Karnataka High Court
Shankaranarayana Shetty vs M Chandru on 16 June, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REVISION PETITION NO.1003/2014
BETWEEN:
SHANKARANARAYANA SHETTY
AGED ABOUT 59 YEARS
S/O K.T.RANGASWAMY SHETTY,
NO.28001/2, HALLADAKERI,
MYSURU-570 001
...PETITIONER
(BY SRI G.B. NANDISH GOWDA- ADV.)
AND:
M CHANDRU
AGED ABOUT 37 YEARS
S/O SRI B.H. MAHALLINGAIAH
NO.228, BANNUR MAINROAD,
YERAGANAHALLI
MYSURU 570 001
... RESPONDENT
(BY SRI. MANMOHAN P.N., ADV.)
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THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CR.P.C., PRAYING
TO SET ASIDE THE JUDGMENT, SENTENCE AND
CONVICTION AND THE ORDER DATED 10.9.2014
PASSED IN CRL.A.NO.40/2014 ON THE FILE OF THE
PRL. DISTRICT AND SESSIONS JUDGE, MYSURU AND
THE JUDGMENT AND ORDER DATED 28.12.2013
PASSED IN C.C.NO.729/2012 ON THE FILE OF THE I
ADDL. C.J. AND JMFC., MYSURU AND DISMISS THE
CASE OF THE COMPLAINANT.
THIS CRIMINAL REVISION PETITION IS COMING
ON FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for both parties.
2. This revision petition is filed under Section 397 of Cr.P.C. R/w Section 401 of Cr.P.C. questioning the correctness and legality of the judgment and order dated 10.9.2014 passed in Crl.A.No.40/2014 by the Prl. District & Sessions Judge, Mysuru, confirming the Judgment and Order dated 28.12.2013 passed in C.C.No.729/2012 by the I Addl. Civil Judge & JMFC., Mysuru.
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3. The Courts below have concurrently held the petitioner guilty of the offence punishable under Section 138 of the N.I.Act. The petitioner has been imposed with a fine of Rs.6,60,000/- and in default of payment of fine to undergo simple imprisonment for a period of six months.
4. The proceedings were initiated by the respondent/complainant alleging that the accused borrowed a sum of Rs.5,00,000/- from the complainant to meet his financial commitments and towards repayment of the same, the accused issued a cheque bearing No.049195 dated 18.06.2009 and another cheque bearing No.043848 dated 07/12/2011. The said cheques having been dihonoured for want of funds, the complainant issued necessary statutory notice to the accused/petitioner. The accused having failed to comply with the demand, the complainant initiated action under Section 138 of the N.I. Act.
5. Before the Trial Court, the complainant examined himself as PW1 and produced in evidence 8 documents 4 viz., Ex.P1-dishonoured cheque, Ex.P.2-endorsment, Ex.P.-3 Office copy of the legal notice, Ex.P.4 and 5-two returned notices, Ex.P.4(a) and 5(a)-two returned postal covers, Ex.P.6-Statement of accounts, Ex.P.7-On demand Promissory Note and Ex.P.9-Consideration Receipt. As against the said evidence, the petitioner/accused entered into the witness box and examined himself on oath as DW1 and relied on 4 documents namely, Ex.D.1-Certified copy of the plaint O.S.No.411/2010, Ex.D.2- Certified copy of Memo in PCR No.9/2003, Ex.D.3-Certified copy of F.I.R. and Ex.D.4-Certified copy of Complaint.
6. On appreciating the oral and doucmentarty evidence, the learned Magistrate has recorded a finding that the petitioner issued the aforesaid cheques in discharge of a legal recoverable debt and having satisfied about the compliance of the statutory requirements has held the petitioner/accused guilty of the offence under Section 138 of the N.I.Act.
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7. Feeling aggrieved, the petitioner approached the Appellate Court. Even the Appellate Court on re- appreciation of the evidence, concurred with the findings of the learned Magistrate. The petitioner has now approached this court interalia contending that the findings recorded by both the courts below are not based on evidence and suffer from error of law and fact calling for interference by this court in exercise of the jurisdiction under Section 397 of Cr.P.C.
