Karnataka High Court
Praveen Kumar vs Abdul Asif on 11 January, 2021
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.1107 OF 2011
BETWEEN:
Praveen Kumar
S/o. Late Chandra Kumar
Aged 51 years
R/a No.3, Jyothi Nivasa
Udayanagar,
Bangalore.
.. Petitioner
(By Sri. A. Keshava Bhat, and
Sri. K. Srikrishna, Advocates)
AND:
Abdul Asif
S/o. Late M. Seedi
Aged about 32 years,
R/a Seeko Mahal
Kaprigudde
Mangalore - 575 001.
.. Respondent
(By Sri. B.S. Sachin, Advocate)
****
This Criminal Revision Petition is filed under Section 397 read
with Section 401 of Cr.P.C. praying to set aside the judgment
Crl.R.P.No.1107/2011
2
dated 02-08-2011 in Crl.A.No.104/2009 passed by the III Addl.
District and Sessions Judge, D.K. Mangalore; and set aside the
judgment dated 18-02-2009 in C.C.No.2367/2008, passed by the
J.M.F.C. (IV Court), Mangalore, D.K. etc.
This Criminal Revision Petition coming on for Hearing,
through Physical Hearing/Video Conferencing Hearing this
day, the Court made the following:
ORDER
The present petitioner as the accused was tried by the Court of the learned J.M.F.C (IV Court) Mangalore, Dakshina Kannada (hereinafter for brevity referred to as the "Trial Court") in C.C.No.2367/2008 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as the "N.I. Act") and was convicted for the said offence by its judgment of conviction and order on sentence dated 18-02-2009.
Aggrieved by the same, the accused preferred a Criminal Appeal in the Court of the learned III Additional District and Sessions Judge, Dakshina Kannada, Mangalore,(hereinafter for brevity referred to as the "Sessions Judge's Court") in Criminal Appeal No.104/2009.
Crl.R.P.No.1107/20113
The appeal was contested by the respondent who was the complainant in the Trial Court. The Sessions Judge's Court in its order dated 02-08-2011 dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 18-02-2009 in C.C.No.2367/2008.
Aggrieved by the said order, the accused has preferred this revision petition.
2. The summary of the case of the complainant in the Trial Court is that, through one Sri. Surendra, the accused came in acquaintance with the complainant in the year 2004. At the specific demand made by the accused for hand loan of a sum of `1,00,000/- the complainant gave him the said loan of `1,00,000/- on 03-11-2004 through a cheque bearing No.154419 dated 03-11-2004 drawn on Corporation Bank Limited, Pandeshwar Branch, Mangalore. The accused had agreed to repay the said loan amount without any interest there upon within twelve months. Thereafter, towards the dischargal of the said liability, the accused issued a cheque bearing No.351399 dated 01-09-2005 for a sum of `1,00,000/- drawn on Vijaya Bank, Koramangala Branch, Bangalore Crl.R.P.No.1107/2011 4 in favour of the complainant. When the said cheque was presented for its realisation, it came to be dis-honoured with the Banker's shara of 'funds insufficient' and thereafter demanding the cheque amount, the complainant also got issued a legal notices to the accused. However, the accused neither received the legal notice nor met the demand made in the legal notice. This constrained the complainant to institute a case against him for the offence punishable under Section 138 of the N.I. Act, in the Trial Court.
3. The accused appeared through his counsel and contested the matter.
4. After recording the evidence and hearing both side, the Trial Court by its impugned judgment of conviction and order on sentence dated 18-02-2009 convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him to pay a fine of `1,47,000/-, in default, to undergo Simple Imprisonment for a period of eight months. Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.104/2009 in the Sessions Judge's Court. It also by its judgment dated 02-08-2011 dismissed the appeal, confirming the judgment Crl.R.P.No.1107/2011 5 of conviction and order on sentence passed by the Trial Court. It is against those two judgments, the accused has preferred this revision petition.
5. The respondent herein is being represented by his counsel.
6. Learned counsel for the revision petitioner is appearing physically in the Court. Learned counsel for the respondent is appearing through video conference.
7. The Trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court.
8. Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge's Court's records.
9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
10. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is: Crl.R.P.No.1107/2011 6
Whether the judgments under revision are perverse, illegal and erroneous warranting interference at the hands of this Court?
