Karnataka High Court
George William Devakumar vs K A Venkatachala on 26 August, 2020
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRA RAO
CRIMINAL REVISION PETITION No.961 OF 2015
BETWEEN:
GEORGE WILLIAM DEVAKUMAR
S/O ELISHAPPA
AGED ABOUT 62 YEARS
R/O A13B, NEWTOWN
BHADRAVATHI-577 301 ... PETITIONER
(BY SHRI.R.GOPAL, ADVOCATE - THROUGH VIDEO CONFERNECE)
AND:
K.A.VENKATACHALA
S/O V.ADISHESHAN
AGED ABOUT 40 YEARS
R/O KADADAKATTE VILLAGE
BHADRAVATHI-577 301 ... RESPONDENT
(RESPONDENT IS SERVED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER DATED 27.05.2015 PASSED BY THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA,
SITTING AT BHADRAVATHI, IN CRL.A.NO.21/2013 AND ALSO SET
ASIDE THE JUDGMENT AND ORDER DATED 28.01.2013 PASSED BY
THE I ADDITIONAL CIVIL JUDGE AND JMFC, BHADRAVATHI, IN CC
NO.2358/2005 AND ACQUIT THE PETITIONER.
THIS CRL.R.P COMING ON FOR ADMISSION THIS DAY, THE
COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:-
2
ORDER
This matter is taken up through video conference. Learned Counsel Shri. R. Gopal for petitioner is present through video conference. Respondent served.
2. This revision petition is filed under Section 397 R/W 401 of Cr.P.C against the judgment and order dated 27th May 2015 passed in Crl.A.No.21/2013 by the IV Additional District and Sessions Judge, Shimoga, sitting at Bhadravathi wherein the appeal filed by the petitioner came to be dismissed thereby confirming the judgment and order dated 28th January 2013 in C.C.No.2358/2005 passed by the I Additional Civil Judge and JMFC, Bhadravathi.
3. In order to avoid confusion and overlapping, the parties are addressed in accordance with their status and rankings as held by them before the Trial Court.
4. The substance of the case is that the complainant filed a criminal case in C.C.No.2358/2005, on the file of I Additional Civil Judge & JMFC, Bhadravathi, for the offence punishable under Section 138 of the Negotiable Instruments 3 Act, 1881, stating that the accused borrowed an amount of Rs.30,000/- from the complainant and issued a cheque confirming the liability and agreeing to repay the amount. However, the cheque, on presentation to the bank, came to be dishonoured on account of insufficient funds and also variation in the signature of the accused. Complainant issued demand notice on 09.08.2004 which was received by accused on 10.08.2004. Inspite of service of notice, accused failed to pay the amount. Complainant filed a complaint.
5. The trial Judge has taken the cognizance and sworn statement of complainant was recorded and criminal case has been registered against accused and he was summoned. Accused appeared and pleaded not guilty and came to be tried.
6. The learned Trial Judge was accompanied with oral and documentary evidence as follows:
List of witnesses examined on behalf of the complainant P.W.1 K.A.Venkatachala P.W.2 Rajendra Hegde 4 Documents exhibited on behalf of the complainant Ex.P1 One cheque no.707555 Ex.P2 Bank endorsement Ex.P3 Bank memo Ex.P4 Copy of legal notice Ex.P5 Reply notice Ex.P6 Postal acknowledgment Ex.P7 Postal receipt Ex.P8 C.P.O Receipt List of M.O's marked on behalf of the complainant Nil Witnesses examined on behalf of the accused D.W.1 George William Devakumara D.W.2 K.Madaiah Documents exhibited on behalf of the accused Ex.D1 Ex.D2 Complaint copy Ex.D3 V.I.S.L. Identity Card Ex.D4 Voter I.D.card Ex.D5 Receipt Ex.D6 Salary certificate issued by V.I.S.L.
7. After hearing the parties, trial Judge convicted the accused for the offences punishable under Section 138 of 5 Negotiable Instruments Act and sentenced him to pay fine of Rs.35,000/- in default to undergo SI for six months. Out of Rs.35,000/-, Rs.30,000/- shall be paid to complainant as compensation. Against which, accused preferred an appeal before the appellate Judge in Crl.A.No.2358/2005 which came to be dismissed. Against which, accused preferred this petition.
8. Shri Gopal, learned advocate for petitioner would submit that complaint filed by the complainant is not maintainable for the very reason that the accused never entered into any transaction of borrowing money from him. The subject cheque was never issued by the accused to the complainant. He never borrowed Rs.30,000/- or any other amount.
