K R Ravindra Kumar Vs Ravi N M

…RESPONDENT (BY SRI.S.V.PRAKASH, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE COURT OF III ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN CRL.A.NO.30/2016 DATED 8.5.2017 AND THE JUDGMENT AND

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ORDER PASSED BY THE TRIAL COURT, THE ORDER PASSED BY THE III ADDITIONAL CIVIL JUDGE AND J.M.F.C., SHIVAMOGGA IN C.C.NO.3298/2009 DATED 17.2.2016 CONVICTING THE PETITIONER.

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IN CRL.RP NO. 706/2017

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BETWEEN:

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K R RAVINDRA KUMAR S/O RANGAPPA, AGE: 42 YEARS, R/O THIMMAPURA VILLAGE, ANAVATTI HOBLI, TQ:SORABA-577 429, DIST:SHIVAMOGGA

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...PETITIONER

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(BY SMT.MANJULADEVI R.KAMADALLI, ADVOCATE)

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AND:

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VEERAPPA PUTTAPPA KABBINADA

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DEAD BY LRS

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A). SMT NIRMALA V.KABBINADA, W/O LATE VEERAPPA PUTTAPPA KABBINADA AGE: 64 YEARS

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B). NAGARAJA V KABBINADA

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S/O LATE VEERAPPA PUTTAPPA KABBINADA

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AGE: 43 YEARS

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C). NAYANA M B W/O VINAY, AGE 41 YEARS

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D). MRUTHYUNJAYA

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S/O LATE VEERAPPA PUTTAPPA KABBINADA AGE: 39 YEARS

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ALL ARE R/O SAVITHRI NILAYA, 3^RD CROSS, SHIVAMOGGA-577 201

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...RESPONDENTS

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(BY SRI.S.V.PRAKASH, ADVOCATE FOR R1(A-D))

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE COURT OF III ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN CRL.A.NO.29/2016 DATED 8.5.2017 AND THE JUDGMENT AND ORDER PASSED BY THE TRIAL COURT, THE ORDER PASSED BY THE III ADDITIONAL CIVIL JUDGE AND J.M.F.C., SHIVAMOGGA IN C.C.NO.3073/2009 DATED 17.2.2016 CONVICTING THE PETITIONER.

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THESE PETITIONS, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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COMMON ORDER

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In these two petitions filed under Section 397 r/w 401 Cr.P.C, accused has challenged his conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'N.I Act') imposed by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeals filed by him.

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For the sake of convenience, parties are

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referred to by their ranks before the trial Court, the complainant is referred to with his name suffixing complainant.

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It is pertinent to note that in these two petitions, accused is common, but the complainant is different. Both complainants have claimed to have advanced hand loan to the accused and the subject cheques were issued by the accused towards repayment of the same and they are dishonoured for want of sufficient

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funds in the account of the accused. Even though the accused admit that the cheques in question are drawn on his account maintained with his banker, he has denied that they bear his signature. He has taken a common defence that Nagaraj, S/o complainant Veerappa has stolen a cheque book belonging to the accused and handed over

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one cheque to complainant Ravi and utilising another cheque by himself, both of them have filed the complaints making false claim and by forging his signature. Though

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separate trials are held, both parties have lead verbatim same evidence. In the light of the fact that the parties have taken common stand and defence and led almost similar evidence, these two petitions are clubbed and a common judgment is passed.

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It is the case of complainant Veerappa that accused borrowed hand loan of ₹4,00,000/- for his necessity on 16.09.2006, agreeing to repay the same within three months together with interest at 12% per annum. However, he failed to keep up with his promise and on insistance by the complainant, he issued cheque dated 01.01.2007 with a promise to arrange for the funds. However, when complainant Veerappa presented the cheque for encashment, it was returned dishonoured for want of sufficient funds. Even though he got issued legal notice, accused failed to receive the same. He has neither complied with the notice nor sent any reply and hence complaint.