11. Learned counsel for the revision petitioner/accused in his brief argument submitted that no statutory notice subsequent to the dishonor of the cheque was issued to the accused. However, both the Trial Court as well as the Sessions Judge's Court have erroneously held that there was service of notice upon the accused which has led them to pass an erroneous judgment of conviction against the accused. He further submitted that even though the accused had specifically denied that the signature in the cheque at Ex.P-1 is not his signature, still, the Trial Court did not get the said signature compared by a handwriting expert.
12. Learned counsel for the respondent/complainant in his argument submitted that the defence of the accused was that the alleged loan was given by the complainant in favour of his (complainant's) son-in-law by name Arhath and he en-cashed the cheque in his account, since Arhat did not have a bank account as such, he is not the primary borrower of the alleged loan amount. However, the accused did not examine the said son-in-law - Sri. Arhath, for the reasons best known to Crl.R.P.No.1107/2011 7 him, as such, the entire defence of the accused is without any basis. He further submits that the accused has not placed any material to show that he was not the resident of the addresses shown in the legal notice sent by the complainant. As such, both the Courts have rightly held that the complainant has proved the alleged guilt against the accused.
13. It is not in dispute that the cheque at Ex.P-1 belongs to the present petitioner (accused) and said cheque when presented by the complainant for its payment came to be dis-honoured as per the Banker's endorsement at Ex.P-2 showing there was insufficient fund in his account. The accused nowhere stated that the said cheque does not pertain to him. However, his contention with respect to the said cheque is that the signature of the drawer in the said instrument is not his. In that regard, except making a suggestion to PW-1 in his cross- examination, the accused has not placed any material to substantiate that the said signature in Ex.P-1 cheque does not belong to him.
It cannot be ignored of the fact that the cheque at Ex.P-1 has not been returned by the banker with the reason of difference in the alleged signature of the drawer. Had Crl.R.P.No.1107/2011 8 really the said cheque been dis-honoured among other reasons, if any, including the non-tallying of the signature of the drawer, then, the banker would have returned the said cheque interalia with the endorsement that the signature of the drawer differs.
14. Secondly, if it were to be the contention or the defence of the accused that the signature in Ex.P-1 does not pertain to him, it was for him to establish the same to the satisfaction of the Trial Court. In that regard, he had various means to prove his contention including examining the bank Manager or summoning his specimen signature from the banker or at least requesting the Court to refer his signature to compare the same with the admitted specimen signature to any hand writing expert. No attempt was made by the accused on any one of these lines. A mere suggestion to PW-1 in his cross-examination that the signature in the returned cheque is not that of the drawer, would not make one to believe that the signature of the drawer on the cheque at Ex.P-1 is not that of the accused.
15. Thirdly, nowhere the accused has given any reason as to how come his cheque came into the hands of the complainant. Crl.R.P.No.1107/2011 9 No explanation in that regard has been given by the accused. Though he contends that the loan amount of `1,00,000/- in the form of cheque was given by the complainant to his (accused') son- in-law by name Arhath, but he en-cashed it since he did not have bank account at that time, but he does not give any reason as to, if that were to be the case, then, why should his (accused) cheque should lie in the hands of the complainant. Admittedly, no required action either to stop payment of the said cheque or recovery of the said cheque from the possession of the complainant was initiated or taken by the accused, at any point of time. This also creates a doubt in the defence of the accused that he had not issued any cheque to the complainant and that the signature in Ex.P-1 does not pertain to him.
16. In addition to the above, it also cannot be ignored of the fact that when the accused has taken a specific defence that the alleged loan was given to his son-in-law, nothing had prevented him to examine the said son-in-law. Though the learned counsel for the petitioner submitted that, he made an attempt to bring him (son-in-law) to the witness-box but he could not do the same, Crl.R.P.No.1107/2011 10 would not be a reason for holding that the defence of the accused has stood proved, at least to the extent of rebutting the presumption formed in favour of the complainant.
On the other hand, in the cross-examination of the complainant (PW-1) from the side of the accused, a suggestion was made that the loan amount was required to be repaid within a period of one year. The said witness has admitted the same as true. By making the said suggestion, the accused has admitted the availment of loan, otherwise, he would not have made such a suggestion in the form of admission to none else than the complainant in his cross-examination. This further makes it clear that the defence of the accused that the loan was given to his son- in-law and that he alone received that amount, is without any basis.
