Sri. Jagadish. K. C. Vs Sri. Harish

SRI. JAGADISH.K.C S/O CHIKKANNA, AGED ABOUT 35 YEARS, KANUVANAHALLI VILLAGE, SOLADEVANAHALLI POST, NELMANGALA TALUK, BANGALORE RURAL DISTRICT-562 127.

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…PETITIONER

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(BY SRI. BASAVARAJA H T, ADVOCATE)

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AND:

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Digitally signed by REKHA R Location: High Court of Karnataka

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SRI. HARISH S/O BASAVARAJU, AGED ABOUT 35 YEARS, R/AT NO. 108/4, 4^TH 'E' CROSS, 2^ND MAIN ROAD, SOLLAPURADAMMA LAYOUT, SUNKADAKATTE, BENGALURU-560 091.

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…RESPONDENT

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(BY SRI. VENKATESH C R, ADVOCATE)

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NC: 2025:KHC:13546 CRL.RP No. 954 of 2022

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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 CONVICTION AND SENTENCE PASSED BY THE COURTS BELOW i.e THE LXIX ADDL.CITY CIVIL AND SESSIONS COURT (CCH-70) BENGALURU IN CRL.A.NO.468/2019 DATED 07.06.2022 AND THE XXII A.C.M.M., NRUPATHUNGA ROAD, BENGALURU CITY IN C.C.NO.21197/2015, DATED 28.01.2019 AND ALLOW THE PETITION BY ACQUITTING THE RP/ACCUSED.

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

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ORAL ORDER

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In this petition filed under Section 397 r/w 401 Cr.P.C, petitioner who is accused has challenged his conviction and sentence for the offence punishable under Section 138 of N.I. Act, passed by the trial Court, which came to be confirmed by the Sessions Court by dismissing the appeal filed by him.

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For the sake of convenience, parties are referred to by their ranks before the trial Court.

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Complainant filed the complaint alleging that he

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and accused are friends since 7-8 years. Accused is

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working as a lorry driver and also doing sand business. Complainant is also doing sand business and owning a lorry. During 2014-2015 accused suffered loss. In the last week of May 2015, he requested the complainant for hand loan of Rs.6,00,000/-. However, complainant was able to lend him only Rs.5,00,000/i.e., on 01.06.2015, complainant withdrew Rs.2,50,000/- and by collecting Rs.50,000/from his friend, complainant lent Rs.3,00,000/- to the accused on 01.06.2015. In the 3^rd week of June 2015 at the request of accused, complainant withdrew Rs.2,00,000/- on 22.06.2015 from his account and paid the same to the accused.

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3.1 Accused assured complainant that he will repay

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the first loan within one month and second loan within 15 days. However, after expiry of the said time, when complainant requested and demanded accused to return the money, he avoided and ultimately issued 2 cheques

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dated 08.07.2015 for Rs.3,00,000/- and Rs.2,00,000/with an assurance of encashment. However, when complainant presented them for realization, they were returned dishonoured for "funds insufficient". Complainant got issued legal notice dated 04.08.2015. It is served on the accused on 12.08.2015. Despite the same, accused has neither paid the amount due nor sent any reply and hence, the complaint.

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After due service of summons, accused

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appeared before the trial Court and resisted the complaint by pleading not guilty.

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In support of his case, complainant got himself examined as PW-1 and one witness as PW-2 and got marked Exs.P1 to 13.

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During the course of his statement under

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

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Accused has also led defence evidence by

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examining himself as DW-1 and got marked Exs.D1 to 3.

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At the first instance, vide judgment and order dated 06.10.2016, though the trial Court convicted the accused, it sentenced him to pay fine of Rs.5,000/- and awarded compensation in a sum of Rs.25,000/- with interest at 6% p.a.

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Aggrieved by the same, the complainant approached Sessions Court in Crl.A.No.1340/2016. It was allowed and the case was remanded to the trial Court for fresh disposal in accordance with law.