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It is the case of complainant Ravi. N.M that

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accused borrowed a sum of ₹1,00,000/- for his necessity on 22.08.2006, promising to repay the same within three months with interest at 12% per annum. He also failed to fulfill his promise and when insisted upon, issued the subject cheque. When presented for encashment, it was also dishonoured for want of sufficient funds. Despite issue of notice, accused has intentionally failed to receive the same and comply with it. He has also not sent any reply, giving rise to the cause of action for the complaint.

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After due service, accused appeared in both cases and pleaded not guilty.

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In C.C.No.3073/2009, complainant Veerappa

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has examined himself as PW-1 and Manager of the drawer bank as PW-2. He has relied upon Exs.P1 to 7.

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In C.C.No.3298/2009, complainant Ravi. N.M

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has examined himself as DW-1 and Manager of the drawer bank as PW-2 and relied upon Exs.P1 to 7.

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During the course of his statement under

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Section 313 Cr.P.C, the accused has denied incriminating evidence led by the complainants.

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In both cases, accused examined himself as DW-1 and relied upon one document at Ex.D1.

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The trial Court disbelieved the defence taken by the accused and held that he has failed to rebut the presumption and on the other hand, the complainants have proved their case and convicted the accused and sentenced him to pay fine with the default sentence of imprisonment.

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Aggrieved by the same accused approached the Sessions Court in Crl.A.No.29/16 and Crl.A.No.30/2016. Both appeals came to be dismissed, confirming the judgment and order of the trial Court.

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Challenging the concurrent findings of the trial Court and Sessions Court, accused is before this Court

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contending that they are contrary to law, facts and the legal evidence on record. They have failed to appreciate the evidence in right perspective and fell into error. They have not drawn proper inference based on the evidence placed on record. The trial Court as well as the Sessions Court have wrongly placed the burden on the accused. When the accused has denied the transaction and that the subject cheques bear his signature, the Courts below have committed error in arising the presumption under Section 139 of N.I Act. Viewed from any angle, the impugned judgment and order are not sustainable and hence the petition.

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On the other hand, learned counsel

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representing the complainants submitted that it is not in dispute that the cheques are drawn on the account of the accused maintained with his banker. Even though he has disputed that the cheques bear his signature, they are not dishonoured on the ground that signatures in the cheques do not tally with the specimen signature maintained in the

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bank and on the other hand, they are dishonoured for want of sufficient funds. Moreover, the evidence of PW-2 Hanumantha Rao -Manager of the drawer bank establish that the signature on the cheques is that of the accused and on dishonour, complainant has issued legal notice to the accused, which he has intentionally not received. In the light of the compliance of all the mandatory requirements of Section 118 and 139 of NI Act, presumption under Section 139 of N.I Act is attracted, placing the initial burden on the accused to rebut the same. However, the accused has failed to rebut the presumption. On the other hand, the respective

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complainant have led evidence to prove the basic facts. Consequently, the trial Court as well as the Sessions Court have rightly held the accused guilty. There are no grounds, let alone justifiable grounds calling for interference by this Court and pray to dismiss the petitions also.

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Heard arguments of both sides and perused the

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record.

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It is not in dispute that the cheques are drawn on the account of the accused and on presentation, the bank has dishonoured them on the ground of "funds insufficient". Accused is not disputing the address to which the legal notices were sent. It is the same address as given in the complaint to which the Court notice is issued to the accused. However, the accused has not received the notice when the postman visited his address. Therefore, there is presumption of proper service of notice. Despite

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the same, the accused has not complied with the requirement of the notice. He has also not sent any reply spelling out his defence at the earliest available opportunity.

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It is relevant to note that at the trial, the accused has taken a specific defence that though the cheques belong to him, he has not signed them and the signature on the cheques is forged. Admittedly, cheques

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are not dishonoured on the ground that the signature on it does not tally with the specimen signature of the accused.

