Dismissed

G P Ramamurthy v. M R Shanmukappa

Karnataka HC11 Jan 2023CRL.RP/1080/2018

Case brief

AI extract

What is this about?

The High Court of Karnataka amidst a revision petition dismissed it, upholding the conviction and sentence under Section 138 of the N.I. Act. The Court held that the notice of demand was deemed served under Section 27 of the General Clauses Act and found no evidence that the cheque was issued for a third party's loan.

What did the court decide?

Revision petition dismissed; deposit ordered to be released to the respondent; records returned to Trial and Appellate Courts.

G P Ramamurthy Vs M R Shanmukappa — Cheque Dishonour | Karnataka HC (2023)

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CRL.RP No. 1080 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL REVISION PETITION NO. 1080 OF 2018

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BETWEEN:

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G.P. RAMAMURTHY S/O PANDURANGAPPA, AGED ABOUT 48 YEARS, R/O RAILWAY ELECTRICIAN, (RAILWAY ELECTRICALS), R/O RAILWAY QUARTERS, NO.61/B, MAIN CHARCH ROAD, ARASIKERE, HASANA DISTRICT-573201.

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…PETITIONER

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(BY SRI. SHANMUKHA G.C., ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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M.R. SHANMUKAPPA S/O RANGAPPA, AGED ABOUT 48 YEARS, R/O VISHWANATHAHALLY VILLAGE, KALAGATTA VILLAGE, HOLALKERE TALUK, CHITRADURGA DISTRICT-577526.

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…RESPONDENT

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(BY SRI. B.M.SIDDAPPA, ADVOCATE)

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THIS CRL.RP IS FILED UNDER SECTION 397(1) READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE LEARNED I^ST ADDITIONAL DISTRICT AND SESSIONS JUDGE,

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CRL.RP No. 1080 of 2018

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CHITRADURGA, IN CRL.A.NO.15/2018, DATED 04.08.2018, AND ALSO LEARNED PRINCIPAL CIVIL JUDGE AND JMFC, HOLALKERE, IN C.C.NO.128/2012, DATED 14.02.2018 AND ACQUIT THE PETITIONER FOR THE OFFENCE UNDER SECTION 138 OF N.I ACT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner has called in question the regularity of procedure and legality of the Judgment of conviction dated 14.02.2018 passed by the Principal Civil Judge and JMFC., Holalkere, (for short, 'the Trial Court') in C.C. No.128/2012 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (for short, ‘the N.I. Act’) as well as the consequent sentence directing the petitioner to pay a sum of Rs.2,05,000/- as fine failing which he was directed to undergo simple imprisonment for a period of three months. The petitioner has also called in question the correctness of the Judgment passed by the I Additional District and Sessions Judge, Chitradurga, (for short, 'the Appellate Court') in Crl.A. No.15/2018.

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CRL.RP No. 1080 of 2018

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The respondent claimed that the petitioner had

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availed hand loan of Rs.2,00,000/- from him and thereafter, had passed on a cheque bearing No.282240 dated 23.09.2011 drawn on Karnataka Bank, Harihara branch (henceforth referred to as ‘the cheque in question’) for a sum of Rs.2,00,000/-. However, when the said cheque was presented for encashment on 23.09.2011, it was dishonoured due to insufficient funds as per the endorsement of the Bank dated 20.10.2011. The respondent issued a notice of demand, however, the notice was not claimed by the petitioner. The respondent therefore, initiated prosecution against the petitioner for the offence punishable under Section 138 of the N.I. Act.

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The petitioner appeared pursuant to process served

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on him and pleaded not guilty and claimed to be tried. The respondent was examined as PW.1 and he marked documents Exs.P1 to P9. The petitioner confronted Ex.D1 during the course of cross-examination of PW.1 and he closed his side. The statement of the petitioner was recorded under Section 313 of the Code of Criminal Procedure, 1973. The petitioner

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CRL.RP No. 1080 of 2018

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was thereafter examined as DW.1 and he marked a document

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as Ex.D2.

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Based on the oral and documentary evidence, the Trial Court held that the respondent herein had proved that the cheque in question was issued by the petitioner herein towards discharge of a lawful debt and due to the dishonour of the said cheque, due to insufficient funds, the Trial Court held that the petitioner herein had committed an offence punishable under Section 138 of the N.I. Act and therefore, convicted him for the said offence and sentenced him to pay a fine of Rs.2,05,000/and on failure to pay the fine, the petitioner herein was directed to undergo simple imprisonment for a period of three months. Being aggrieved by the same, the petitioner filed an appeal in criminal Appeal No.15/2018, which was dismissed in terms of the Judgment dated 04.08.2018.

