Karnataka High Court
Sri.K. Abdul Basheer vs Sri. J. Ramesh on 24 February, 2014
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 24TH DAY OF FEBRUARY 2014
BEFORE
HON'BLE MR. JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO.817 OF 2011
BETWEEN
SRI K. ABDUL BASHEER
S/O LATE ABDUL KHHUDDUS
AGED MAJOR
R/O NO.21/40, 1ST CROSS
WAHAB MISSION
BTM LAYOUT, I STAGE
GURAPPANAPALYA MAIN ROAD
BANGALORE.
... PETITIONER
(BY SRI: H.N.C KUMARGOWDA & ASSOCIATES, ADVS.)
AND
SRI J. RAMESH
S/O JAVARAYAPPA
AGED MAJOR
R/AT NO.88
SRI RAMA ROAD
THYAGARAJANAGARA
BANGALORE.
... RESPONDENT
(BY SRI: JANARDHANA, ADV. FOR
SRI: PRAVEN HEGDE, ADV.)
------
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THIS CRL.RP IS FILED U/S.397 R/W 401(5) CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 7.7.11 PASSED BY
THE P.O., FAST TRACK COURT-IV, BANGALORE IN
CRL.A.NO.214/11 AND ORDER DATED 5.3.11 PASSED BY THE
XII ADDL. C.M.M., BANGALORE IN C.C.NO.8648/09.
THIS CRL.RP COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition u/s 397 r/w 401(5) of Cr.P.C. is against the order dated 5.3.2011 in C.C.No.8648/2009 on the file of XII Addl. CMM Court, Bangalore City and against the order dated 7.7.2011 in Crl.A.No.214/2011 on the file of Fast Track Court-IV, Bangalore City, whereby the appeal filed by the revision petitioner/accused came to be dismissed and the judgment of conviction and sentence passed against the revision petitioner-accused under section 138 of N.I. Act came to be confirmed.
2. The revision petitioner was the accused before the Magistrate and the respondent was the 3 complainant. Towards discharge of loan amount of Rs.3,50,000/- obtained by the accused from the complainant, the accused issued a cheque for Rs.3,50,000/- in favour of the complainant drawn on ICICI Bank, Jayanagar 9th Block, Bangalore. On presentation of the cheque by the complainant, it came to be dishonoured with an endorsement 'insufficient funds'. The accused was issued with legal notice informing him the factum of dishonour of the cheque and called upon him to pay the cheque amount. The notice was sent both by RPAD and under certificate of posting. Though notice was served upon the accused, there was no reply, nor he came forward to pay the cheque amount, which made the complainant to file a complaint against the accused for the offence under Section 138 of N.I. Act. The accused having denied the accusation, the complainant in order to prove the charge levelled against the accused examined himself 4 as PW-1 and relied upon five documents marked as Ex- P1 to P5. The accused on the other hand got himself examined as DW-1. The learned Magistrate upon hearing the arguments addressed by both the learned counsel appearing for the parties and upon appreciation of the evidence by his order dated 5.3.2011 convicted the accused for the offence punishable under Section 138 of N.I.Act and sentenced him to pay fine of Rs.3,60,000/- and also ordered to pay Rs.3,50,000/- as compensation out of the fine amount. Crl.A.No.214/2011 filed by the accused against the judgment of conviction and sentence came to be dismissed by order dated 7.7.2011.
Aggrieved by the orders passed by both the Courts below, this revision petition is preferred.
3. In order to prove the case made out by the complainant, apart from oral evidence of the 5 complainant, he has placed on record five documents marked as Ex-P1 to P5. Ex-P1 is the cheque for Rs.3,50,000/- issue by the accused in favour of the complainant. Ex-P2 is the bank endorsement for having returned cheque for 'insufficient funds'. Ex-P3 is the office copy of the legal notice issued to the accused informing him the factum of dishonour of the cheque calling upon him to pay the cheque amount. The accused neither paid the cheque amount nor gave reply to the legal notice. Ex-P3(a) is the postal receipt and Ex-P3(b) is the postal acknowledgment. Ex-P4 is the acknowledgment for have sent notice by under certificate of posting. Ex-P5 is the copy of the complaint filed against the accused before the Court. Thus all the mandatory requirements to file a complaint under section 138 of N.I. Act has been duly complied with. 6
4. The only defence of the accused seems to be that the blank cheque duly signed by him was stolen by the complainant and he presented the same for collection. Except interested testimony of the accused, who is examined as DW-1, no supporting evidence is forthcoming to show that the cheque in question was stolen by the complainant. He has neither given complaint nor taken any steps nor informed his banker about the theft of the cheque. In the absence of satisfactory evidence to that effect, it is impossible to accept the defence put forth by the accused. Thus the fact remains that the accused having issued the cheque, failed to pay the cheque amount even after issuance of notice and therefore he has committed an offence punishable under Section 138 of N.I. Act. Rightly for the said reason, he has been convicted by the learned Magistrate by appreciating the evidence in its proper perspective. The learned Sessions Judge on 7 re-appreciation of the evidence has confirmed the judgment of conviction and sentence. I do not find any merit in this revision petition. Hence, criminal revision petition is dismissed.
Sd/-
JUDGE *mn/-