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Had the dishonour of cheques was on the ground of signature therein not tallying with the specimen signature, it would have supported the defence of the accused. In order to prove that the cheques bear the signatures of accused, complainant has examined Manager of the drawer bank as PW-2. He has deposed in unequivocal terms that the subject cheques are dishonoured for want of sufficient funds and not for any other reason.

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During his cross-examination, DW-2 has

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deposed that when the cheques were dishonoured, he was not working in the Drawer bank, but before coming to the Court, he verified the fact that then the Manager has compared the signature on the cheque with the specimen signature and made sure that it bears signature of drawer. The accused has made a specific allegation that the cheques in question were stolen and they do not bear his signature. However, he has not chosen to get the

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signatures therein examined by the handwriting expert. In the absence of the same, the complainant has proved that cheques bear the signature of accused and therefore the presumption under Section 139 of the N.I Act is attracted, placing the initial burden on the accused to rebut the presumption.

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Since the accused has not sent any reply to the legal notice, the Court is able to know his defence only at the trial, wherein during the cross-examination of both complainant as well as PW-2 - the Manager of drawer bank, he has taken a defence that he and Nagaraj, the son of complainant Veerappa were classmates and from the year 2004 to 2007, they were staying in the same room and at that time, the cheque book belonging to accused went missing. He also enquired with Nagaraj about the missing of the cheque book, but he did not return the same. He had small differences with said Nagaraju, but he has not filed any complaint against him. He has alleged that misusing two cheques he has got filed the complaint

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through his father and complainant Ravi. Of course, both the complainants Veerappa and Ravi have denied the said suggestion.

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Admittedly, from the evidence of the accused as well as the suggestions made to both complainants during their cross-examination, it is evident that accused came to know about the alleged missing of the entire cheque book containing several cheque leaves, including the cheques in question immediately after they went missing. Such being the case, the proper course available to him was to file a complaint about the missing of the cheques or atleast intimate the bank not to honour them, if they are presented for encashment. Admittedly, the accused has not taken any such course, which is inconsistent with the defence taken by him. Had the cheques were dishonoured on the ground that signature therein do not tally with specimen signature, it would have supported the defence of the accused, which is not the case on hand. The very fact that signature on the cheques

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belong to the accused also falsify his defence that they were stolen and his signature therein are forged.

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However, during the course of his evidence, the accused has deposed that the signature in the cheques belongs to him. This totally destroy his defence and crossexamination of PWs-1 and 2 in both cases to the effect that signature in the subject cheques are forged. The very fact that the accused has not given any complaint about the missing of the cheques and at least intimate the bank about the missing of the cheques and give stop payment instruction and having taken inconsistent defence before the trial Court, leaves no room to doubt that he has taken a false defence and failed to establish the same.

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The trial Court as well as the Sessions Court on proper appreciation of oral and documentary evidence on record have rightly held that allegations against accused are proved and convicted and sentenced him. This Court finds no perversity in the conclusions arrived at by them,

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calling for interference by this Court. In the result both

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petition fails and accordingly, the following:

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ORDER

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Petitions filed by the accused under Section 397 r/w 401 of Cr.P.C are hereby dismissed.

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The impugned judgment and orders dated 17.02.2016 in C.C.No.3073/2009 and C.C.No.3298/2009 on the file of III Addl.Civil Judge and JMFC, Shivamogga and judgment and orders dated 08.05.2017 in Crl.A.No.29/2016 and Crl.A.No.30/2016 on the file of III Addl. Sessions Judge, Shivamogga are confirmed.

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The Registry is directed to return the trial Court as well as Sessions Court records along with a copy of this order forthwith.

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Sd/(J.M.KHAZI) JUDGE

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RR

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List No.: 1 Sl No.: 54

K R Ravindra Kumar v. Ravi N M

Case brief

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K R Ravindra Kumar v. Ravi N M

Case brief

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