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After remand, the trial Court convicted the accused and sentenced him to pay fine with default sentence of imprisonment. Accused challenged the same before the Sessions Court in Crl.A.no.468/2019, which came to be dismissed, thereby confirming the judgment and order of the trial Court.

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NC: 2025:KHC:13546 CRL.RP No. 954 of 2022

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Aggrieved by the concurrent findings, accused has filed this petition contending that the impugned judgment and order of trial court as well as Sessions Court are not only erroneous, illegal, but an outcome of non application of mind and are liable to be set aside. Accused had availed hand loan of Rs.25,000/from the complainant during 2011 for admission of his children to school. At that time, he had given blank signed cheques. Though he repaid the said amount with interest, accused failed to return the cheques. Misusing the same, complainant has filed the complaint. Legal notice was not sent to the address of the accused and as such it is not served on him.

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11.1 After the remand to improve his case, the complainant has examined PW-2. The evidence of PWs-1 and 2 are contradict each other. Accused was working as a driver and he was never in need of huge amount of Rs.5,00,000/-. The trial Court and Sessions Court have not appreciated the evidence in proper perspective. The

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complainant has failed to prove his financial capacity to lend such huge sum. 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 for complainant supported the impugned judgment and order passed by the trial Court as well as the Sessions Court and

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sought for dismissal of the petition.

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In support of his argument, learned counsel has relied upon the decision in Rajesh Jain Vs. Ajay Singh ( Rajesh Jain )¹

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Heard arguments of both sides and perused the record.

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Thus, complainant has prosecuted the accused on the allegations that he borrowed a sum of Rs.5,00,000/- from him by way of hand loan, and the 1 (2023) 10 SCC 148 : AIR Online 2023 SC 807

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cheques issued towards repayment of the same are dishonored for want of sufficient funds. Accused admit that the cheques in question are drawn on his account and they bear his signature. However, he has disputed that he borrowed Rs.5,00,000/- from the accused and issued the subject cheques towards the payment of the same. On the other hand, he has contended that during 2011, he had borrowed a sum of Rs.25,000/- for the purpose of paying fees of children and even though he has repaid the said amount with interest complainant failed to return the

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blank cheques and misusing the same he has filed this complaint. He has also disputed that the legal notice is served on him. On the other hand, he has claimed that when the legal notice was sent, he was not staying in the address to which it is sent. He has also disputed the financial capacity of the complainant to lend him Rs.5,00,000/-.

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Having regard to the fact that the cheques are

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drawn on the account of the accused maintained with his

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banker and they bear his signature, presumption and Section 139 of the N.I Act comes to play, placing the initial burden on the accused to establish that the cheques were not issued towards repayment of any legally recoverable debt or liability and on the other hand, the circumstances in which they have reached the hands of accused. Only after he is able to rebut the presumption, the burden shifts on the complainant to prove his case, including his financial capacity.

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At the outset, it is necessary to examine

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whether legal notice is served on the accused. It is pertinent to note that the legal notice is sent to the same address of the accused as specified in the complaint. In fact, the summons is served on the accused to the same address. The order passed by the trial Court indicate that on 30.10.2015, summons was issued to the accused returnable by 13.11.2015. The order sheet dated 13.11.2015 states that summons served on the accused through RPAD and acknowledgement is received. Since on

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that day, accused failed to appear before the Court, a Non-bailable warrant was issued returnable by 11.12.2015. Before the warrant could be executed, on 11.12.2015 accused voluntarily appeared before the Court and secured bail.

