Dismissed

Sri v. Venkatesh v Sri S Shivalingaiah

Karnataka HC7 Mar 2013CRL.RP/684/2011

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed a revision petition challenging conviction and sentence under Section 138 NI Act. The court observed that while the accused raised defects in service of notice and the nature of debt, he failed to adduce documentary evidence to prove the defense of the debt not being legally enforceable.

What did the court decide?

The criminal revision petition challenging the judgment of conviction and sentence under Section 138 NI Act was dismissed.

Sri v Venkatesh Vs Sri S Shivalingaiah — Cheque Dishonour | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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Dated this the 7^th day of March 2013

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Before

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Hon’ble Mr.Justice V.SURI APPA RAO

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CRL.R.P. No.684 OF 2011

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Between:

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Sri V.Venkatesh, S/o Chinnappa, Gowri Venkateshwara General Stores, 1^st Main Road, Venkatapura, Bangalore – 560034. …Petitioner

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(By Sri S.Suresh, Adv.)

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And:

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Sri S.Shivalingaiah, S/o late Siddalingaiha, R/a No.C/1, Police Quarters, 14^th Cross,Vijaya Nagar, Bangalore – 560040. …Respondent

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(By Sri G.Shankar Goud, Adv.)

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This Crl. RP is filed under Section 397 r/w 401 Cr.P.C. praying that this Hon’ble Court be pleased to quash the judgment and conviction and sentence dt.23.3.2011 passed in Crl.A.No.731/10 by P.O., FTC-XVII, Bangalore City, and quash the judgment and conviction dt.20.09.2010 passed in 7259/05 by XII Addl. C.M.M., Bangalore.

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This Crl. RP coming on for hearing this day, the Court, made the following:

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O R D E R

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This Criminal Revision Petition is directed against

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the judgment of conviction and sentence passed by the XII Addl. Chief Metropolitan Magistrate, Bangalore, in C.C.No.7259/2005 and confirmed by the Presiding Officer, Fast Track Court-17 at Bangalore City, in Crl.A.No.731/2010, whereby the revision petitioner was convicted under Section 138 of N.I. Act and sentenced to pay a fine of Rs.1,05,000/-. In default of payment of fine amount the accused shall undergo simple imprisonment for one year. Out of the fine amount of Rs.1,05,000/-, Rs.1,00,000/- shall be paid to the complainant and the balance amount of Rs.5,000/shall be forfeited to the State.

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For the sake of convenience the parties are

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referred to as they are arrayed in the Trial Court.

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The relevant facts leading to this appeal are as

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hereunder:

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On 01.02.2004 the complainant advanced an

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amount of Rs.90,000/- to the accused who had agreed to repay the same with interest at 2% per month and issued cheque bearing No.573619 for due payment of the amount. The complainant presented the cheque into his bank and the same was dishonoured with endorsement as ‘insufficient funds’. Therefore, the complainant issued legal notice dated 08.10.2004 which was duly served on the accused on 09.10.2004. As the accused failed to repay the amount inspite of legal notice the complainant filed a complaint before the Trial Court for the offence under Section 138 of N.I.Act.

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When questioned by the Trial Court, the accused denied the offence and pleaded not guilty. Thereupon the Trial Court examined the complainant as PW.1 and marked documents at Exs.P1 to P6. The

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accused examined himself as DW1 and no documents were marked on his behalf. Considering the evidence available on record, the Trial Court found the accused guilty of the offence under Section 138 of N.I.Act and passed the above order of conviction and sentence.

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Aggrieved by the order of sentence and

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conviction, the accused filed Crl.A.No.731/2010 before the Fast Track Sessions Court XVII, Bangalore, which was also dismissed and the Appellate Court confirmed the judgment of conviction and sentence passed by the Trial Court. The accused has therefore filed this revision petition challenging the judgments of both the Courts below on the ground that the cheque was not issued for the legally enforceable debt. It is the further case of the accused that the legal notice as required under Section 138 of N.I.Act was not duly served on the accused.

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The learned Counsel for the accused submits

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that the legal notice was issued to ‘V.Venkatesh’, whereas the surname of the accused is ‘C.Venkatesh’ as was admitted by the complainant in his crossexamination.

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In support of his contention, the learned

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Counsel for the accused placed reliance in the case of M/s.Rahul Builders Vs. M/s.Arihant Fertilizers & Chemical & Another reported in 2007 AIR SCW 7008 wherein the Hon’ble Supreme Court held service of notice is imperative in character for maintaining a complaint and it creates a legal friction. Notice was served in conformity with proviso to Section 138 of N.I.Act. The complainant’s petition would not be maintainable. He also placed reliance on an unreported judgment of this Court in Crl.A.No.689/2011 dated 29.11.2011, wherein it is held to constitute an offence under Section 138 of N.I.Act, the cause of action arises

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for the complainant only when he makes demand for

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payment and there was refusal to pay.

