Karnataka High Court
Sri H V Raviprasad vs Sri Nanda Kshore on 25 February, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.1221/2010
BETWEEN:
SRI H.V. RAVIPRASAD
S/O M.N. VENKATARAMAIAH
HINDU
NO.1024, 'SAHANA', 25TH MAIN ROAD
BANGALORE-560070.
...PETITIONER
(BY SRI. RAVI SHANKAR S, ADV.,)
AND:
SRI NANDA KISHORE
S/O LATE K. NAGESH RAO
HINDU
NO.1078, 27TH MAIN
9TH BLOCK, JAYANAGAR
BANGALORE-560069.
... RESPONDENT
(BY SRI. NAGENDRA C, ADV.,)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 CR.P.C. PRAYING TO SET
ASIDE THE ORDER DATED 25.08.10 PASSED BY THE P.O.
FTC-I, BENGALORE IN CRL.A.145/09 CONFIRMING THE
ORDER DATED 12.1.09 PASSED BY THE XXII ACMM.,
BANGALORE IN C.C.NO.16185/07 AND ACQUIT THE
PETITIONER BY ALLOWING THE ABOVE CRL.R.P. AND
DISMISS THE COMPLAINT.
THIS CRL.RP HAVING BEEN HEARD AND RESERVED
FOR PRONOUNCEMENT OF ORDERS, THIS DAY,
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PRADEEP D. WAINGANKAR J., PRONOUNCED THE
FOLLOWING:
ORDER
This Criminal Revision Petition under Section 397 r/w Section 401 of Cr.P.C., is to set aside the judgment of conviction and sentence dated 12.01.2009 in C.C.No.16185/2007 on the file of the XXII Additional Chief Metropolitan Magistrate and Small Cause Judge, Bangalore and to set aside the judgment dated 25.08.2010 in Criminal Appeal No.145/2009 on the file of the Fast Track Court-I, Bangalore City, whereby the appeal filed by the revision petitioner/accused came to be dismissed while confirming the judgment of conviction and sentence passed by the Magistrate for the offence under Section 138 of N.I. Act.
2. The facts which gave rise to this revision petition are briefly stated as under:
The revision petitioner was the accused and the respondent was the complainant before the Magistrate. The complainant and the accused were known to each 3 other from a considerable period of time. The accused borrowed a hand loan of Rs.4,00,000/- from the complainant on 10.09.2006 for his urgent needs agreeing to repay the same within a period of six months. After the lapse of period of six months, the complainant demanded the repayment of the loan. Instead of repaying the loan, the accused issued a cheque dated 09.03.2007 for Rs.4,00,000/- drawn on Vijaya Bank, South End Road, Bangalore. On presentation of the cheque by the complainant for collection through his banker Canara Bank, Jayanagar Branch, Bangalore, it was returned back with an endorsement "funds insufficient" on 12.03.2007. The complainant got issued a legal notice on 23.03.2007 both by RPAD and Under Certificate of Posting informing the factum of the dishonour of the cheque and calling upon the accused to pay the cheque amount. The notice sent to the respondent by RPAD was not returned whereas the notice sent by Under Certificate of Posting said to have been served. Inspite 4 of service of notice, the accused neither paid the amount nor replied the notice. So a complaint came to be filed for the offence punishable under Section 138 of N.I. Act against the accused.
The accused appeared before the Court and pleaded not guilty to the charge. The complainant in order to establish his case examined himself as PW-1 and marked 8 documents as Exs.P1 to P8. The petitioner/accused, on the other hand, got himself examined as DW-1. Learned Magistrate upon hearing the learned counsel appearing for the complainant and the accused and upon perusal of the evidence placed on record, by his order dated 12.01.2009 convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced him to pay a fine of Rs.4,10,000/- and in default, to undergo Simple Imprisonment for a period of one year.
The judgment of conviction and sentence was challenged by the accused in Criminal Appeal No. 5 145/2009 on the file of the Fast Track Court-I, Bangalore City. The Presiding Officer of the Fast Track Court, upon re-appreciation of the evidence and upon hearing the arguments, by his judgment dated 25.08.2010 dismissed the appeal while confirming the judgment of conviction and sentence passed by the Magistrate.
