Dismissed

Sri. Ramakrishnappa v. Smt.Bhagyamma

Karnataka HC18 Nov 2020CRL.RP/692/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a Criminal Revision Petition challenging conviction and sentence under Section 138 of the Negotiable Instruments Act. The Court held that the petitioner failed to rebut the presumption of liability under Section 139 and that service of notice was valid despite identity discrepancies.

What did the court decide?

Petition dismissed; impugned orders of conviction and sentence confirmed.

Sri. Ramakrishnappa Vs Smt.Bhagyamma — Cheque Dishonour | Karnataka HC (2020)

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Crl.R.P.No.692/2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.692/2017

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BETWEEN :

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SRI RAMAKRISHNAPPA S/O LATE RANGAPPA AGED ABOUT 48 YEARS R/AT D.NO.8/1, VEERA MANJAIAH NILAYA 7^TH MAIN ROAD, 60 FT ROAD BAGALAGUNTA, NAGASANDRA POST BENGALURU – 560 073 AND ALSO AT NISARGA ENTERPRISES REP. BY ITS PROPRIETOR RAMAKRISHNAPPA D.NO.358, 6^TH MAIN MAHALAYOUT, 60 FEET ROAD BAGALAGUNTA, NAGASANDRA POST BENGALURU – 560 073 …PETITIONER (BY SRI RAMALINGAM P H, ADVOCATE)

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AND :

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SMT.BHAGYAMMA W/O KEMPE GOWDA R/AT THOTADAGUDADALLI NAGASANDRA POST BENGALURU – 560 073 …RESPONDENT (BY SRI VINAY S, ADVOCATE)

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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 AND ORDER OF SENTENCE AND CONVICTION DATED 15.06.2016 PASSED BY XII ADDITIONAL CHIEF

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Crl.R.P.No.692/2017

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METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.25244/2012 AND TO SET ASIDE THE ORDER DATED 30.05.2017 PASSED BY LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN CRIMINAL APPEAL NO.806/2016 ETC.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 2^ND NOVEMBER 2020, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT THROUGH VIDEO CONFERENCE MADE THE FOLLOWING:

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O R D E R

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“Whether the impugned orders of conviction and

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sentence passed against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short) suffers any illegality, impropriety or incorrectness”? is the question involved in this case.

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Petitioner was the accused and the

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respondent was the complainant. For the purpose of convenience, the parties will be referred to henceforth with their ranks before the trial Court.

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Accused and the complainant were admittedly acquainted with each other. On 19.06.2012, the complainant presented cheque Ex.P1 dated 15.04.2012 purportedly drawn by the accused in her

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Crl.R.P.No.692/2017

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favour for Rs.10,00,000/- drawn on HDFC Bank, Magadi Chord Extension Branch, Vijayanagar, Bengaluru through her account on Vijaya Bank, Dasarahalli Branch, Bengaluru.

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As per the Banker’s memo Ex.P2 dated 21.06.2012, the cheque was returned with endorsement “insufficient funds”. The complainant got issued statutory notice as per Ex.P3 addressed to Ramakrishnappa S/o. Rangappa, the proprietor of Nisarga Enterprises. As per Exs.P4 and P5, the postal acknowledgements, the notices were received by H.Manjula. Thereafter, the complainant filed the complaint before the XII Additional Chief Metropolitan Magistrate, Bengaluru against the Accused Ramakrishnappa S/o. Rangappa to prosecute him for the offence punishable under Section 138 of the Act.

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It was alleged in the complaint that the accused borrowed Rs.10,00,000/- from the complainant assuring to repay the same within three months and towards discharge of that liability, he issued cheque Ex.P1 without making arrangements for realization of the

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Crl.R.P.No.692/2017

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same. It was further alleged that despite service of statutory notice, the accused did not pay the cheque amount. Thereby, the accused committed the offence punishable under Section 138 of the Act.

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The trial Court after taking cognizance,

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summoned the accused and tried him for the offence punishable under Section 138 of the Act. Before the trial Court, the accused admitted that the cheque Ex.P1 pertains to his account and bears his signature. But he challenged the liability on the following grounds:

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(i) He is not the person against whom the proceedings were initiated. Thus his identity in the proceedings was denied.

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(ii) The service of statutory notice on him was

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disputed;

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(iii) That the cheque was given to the father of the complainant in 2011-2012 in connection with land deal and that cheque was misused to implicate him in the criminal case;

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(iv) Lending capacity of the complainant and his liability towards the complainant was denied.

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Crl.R.P.No.692/2017

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Reg. Identity of the petitioner/accused and

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service of statutory notice:

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It is no doubt true that in the complaint, the complainant described the accused Ramakrishnappa S/o. Rangappa, the Proprietor of Nisarga Enterprises. As already pointed the Accused admitted the issuance of the cheque Ex.P1. On Ex.P1 his name was printed as “Ramakrishna.S”. Therefore, he claimed that he is Ramakrishna S/o. Sanneerappa.

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The further contention of the accused was that the statutory notice as required under Section 138 of the Act was not served on him. The complainant claimed that the notice was served on the wife of the accused by name Manjula. The accused claimed that the recipient of the notice is H.Manjula and his wife is R.Manjula. Therefore the identity of H.Manjula was also disputed.

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Ex.P3 notice was addressed to Ramakrishnappa S/o. Rangappa, Door No.8/1, Veera Manjaiah Nilaya, 7^th Main Road, 60 Feet Road, Bagalagunta, Nagasandra Post, Bengaluru- 560 073 and

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Crl.R.P.No.692/2017

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Nisarga Enterprises , Door No.358, 6^th Main, Mahalayout, 60 Feet Road, Bagalagunta, Nagasandra Post, Bengaluru560 073.