9. The claim of the petitioner is that the cheque is dated 28.07.2004 and it was presented before the banker and Ex.P2 is the document showing the dishonour of cheque due to insufficient funds and also variation in the signature of the accused. Ex.P3 is the Bank memo dated 29.07.2004. The Trial Court has found compliance of formalities in presenting 6 the criminal case for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
10. It is seen that defence of accused is on twofold. One is that the carpenter in the house of accused stolen the cheque and handed over it to the complainant in order to facilitate filing of the present case and the second line of defence is that the name of the accused is George William Devakumar and not Kumar.
11. It is not necessary that accused has to prove his stand beyond reasonable doubt. However, the kind of defence the accused has resorted to is something improbable. According to the accused, as observed by the Trial Court, the carpenter in the house has stolen the cheque and gave it to complainant but it is not clear whether the accused want to say that he has signed the cheque and kept it in the box or cheque book itself was stolen. The contention of the accused in paragraph No.6 at page 8 of the memorandum of revision petition is as under;
"6. The courts below have failed to consider and appreciate the materials on record probabilising the defence of petitioner as true 7 and believable. It is the case of petitioner that there is no any financial transaction between him and respondent and he never issued cheque to respondent. It is the further case of petitioner that on Channakeshava was working with him as carpenter and that on Venkatachala and Channakeshava are friends and Chennakeshava had worked as carpenter in his house and during such time, he had taken the cheque kept in the house without notice or knowledge of petitioner and that Chennakeshava and respondent and others have mis-used the cheque by forging the signature of petitioner on Ex P1 and filling the blanks and filed the complaint with intention to make wrongful gain. PW1 has clearly admitted that the said Chennakeshava, Kumar and Laxmana are his friends and they are referred to in Ex D5-chit which is admittedly in the handwriting and signature of respondent (as admitted by respondent - PW1 himself). Ex D4 is the complaint in PCR filed against respondent and Chennakeshava for mis-se an committing forgery of signature on the cheque-Ex P1. Chennakeshava and Kumar are not examined by respondent. Further admittedly signature appearing on Ex P1 is not that of petitioner as evident from the above materials on record. Ex D5 - chit admitted by P.W2 to be that of himself shows the said persons know each other and had some transactions. Ex P5 is the reply given by petitioner to the legal notice/Ex P4 of respondent wherein the above defence made out in the case has been stated in detail by petitioner. On the face of the said defence, which is in fact proved from the above materials on record, the courts below ought to have held that the petitioner has made out probable defence and acquitted the petitioner. These aspects of the matter has been completely overlooked by both the courts below."
12. He has not produced any document to show that he has taken action against said Chennakeshava accused 8 either separately or jointly. No document or circumstance is explained in this connection.
13. Similarly, the reply notice issued on behalf of the accused to the complainant is culled out by the learned Trial Judge at paragraph No.23 of the judgment which reads as under;
"23. Now coming to the first defence, accused has specifically stated that, there was no transaction between the complainant and himself and he did not know the complainant either to filing this complaint. But in the reply notice issued to the complainant accused has specifically stated that, "My client reports me that, your client is well known to my client and used to visit to my client's house offen and often without any reasons just to time pass, accordingly, your client well acquainted regarding the placing of cheque book and other documents and things of my client in the house". This version of the accused himself clearly goes against the defence as he was not acquainted with the complainant does not hold good. Hence, the version of accused as he is not having acquaintance is with the complainant cannot be accepted. With regard to transaction is concerned accused himself has produced Ex.D.5, which is alleged to be written by P.W.1 and there is something mentioned in this document about a transaction of Rs. 10,000/-. During the course of evidence PW.1 has specifically admitted that, this document is belongs to him. That is more important here that, how this document came to the custody of this accused. Without any transaction and without an acquaintance with the complainant how this Ex.D.5 came to the custody of accused? There is no explanation by the accused in this regard. Therefore, Ex.D.5 creates doubt in the mind of the court about 9 some transaction between the accused and the complainant and hence, defence of the accused as to no transaction cannot be accepted."
14. The accused has not placed reliable and reasonable materials in support of his defence. Thus, the defence taken by the accused is unbelievable in the circumstances of the case. They are also diagonally opposite. I do not find there is necessity to continue the proceedings as the case is bound to fail at the stage of admission itself.
The petition is accordingly dismissed.
Sd/-
JUDGE YN