3. Aggrieved by the judgments passed by both the Courts below, this revision petition is preferred by the accused.
4. I have heard both the learned counsel appearing for the accused and the respondent/complainant. Perused the records.
5. The main thrust of the arguments of the learned counsel appearing for the revision petitioner/accused is that the notice as contemplated under proviso to Section 138 of N.I. Act said to have been issued by the complainant by RPAD and by Under Certificate of Posting was not at all served upon the 6 accused and that the accused was not at all aware of the issuance of the notice and in the absence of the notice, the complainant gets no cause of action to file a complaint for the offence under Section 138 of N.I. Act.
6. Learned counsel for the revision petitioner/accused has placed reliance on the following decisions in support of his arguments:
• AIR 2002 SUPREME COURT 3557 (Basant Singh and another v.
Roman Catholic Mission) • (1996) 2 Supreme Court Cases 647 (State of Kerala v. George Joseph) • I (2011) CPJ 4 (SC) (Greater Mohali Area Development Authority and another v. Manju Jain and Others.
• 2004 AIR-Kant. H.C.R. 2987 (K.Rudrappa v. Shivappa) 7
7. Learned counsel appearing for the respondent/complainant, on the other hand, has submitted before me that the notice sent to the accused by RPAD is not returned back. Therefore, a presumption has to be drawn under Section 27 of the General Clause Act that the notice has been duly served upon the accused. He has further submitted that the notice sent to the accused by Under Certificate of Posting is duly served upon the accused. Hence, learned counsel submitted that there is no substance in the submission made by the learned counsel appearing for the petitioner/accused and that both the Courts below upon proper appreciation of the evidence have rightly found the accused guilty and thereby he has been convicted and sentenced.
8. Learned counsel for the respondent complainant has placed reliance on the following decisions in support of his arguments: 8
i) 2006 STPL(LE) 35145 SC (State
of Maharashtra vs Rashid B. Mulani)
ii) 2006 STPL(LE) 36964 SC (D.
Vinod Shivappa vs. Nanda Belliappa)
iii) 2000 (4) Kar. L.J. 145 (Ramanna vs. T.Jayaprakash)
iv) AIR 2009 SUPREME COURT 1168 (M/s. Harman Electronics (P) Ltd. & Anr. v. M/s. National Panasonic India Ltd.)
v) AIR 2009 SUPREME COURT 1233 (V.N. Bharat v. D.D.A. & Anr.)
9. Before going into the ratio laid down in the aforesaid decision cited by the learned counsel appearing for both the parties let me examine whether the notice as required under proviso to section 138 of N.I. Act has been served upon the accused or not. The complainant who has been examined as PW-1 went on record to depose that when the cheque came to be dishonoured, the complainant issued a legal notice 9 dated 23.03.2007, the copy of which is marked as Ex.P5 to the accused. Ex.P6 is the postal receipt for having sent the notice to the accused by RPAD wherein the address of the accused is shown as Ravi Prasad H.V. BSK 2ND Stage, Bangalore-70. That is not the complete address of the accused. But the correct and full address of the accused is H.V. Ravi Prasad, S/o M.N. Venkataramaiah, 'Sahana', No.1024, 25th main road, BSK II Stage, Bangalore-70. If this is the correct and complete address of the accused and if the notice is sent to the accused by RPAD to his address shown in Ex.P6-
postal slip, it is virtually impossible to serve the notice to the accused on his address shown in Ex.P6. In other words, the address shown in Ex.P6 is not a complete address of the accused so as to draw a presumption under Section 27 of the General Clause Act that it has been duly served upon the accused. Moreover, it is not known whether the notice sent to the accused on the aforesaid address shown in Ex.P6 has been really served upon the accused for the reason that the RPAD 10 cover wherein the notice was sent is not returned back to the complainant. If the RPAD cover had been returned to the complainant for the endorsement made in the cover by the postman, one can come to the conclusion whether the presumption can be drawn under Section 27 of the General Clause Act regarding the service of notice. Since RPAD cover is not at all returned, it is rather difficult to draw presumption that the notice is served upon the accused. Coming to Ex.P7-postal acknowledgment for having sent the notice to the accused by Under Certificate of Posting, it cannot be said that such a document cannot be created with the connivance of the postal authorities without actually sending a notice to the addressee by Under Certificate of Posting.