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When DW.1/the accused was questioned in

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the cross-examination as to how he came to know about the proceedings pending in the Court, he said that, he came to know about the same through Krishnappa the Proprietor of Nisarga Enterprises. He further claimed that himself and the proprietor of Nisarga Enterprises were together doing real estate business and selling the sites. He deposed that the said Proprietor of Nisarga Enterprises resides in a house situated in front of his house till date.

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It was the case of the complainant that notice was sent to the accused to the address furnished by himself. Though accused denied that suggestion, he did not choose to examine the said Krishnappa.

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It is evident from Exs.P4 and P5 notice was served on both the addresses and on 27.07.2012 the

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Crl.R.P.No.692/2017

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recipient has signed the postal acknowledgement as H.Manjula.

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It is true that in Ex.D3 to Ex.D6 the copies of the Aadhar Card and the voters I.D of the accused and his wife Manjula, they were shown as residents of Chikkabanagere, Sira Taluk. Ex.D3 and Ex.D4 were issued on 01.12.2011 and 03.01.2012 respectively. Ex.D5 was issued on 02.03.2003. Ex.D6 was issued on 16.12.2010. Therefore, none of them related to the period of notice i.e. July 2012.

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As already pointed out, accused himself admitted that himself and the alleged Krishnappa, the Proprietor of Nisarga Enterprises are living in the houses facing each other. Under the circumstances, the Courts below were justified in holding that the address mentioned in the notice was that of the accused.

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So far as service of notice on his wife, the accused admitted that his wife is Manjula. But claimed that she is R.Manjula and not H.Manjula. The complainant cannot be forced to prove that the persons

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by name Ramakrishnappa S/o. Rangappa or H.Manjula do not exist. It was for the accused to examine those persons to establish that there is another person by name Ramakrishnappa S/o. Rangappa and H.Manjula in that address.

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The accused neither choosed to examine Ramakrishnappa S/o. Rangappa to prove his existence nor his wife Manjula to deny her signatures on the postal acknowledgements Ex.P4 and Ex.P5. It was not his case that himself and the complainant were total strangers.

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The accused himself set up a case that himself and some others entered into a transaction of sale of property with the father of the complainant and in that connection he had issued the cheque. Further, in his appeal memorandum before the Sessions Court and in the above petition the accused described himself as Ramakrishnappa S/o. Rangappa. Under the circumstances, the Courts below were justified in holding that the accused and Ramakrishnappa S/o. Rangappa are one and the same and accused cannot take advantage of

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the variation in his name in the cheque, the notice and complaint. The notice was duly served on the complainant.

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Reg. the liability under the Cheque:

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The accused admitted that the cheque

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pertains to his account and it bears his signature. But his defence was that he had issued the said cheque to the father of the complainant as security in the transaction of sale of land between himself and his Associates on the one hand and father of the complainant on the other hand.

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As rightly pointed out by the Courts below on

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the accused admitting the issuance of the cheque, the complainant is entitled to the benefit of presumption under Section 139 of the Act that the cheque was issued towards discharge of liability. To rebut the presumption, the accused relied on Ex.D1 the alleged agreement dated 30.01.2012 between the complainant, her siblings and her parents. Under the said agreement, the complainant, her siblings and her mother purportedly authorized her father Nanjundappa to sell the land bearing Survey

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No.59/2 measuring 4 acres 30 guntas of

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Thotadaguddadahalli village. According to the accused, as security for settling the said transaction, he had issued the cheque.

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As rightly pointed by the trial Court, the accused is not a party to the said document. The accused tried to claim that though he was not the direct purchaser, he was a facilitator in the sale. But he did not choose to examine the said purchasers. He admitted that in Ex.D1 which proceeded from his own custody, there was clear recital that the executants of Ex.D1 have not received any consideration under the said document. Therefore, the Courts below rightly held that the accused failed to rebut the presumption under Section 139 of the Act and the cheque was issued towards discharge of his liability of Rs.10,00,000/-.

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Reg. Lending capacity:

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Though it was argued before this Court that the complainant had no lending capacity, in the crossexamination of PW.1 there was no specific assertion regarding the same. In the notice Ex.P3, the complainant

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Crl.R.P.No.692/2017

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had claimed that she had received money from family settlement and out of that she had lent Rs.10,00,000/- to the accused.

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The complainant produced Exs.P6 and P7 the sale deeds dated 29.10.2011 and 01.02.2012 to prove her lending capacity. Under Ex.P6 dated 29.10.2011, the complainant, her parents and siblings sold 1 acre 3 guntas out of 4 acres 30 guntas in land bearing Survey No.59/2 for a consideration of Rs.54,00,000/-. Under Ex.P7 dated 01.02.2012, the complainant had purchased a house for consideration of Rs.8,54,000/-.

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It was argued that on the complainant purchasing the property under Ex.P7, her share of money if any would have been exhausted, therefore, she was required to prove that she had additional sum of Rs.10,00,000/-. But what was sold under Ex.P6 was only 1 acre and 3 guntas and not the entire land. As per the accused himself, the complainant and her siblings had authorized their father to sell the entire land. More over there was no specific assertion in the cross-examination

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of PW.1 about her incapacity for lending. Therefore, the defence regarding the lending capacity has no merits.

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No grounds are made out warranting

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interference of this Court in the impugned orders of the Courts below. Therefore, the petition is dismissed.

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Sd/JUDGE

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KSR

Sri. Ramakrishnappa v. Smt.Bhagyamma

Case brief

What is this about?

What did the court decide?

Sri. Ramakrishnappa v. Smt.Bhagyamma

Case brief

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What did the court decide?

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