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Being aggrieved by the same, the present revision petition is filed.

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The learned counsel for the petitioner submitted that the notice in question was not served upon the petitioner.

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CRL.RP No. 1080 of 2018

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He submitted that it was incumbent upon the respondent to serve the notice of demand on the petitioner and since it was not done, an action under Section 138 of the N.I. Act does not lie. He further contended that as per Ex.D2, the petitioner was not residing at the address mentioned in the notice of demand. Therefore, the notice of demand was not duly served. He further contended that the respondent had admitted Ex.D1, which was a cheque drawn by Sri S.H. Ramachandrappa and stated to be given by the petitioner in favour of the respondent for a sum of Rs.75,000/-. He contended that this cheque was given by the petitioner as security towards loan raised by Sri S.H. Ramachandrappa from the respondent. He, therefore, contended that the respondent had misused the cheque that was given to him.

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Per contra, the learned counsel for the respondent submitted that the petitioner was employed in the Indian Railways. He submitted that as per Ex.P8, the petitioner was transferred from Subramanya Road Station to Arasikere during June 2011. He submitted that as per Ex.P9, the petitioner was not occupying the Railway quarters at Subramanya road but

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CRL.RP No. 1080 of 2018

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was residing in quarters No.215/A at Arasikere from 14.03.2013 and prior to that, he was residing in quarters No.61/B from 01.07.2003 to 13.03.2013. He therefore, submitted that Ex.D2 is doubtful.

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I have considered the submissions made by the learned counsel for the petitioner as well as the learned counsel for the respondent.

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The petitioner has not disputed his signature on the cheque in question and also the fact that the cheque in question was issued from his account. The defense of the petitioner were two fold, one that the notice of demand was not served upon him as he was not residing at Arasikere. The other was that the cheque in question was not issued to the respondent, but was issued towards securing the loan of one Sri S.H. Ramachandrappa. The documents, namely, Ex.P8 and P9 placed on record by the respondent are the information secured by him through Right to Information Act, 2005 from the South Western Railway which discloses that the petitioner was transferred from Subramanya Road Station to Arasikere in June 2011 and that he was not occupying the railway quarters

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CRL.RP No. 1080 of 2018

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at Subramanya Road. Therefore, it is evident that the petitioner was occupying the railway quarters at Arasikere. The notice of demand was issued to the petitioner at his address at Arasikere and the same was not claimed by the petitioner. In view of Section 27 of the General Clauses Act, 1897 the notice is deemed to be served. Therefore, the petitioner cannot contend that the notice of demand was not served upon him as he had not claimed the notice issued by the respondent. In so far as the other contention that the cheque in question was not issued to the respondent, but to a person named Ramachandrappa, there is no positive evidence to accept the contention of the petitioner. Ex.D1 does not say anything more than the fact that Sri S.H. Ramachandrappa had drawn the said cheque in favour of the respondent for a sum of Rs.75,000/-. The petitioner made no efforts to summon or secure the presence of any of the family members of Sri S.H. Ramachandrappa to depose about the said fact. The petitioner therefore miserably failed to rebut the presumption under Section 139 of the N.I. Act and therefore, the defense of the petitioner was not substantially established.

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CRL.RP No. 1080 of 2018

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In that view of the matter, the Trial court as well as the appellate Court were justified in convicting the petitioner for the offence punishable under Section 138 of the N.I. Act and sentencing him to pay a fine of Rs.2,05,000/-. This Court does not see any irregularity in the procedure adopted by the Trial Court as well as the Appellate Court in disposing off the proceedings or any illegality in the imposition of sentence on the petitioner by the said Courts.

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In that view of the matter, this revision petition fails and is dismissed.

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Any amount in deposit is ordered to be released to the respondent.

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The Registry is directed to return the records of the Trial Court as well as the Appellate Court forthwith.

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Sd/JUDGE

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sma

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List No.: 1 Sl No.: 22

G P Ramamurthy v. M R Shanmukappa

Case brief

What is this about?

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G P Ramamurthy v. M R Shanmukappa

Case brief

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