10. In 2006 STPL(LE) 35145 SC (State of Maharashtra vs Rashid B. Mulani), in para 17 it has been held as under:
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"17. A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the Post Office. But when a mere certificate of posting is sought, no record is maintained by the Post Office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing ante- dated seal with the connivance of any employee of the Post Office is a matter of concern. The Department of Posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender's name and addressee's name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communications is disputed or denied as in this case."
In this case also the accused has categorically denied in his evidence for having received the notice 12 said to have been sent to him either by RPAD or by Under Certificate of Posting. Therefore, Ex.P7-postal acknowledgment for having sent the notice to the accused by Under Certificate of Posting is of no assistance to the complainant so as to say that the notice has been served upon the accused.
11. In 2006 STPL(LE) 36964 SC (D. Vinod Shivappa vs. Nanda Belliappa), in para 7, it has been observed as under:
"7. We do not agree with the counsel for the appellant that the complainant has admitted in the complaint that notice had not been served within the meaning of Section 138 of N.I. Act. What has been stated in paragraph 8 of the complaint is the factum of the legal notice having been returned unserved on March 25, 2004 with an endorsement. This was a fact the complainant could not deny. But in paragraph 10 of the complaint the complainant has stated that notice may be deemed to have been served. The reasons for deeming service, are stated in the earlier 13 paragraphs of the complaint. The question which, therefore, arises is whether in these circumstances the appellant could pray for quashing of the proceedings under Section 482 of the Code of Criminal Procedure."
From the reading of the aforesaid observation made by the Supreme Court, it is obvious that in the case before the Supreme Court the legal notice sent to the accused by RPAD returned unserved on 25.03.2004 with an endorsement. But in the case on hand, the notice sent by RPAD is not at all returned. Therefore, the said decision will not come to the help of the complainant in any way. In all other decisions relied upon by the complainant, the notice sent by RPAD is returned back with an endorsement by the postal authorities.
12. In 2000 (4) Kar. L.J. 145 (Ramanna vs. T.Jayaprakash) relied upon by the complainant, in para 6, it is observed as under:
"6. Therefore, the crucial point that was required to be considered by the 14 Magistrate in the instant case was whether the complainant had placed sufficient material on record disclosing the actual date of service of Ex.P2 demand notice on the accused so as to make out whether the cause of action for the former had arisen to present the complaint against the latter. There is no statement made in the complaint that the notice under Ex.P5 postal certificate, said to have been issued by him to the accused was served on the latter on any particular date. Nor was it so stated by him in his sworn statement recorded by the learned Magistrate. All that he has produced is Ex.P5 postal certificate disclosing the postal dispatch of the said notice to the accused on 25.11.1994."
13. In the case on hand also no such material has been produced regarding the service of notice to the accused by Under Certificate of Posting. Except Ex.P7 acknowledgment for having sent the notice by Under Certificate of Posting no other material is forthcoming regarding the service of notice to the accused by Under Certificate of Posting. In all the decisions relied upon by 15 the learned counsel for the complainant-respondent, the notice sent to the accused to his correct address by RPAD was returned back with an endorsement by the postman and it is in that context, it has been held that a presumption has to be drawn under Section 27 of the General Clause Act that the notice has been served upon the accused. But we are confronted with a case where the notice said to have been sent to the accused by RPAD is not at all returned back and to that effect the complainant has also lodged a complaint before postal authorities, nor the complainant examined the postman despite the categorical denial of service of notice by the accused in defence evidence. Under such circumstances, the question of drawing presumption that the notice is served upon the accused does not arise. There is evidence for having served the notice on the accused. When the notice is not served upon the accused, the cause of action does not arise to file a complaint for the offence punishable under Section 138 of N.I. Act. This crucial aspect has been brushed aside 16 and ignored both by the learned Magistrate and learned Sessions Judge. Therefore, the conviction and sentence of the petitioner/accused is not sustainable in law. Accordingly, I pass the following order.
Criminal Revision Petition is allowed. The judgment of conviction and sentence of the petitioner/accused for the offence punishable under Section 138 of N.I. Act dated 12.01.2009 passed by the XXII Additional Chief Metropolitan Magistrate and Small Cause Judge, Bangalore, in C.C.No.16185/2007, confirmed by the learned Sessions Judge, Bangalore in Criminal Appeal No.145/2009 by judgment dated 24.08.2010 is hereby set aside. The petitioner is acquitted of the charge under Section 138 of N.I. Act.
Sd/-
JUDGE PMR