7"' cross, 3"' Main, Sri Nagar, A V Banga1ore¥50.
Again it is seen that, even in this revision accused has his address which is as follows:
M.R.Raghu Kumar, S/ o late Ramachandrappa, Major, R/ a 8"' Cross, Jayanagar, Kolar, And also R/ a Arrack Head Office, Lecturer Thimmaiah Building, Vidyanagar, Hanurnan Garage Road, Sira in Tumkur District;
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16. The complainant on his part tendered evidence which established the above ingredients. Of course the said proof is subject to rebuttable by the accused for which purposehlhas been full opportunity to led evidence, particularlyfivithirehgarlhh_'"to'p ' non-service of notice. The coniplainantehaés thfill.
acknowledgment purporting to be uiiderdlthe 'iisag'ri.;§u1,_fefoff'the accused. The accused has the"sigii.att1re;':._;but. that is!' not sufficient, as the Court had_..folund'i..the .piea._'to_be just an attempt to avoid the liabi1i'tyi;llg.. C'
17. The evidence h:as"bee:n the Trial Court and the Appellate iiasalso :e--eA:amined the evidence. l8lg_'I'l1e' is the final Court on fact and it has found reason interfere with the findings recorded by the "Court. V"
then I have examined the evidence for adscertaining.jw1ie'th'er the defence has been considered, keeping V C' in mind the evidence on record, I am satisfied, there is no error ""~..ei'ther in 'assessment of evidence or on any other aspect. Thus, ._jlu~dgz11-ants of the Trial Court and the Appellate Court are not
-amenable to interference.
{*2 -9- In the result, I do not find any merit and accordingly this petition is rejected.