Furthermore, the accused in his cross-examination has also stated that he has got no documents to show that the said loan amount received in the form of cheque has been delivered or transferred to his son-in-law i.e. Arhath. Therefore, the second defence of the accused that he was not the principal borrower of the loan amount but it was his son-in-law, is also not acceptable. Crl.R.P.No.1107/2011 11
17. Lastly, the other contention of the petitioner/accused is that, the notice said to have been issued subsequent to the dishonor of the cheque has not been issued to him. In that regard, he has stated that he has never been a resident of one of the addresses shown in the notice as "No.67, Vivekananda Road, Udayanagar, Bangalore-16". He says that the postal shara also goes to show that the same has been returned as 'left'. That being the case, there is no valid service of notice upon the accused.
18. A perusal of the Exhibits and the material placed before this Court goes to show that, the alleged legal notice which is at Ex.P-3 was sent to the two addresses of the accused under Registered Post Acknowledgement Due (RPAD). Apart from the address bearing No.67, Vivekananda Road, Udayanagar, Bangalore-16, it was also sent to the address at "No.3, Jyothi Nivas, Udaya Nagar, Bangalore-560 016". The returned postal cover sent to that other address and which is said to be carrying the legal notice in it which is at Ex.P-5 goes to show that the post man has attempted the service of notice for about five days by physically tendering the said notice to the accused and has shown that the accused had remained absent. Crl.R.P.No.1107/2011 12 It is only on the next day, he has returned the postal article to the sender with the shara 'left' which means, for the first five days, there is no endorsement that the addressee has left the premises. On the other hand, the endorsement shows that attempts were made to deliver the notice to him but the accused has not received it. However, on the sixth day only, the endorsement stating that the addressee has left has been written by the postman. Therefore, it cannot be believed that the accused was not at all residing in the said address and that he had already left when the notice was first attempted to be served upon him on the first day.
To support the above observation, it also cannot be ignored of the fact that, the complaint under Section 200 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as "Cr.P.C."), in the Trial Court was filed showing the address of the accused as the resident of "No.3, Jyothi Nivas, Udaya Nagar, Bangalore-560 016". The accused has received summons and appeared in the Court and contested the matter. Similarly in the present revision petition also, the accused, as a petitioner, has shown the very same address i.e. "No.3, Jyothi Nivas, udaya Nagar, Crl.R.P.No.1107/2011 13 Bangalore" as his address. Therefore, the contention of the petitioner that, no notice was issued to him or attempted to be served upon him, is not acceptable.
19. Barring the above, the petitioner has forwarded no other ground to consider. On the other hand, both the Trial Court as well as the Sessions Judge's Court, after appreciating the evidence led by both side and analysing the material placed before it since have rightly come to the conclusion that the complainant has proved the alleged guilt against the accused, I do not find any perversity, illegality or irregularity in it, warranting any interference at the hands of this Court.
20. However, admittedly, the cheque amount is `1,00,000/- and the total amount of fine imposed by the Trial Court is `1,47,000/-. It is the sentencing policy that sentence must be always proportionate to the gravity of the proven guilt.
In the facts and circumstances of the case, I am view that the sentence of fine imposed at `1,47,000/- is on the higher side, compared to the gravity of the offence proved. It is only to modify Crl.R.P.No.1107/2011 14 the said aspect of sentence, interference at the hands of this Court is required.
Accordingly, I proceed to pass the following:-
ORDER [i] The Criminal Revision Petition is allowed in part; [ii] Though the judgment of conviction passed by the Court of J.M.F.C. (IV Court), Mangalore, Dakshina Kannada, convicting the present petitioner for the offence under Section 138 of the Negotiable Instruments Act, 1881, which is further confirmed by the Court of the III Additional District and Sessions Judge, Dakshina Kannada, Mangalore in Criminal Appeal No.104/2009 in its judgment dated 02-08-2011, is not modified, however, the sentence of fine imposed by the Trial Court which is a fine of `1,47,000/- and in default of payment of fine, to undergo simple imprisonment for eight months, is modified. The fine amount is reduced to `1,22,000/- and the default sentence is reduced to three months' Simple Imprisonment.
[iii] The apportionment of the fine amount, wherein a sum of `2,000/- is ordered to the State and remaining amount as payable Crl.R.P.No.1107/2011 15 to the complainant under Section 357 of the Cr.P.C. remain unaltered.
Registry to transmit a copy of this order to both the Trial Court and also the Sessions Judge's Court along with their respective records forthwith.
Sd/-
JUDGE BMV*