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Relying on the above decisions, the learned

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Counsel for the accused-revision petitioner submits that in the instant case, the notice dated 08.10.2004 is said to have been returned unserved, as the notice was addressed to wrong address and it was not addressed to the correct address where the accused was residing. It is further submitted that as on the date of sending the notice, the accused was residing in ‘Hosapalya’. But the notice is not served to that address. The learned Appellate Court has clearly discussed about this aspect at paras-16 and 18 of its judgment.

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As seen from the postal cover and endorsement,

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the notice sent to the accused is returned unserved with endorsement “addressee refused return to sender”. Therefore, the learned Appellate Court was of the view that the legal notice sent to the accused was returned

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as refused. Hence there is deemed notice of legal notice on the accused, after the cheque had been returned with endorsement as insufficient funds in the account of the accused. Though the accused has contended that he is residing in ‘Hosapayla’ as on the date of sending the notice, he did not choose to adduce any kind of evidence to prove that he is not residing in the address mentioned in the registered notice sent by the complainant. During the course of cross-examination of PW1 it is not even suggested to him that the address shown in the legal notice does not belong to the accused and that the accused is residing elsewhere.

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The learned Counsel for the respondent contends that surname of the accused is ‘V.Venkatesh’ and not ‘C.Venkatesh’ as alleged by the accused and that the notice was duly served to V.Venkatesh. It is therefore for the accused to prove that his surname is ‘C’ but not ‘V’ as was mentioned in the complaint and in

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the registered notice sent to him before filing of the complaint. The complainant further filed the Certificate of Posting to prove that the notice contemplated under Section 138 of N.I.Act was duly served on the accused before filing the complaint when the accused refused to repay the amount. Therefore, the decisions relied on by the learned Counsel for the accused are not applicable to the facts of this case.

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So far as the issuance of Ex.P1 cheque by the accused, it is mentioned that the accused has admitted that he issued cheque in favour of the complainant in connection with payment of instalments. It is the specific case of the accused that the complainant being his relative approached him, when he informed that his daughter’s marriage was fixed and he has to give motor bike to his son-in-law, the accused informed him that he would purchase the bike in his name on instalment basis and accordingly he purchased the bike in his

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name on instalment basis and at the time of availing loan for purchasing motorbike the finance company had taken blank cheques from him towards repayment of the instalments. He handed over the bike to the complainant and also gave Form Nos.29 and 30 relating to the RTO Office for transfer of the vehicle in the name of the son-in-law of the complainant. He got cleared the entire loan amount to the finance company except the final two instalments. Thereafter he requested the complainant to make arrangements for payment of the balance amount and that the complainant has undertaken to repay the balance amount and to receive the blank signed cheques from the finance company and to handover the same to the accused. Thereafter the accused went to the house of the complainant and requested him to handover the cheques but the complainant’s refused to return the same and misused the cheques and filed false complaint. When such is the defence of the accused, it is for the accused to prove

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that he has purchased the motorbike through a finance company by executing documents and issued blank cheques in favour of the finance company. But he did not choose to examine any witnesses to prove that he availed loan for purchase of bike and executed documents in favour of the finance company and gave blank cheques. He has not filed any documentary evidence or examined any witness to prove that the bike was initially purchased in his name and subsequently transferred in the name of the son-in-law of the complainant by affixing his signature on Form Nos.29 and 30 for transfer of the vehicle.

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Admittedly, Ex.P1-cheque is for Rs.90,000/-

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for payment of the balance instalments for repayment of the loan for purchasing bike, for which, one need not issue cheque for Rs.90,000/- which is more than the value of the motorbike said to have been purchased by

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the accused in his name and to transfer the same to the

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son-in-law of the complainant.

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documentary evidence on record, the Trial Court and

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the Appellate Court have rightly found the accused guilty for the offence under Section 138 of N.I.Act and there are no grounds to interfere with the order of conviction and sentence passed against the accused.

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Accordingly, the revision petition filed by the

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accused is dismissed.

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Sd/JUDGE

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JT/-

Sri v. Venkatesh v Sri S Shivalingaiah

Case brief

What is this about?

What did the court decide?

Sri v. Venkatesh v Sri S Shivalingaiah

Case brief

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