8. Before commencing the arguments, the learned Counsel for the petitioner has presented an application under Section 391 of Cr.P.C. seeking to produce four additional documents by way of additional evidence. The said application in my opinion is liable to be rejected out- rightly for the reason that the petitioner cannot seek to introduce additional evidence in a revisional proceeding under Section 397 of Cr.P.C. Even otherwise, it is not the case of the petitioner that the proposed documents were not in existence at the time of adducing evidence before 6 the trial court or that the said documents are necessary for fair decision in the matter. ON the other hand, on going through the impugned judgment and the records of the lower court, I find that the petitioner has taken an inconsistent stand all through out before the courts below. Therefore, I do not find any reason to permit the petitioner to produce additional documents at this stage. Hence, the said application is rejected.
10. Coming to the grounds urged in the memorandum of revision petition, learned counsel for the petitioner has taken up 2 fold contentions; firstly, it is contended that the statutory notice as required under Section 138 of the N.I. Act is not issued to the petitioner and secondly the complainant has failed to substantiate that the cheque in question was issued in discharge of the legal recoverable debt. In other words, it is the submission of the learned counsel for the petitioner that the petitioner did not borrow any amount from the complainant, though, a sum of Rs.5,00,000/- was received by him from the 7 sister of the complainant for the purpose of conversion of a piece of agricultural land.
11. Insofar as the first contention urged by the petitioner is concerned , it is relevant to note that the notice as required under the provisions of 138 of N.I. Act was issued to the petitioner as evidenced in Ex.P.4 and P.5. No doubt, it is true that the complainant/respondent has not produced the acknowledgement for having served the said notices on the petitioner yet, in the course of the trial, the complainant has unequivocally stated on oath that the notices were issued to the petitioner through Registered Post Acknowledgment Due and through courier service. This assertion made on oath by PW1 has not been challenged in the cross-examination. Even during his examination before the court, the petitioner has nowhere contended that legal notice has not been received by him.
12. The tenor of the deposition of DW1 and the nature of the defence set up by the trial court clearly indicates that notice sent by courier was received by him 8 and he was very much aware of the demand made in the legal notice. Apparently, for this reason a specific defence appears to have not been set up before the lower court disputing the receipt of legal notice. Therefore, the petitioner cannot be permitted to take up this defence at this stage. Hence, the said contention is rejected.
13. Coming to the other contention urged by the petitioner, suffice, it to note that all these contentions are considered by both the courts below. In this regard, the learned Sessions Judge in Crl.A.40/2014 at para-13 of the impugned judgment has observed as under:
13. In view of such defence, it is for the accused to prove his case that his signatures were taken on cheque-Ex.P1, Pronote - Ex.P7 and Consideration Receipt - Ex.P8 and they were later manipulated. First of all, the defence of the accused is mutually inconsistent. So far as the defence of the accused that he has received Rs.5,00,000/- from the complainant 9 towards the conversion of the land use of the land sold to the sister of the complainant, the certified copy of the Sale Deed - Ex.P9 shows that the accused and his wife have sold that land on 25.05.2009, whereas, he has received the amount of Rs.5,00,000/- on 18.06.2009. In Ex.P9, the property is described clearly as dry agricultural land bearing Sy.No.110/01, measuring 2 acres 10 guntas. Therefore, it is clear that whatever was conveyed is the agricultural land its land use was not converted when it was sold. The complainant has not produced any material to show that the land use was converted upto 18.06.2009 i.e. the date of receiving Rs.5,00,000/-. Except his self-
serving testimony that he got converted the land use of the land sold, no other witness is examined nor document is produced. There is nothing to show that there is any agreement between the accused and the purchaser or the 10 complaint for conversion of the land use through the accused and as a consideration for that Rs.5,00,000/- is paid to the accused. Therefore, the Trial Court has rightly held that defence is not proved.
14. The courts below have not only considered the recitals of the sale deed, but have appreciated the said document in proper perspective. Though, an endeavor is made by the learned counsel for the petitioner to show that there was no legally recoverable debt due from the petitioner and the cheque in question was issued as security in respect of the transactions between the sister of the complainant, the inconsistent stand taken by the petitioner as noted in the impugned order itself is sufficient to throw out the defence of the petitioner. Even on re-examining the pleadings and the evidence on record, I do not find any error of law or fact either in the factual finding recorded by the Courts below on the application of the proposition of law to the facts of the case. Therefore, I 11 do not find any justifiable reason to interfere with the impugned judgments. As a result, the revision petition is dismissed.
Sd/-
JUDGE Psg