Mr v H Yogesh Vs Yelahanka Merchant Finance Company

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NC: 2025:KHC:47933 CRL.RP No. 1586 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF NOVEMBER, 2025 BEFORE

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THE HON'BLE MR. JUSTICE RAVI V HOSMANI CRIMINAL REVISION PETITION NO. 1586 OF 2023

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BETWEEN:

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MR V H YOGESH, S/O NANJE GOWDA, AGED ABOUT 48 YEARS, R/A NO.804, JALAHALLI VILLAGE, BAHUBALI NAGAR, BENGALURU - 562 123, MAIL ID. [email protected] MOB. 8660682679

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…PETITIONER

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(BY SRI BHAT MANJUNATH NARAYANA, ADVOCATE)

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AND:

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YELAHANKA MERCHANT FINANCE COMPANY, HEMKUMAR NAGAR, BY PASS BB ROAD, YELAHANKA, BENGALURU - 560 064, REP ITS MANAGER AND GPA HOLDER, SMT. ANITA, W/O SRI NARENDARA KUMAR.

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…RESPONDENT

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Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka

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(BY SRI M. SUBRAMANI, ADVOCATE)

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THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE IMPUGNED JUDGMENT AND ORDER DATED 23.08.2023 PASSED IN CRL.A.NO.50/2019 BY THE COURT OF LVI ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU ANNEXURE-1 FOR THE OFFENCE P/U/S 138 OF N.I ACT AND TO SET ASIDE THE JUDGMENT AND ORDER DATED 05.12.2018 PASSED IN C.C.NO.22241/2015 BY THE XXV A.C.M.M AT BENGALURU U/S 255(2) CR.PC U/S 357(1)(b) AND 357(1) (a) OF CR.PC AT ANNEXURE-2I.A.NO.1/2023 FOR CD IN FILING AS NOT PRESSED.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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NC: 2025:KHC:47933 CRL.RP No. 1586 of 2023

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HC-KAR

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ORAL ORDER

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Challenging judgment dated 23.08.2023 passed by LVI Additional City Civil and Sessions Judge, Bengaluru (CCH-57), in Crl.A.no.50/2019 confirming judgment of conviction and order of sentence dated 05.12.2018 passed by XXV Additional Chief Metropolitan Magistrate, Bangalore, in C.C.no.22241/2015, this revision petition is filed.

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Sri Manjunath Narayana Bhat, learned counsel for petitioner (accused) submitted that revision petition was against concurrent erroneous judgments, convicting accused for offence punishable under Section 138 of Negotiable Instruments Act, 1881, ( 'NI Act ', for short).

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It was submitted, respondent (complainant) had filed complaint alleging that complainant was a registered Partnership Firm, carrying on financial business and accused had approached complainant on 13.08.2013 and obtained loan of Rs.7,50,000/- by executing receipt and agreeing to repay with interest/penal interest within short period. It was submitted, on demand, accused had issued cheque bearing no.881538 dated 30.03.2015 for Rs.7,69,993/- drawn on Vijaya Bank, Jalahalli, Bangalore, which when presented for

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3 - NC: 2025:KHC:47933 CRL.RP No. 1586 of 2023

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HC-KAR

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collection, returned with endorsement 'account blocked situation covered in 2125' on 07.04.2015 and demand notice got issued on 07.05.2015, returned with endorsement 'no such person' despite accused residing at same address and failed to repay amount thereby committed offence punishable under Section 138 of NI Act.

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It was submitted, on appearance, accused had denied charges and sought trial. Thereafter, complainant had examined one of its Partners as PW.1 and got marked Exhibits P1 to P30. On being appraised of incriminating materials, accused denied same as false and his statement under Section 313 of CrPC was recorded. Thereafter, accused did not step into witness-box since he had substantiated his defence in crossexamination of PW.1. Despite same, Trial Court without proper appreciation of material on record, convicted accused. Even appeal filed was dismissed without proper re-appreciation leading to this revision petition.

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It was submitted, impugned judgments suffer from perversity as well as infraction of statutory provision. It was submitted, Section 138 of NI Act, mandated that a private complaint was required to be preceded with issuance of due

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NC: 2025:KHC:47933 CRL.RP No. 1586 of 2023

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HC-KAR

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demand notice and its service on accused. It was submitted, demand notice got marked as Ex.P7 along with postal acknowledgements and covers as Exs.P8 to P11 would indicate that they were addressed to Sri V.N. Yogesh S/o Nanje Gowda, whereas complaint was filed against Sri V.H. Yogesh.

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It was further submitted, as per contents of Ex.P7, endorsement of dishonour was received by complainant on 07.04.2015. However demand notice was got issued on 07.05.2015 which would be beyond period of 30 days as prescribed under Section 138 (b) of NI Act. Consequently, complaint filed was untenable.

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Both Courts had concurrently failed to appreciate said facts in proper perspective and thereby judgments were perverse. On said ground sought for allowing revision petition.

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Heard learned counsel, perused impugned judgments and Trial Court record.

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This revision petition is by accused challenging concurrent judgments, convicting him for offence punishable under Section 138 of NI Act. Impugned judgments are challenged as being contrary to statutory provision as well as to

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HC-KAR

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material on record. Insofar as first contention that complaint was not preceded with duly addressed and served demand notice, it is indeed seen that addressee of Ex.P7 - notice was V.N. Yogesh S/o Nanje Gowda, residing at no.807, Jalalhalli village, Bahubali Nagar, Bangalore-13.

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In complaint, accused is described as V.H. Yogesh S/o Nanje Gowda at no.807, Jalahalli illage, Bahubali Nagar, Bangalore-13. It is not in dispute that accused was duly served with summons on said address, even in this revision petition as well as in Crl.A.no.50/2019 name and mentioned address is same. Merely on account of typographical error in initials of accused as V.H. Yogesh instead of V.N. Yogesh, it cannot be said that notice was not addressed to accused, especially when description includes father's name and reference to accused s also with place of residence. It is not demonstrated that accused was never residing at said address or that some other person by name V.H. Yogesh with same/similar father's name was residing there. In absence of prejudice caused due to minor mis-description, it cannot be held that there is noncompliance with statutory requirement.

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NC: 2025:KHC:47933 CRL.RP No. 1586 of 2023

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HC-KAR

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Insofar as failure to comply with time line in Section 138 (b) of NI Act, it is not in dispute that endorsement of dishonoured cheque was received by complainant on 07.04.2015. For purposes of calculating period of 30 days prescribed in Section 138 (b) of NI Act, 07.04.2015 has to be excluded. Thus notice issued on 07.05.2015 as indicated in Ex.P7 as well as postal receipts about dispatch on 07.05.2015 would be on 30^th day. Thus, there would be no infraction of Section 138 (b) of NI Act.

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While passing impugned judgments, Trial Court as well as Appellate Court have considered entire material on record and arrived at reasoned conclusion. Besides above, it is seen that said grounds were not urged either before Trial Court or in appeal.

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For aforesaid reasons, revision petition is without merit

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and is dismissed .

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Sd/(RAVI V HOSMANI) JUDGE

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GRD

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List No.: 1 Sl No.: 40

Mr v. H Yogesh v Yelahanka Merchant Finance Company

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Mr v. H Yogesh v Yelahanka Merchant Finance Company

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