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17.1 Only in Crl.A.No.468/19 and present petition

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filed by him, the accused has given his address as a resident of Kanuvanahalli, Soladevanahalli Post, Nelamangala. In fact, the legal notice sent to the accused to the address given in the complaint is served as per the acknowledgement at Ex.P7. The legal notice is not returned on the ground that the address is not residing in the said address. The acknowledgement bears the LTM of Bettamma. During his cross-examination, the accused has stated that Bettamma is his grandmother. Complainant has relied upon Exs.P11 and 13 to show that the address given therein is that of the father-in-law the accused and

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he was staying in the house of his father-in-law in the address to which the legal notice was sent and it is

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received by his grandmother. The accused has relied upon Exs.D1 and D2 which are Aadhar card of accused and rent

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agreement. In Ex.D1, his address is given as Kanuvanahalli whereas in Ex.D2, the address of the property lent is given as Guddemaranahalli, Magadi. Except these two documents, the accused has not produced any other documents such as rent receipt or any postal correspondence to show that when the legal notice was sent, he was residing in these addresses.

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17.2 Moreover, under Section 27 of the General Clauses Act, when any Central Act or Regulation made after the commencement of the General Clauses Act, authorizes or requires any document to be served by post, whether the expression service or either of the expressions give or send, or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing

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the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of the post.

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17.3 In the light of the presumption under Section 27 of the General Clauses Act, the burden is on the accused to prove that the notice is not served on him. Accused could have examined the postman to rebut the presumption that there is due service of notice. Thus the complainant has proved that there is due service of legal notice. Admittedly, the accused has not sent any reply to the legal notice coming up with a specific defence at the earliest available opportunity.

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In order to rebut the presumption under Section 139 of the N.I. Act, the accused has taken a defence that during 2011, he had borrowed a sum of Rs.25,000/- from the complainant and had issued 2 signed blank cheques by way of security and even though he repaid the said loan

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with interest, accused did not return the cheques and has misused them to file this complaint. During the crossexamination of PW-1 a suggestion is made to complainant that accused had borrowed Rs.25,000/- in 2010. In support of this defence, the accused has relied upon Ex.D3 which is copy of application dated 03.08.2016 given under Karnataka Right to Education Act. In this document, the date of birth of the child is given as 10.11.2011. If the child was admitted to the school as per Ex.D3 in 2016, how can it be accepted that he had borrowed loan of Rs.25,000/- in 2010 or 2011 for admitting the child to school in the year 2016. He has not produced any documents such as fees receipt, etc to show that during 2011, he borrowed Rs.25,000/- and spent the same for admission of his child to the school in 2016. This Court has no hesitation to hold that accused has taken up a false defence and has failed to prove the same.

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However, even if it is accepted that the cheques were issued by the accused as a security for the loan of

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Rs.25,000/- taken in 2010 or 2011 and that he had repaid the same, there was no impediment for the accused to take back the cheques. Even where it is accepted that, complainant had intentionally not returned the cheques, there was no impediment for the accused to instruct the bank to stop payment, specifying the reasons. The accused has not availed this option.

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At the same time, the accused has also challenged the financial capacity of complainant to lend him Rs.5,00,000/-. In order to discharge this burden, the complainant has produced his account extracts at Exs.P8 and 9, according to which he has withdrawn Rs.2.5 lakhs on 01.06.2015 and Rs.2 lakhs on 22.06.2015. Complainant has specifically claimed that he borrowed remaining Rs.50,000/from his friend i.e., PW-2, Gangaraju and paid in all Rs.5,00,000/- to the accused. PW-2 has deposed to this effect. Despite lengthy cross-

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examination of PWs-1 and 2, the accused has failed to convince the Court that the evidence of PWs-1 and 2 is not reliable.

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While the accused has failed to rebut the presumption through oral and documentary evidence on record, the complainant has proved that accused had borrowed Rs.5,00,000/- and the cheques were issued towards repayment of the said loan. Appreciating the oral and documentary evidence placed on record, the trial Court as well as the Session Court have come to a correct conclusion and accepted the case of the complainant and rejected the defence of the accused. The conclusions arrived at and findings given by them are consistent with the evidence on record and this Court finds no perversity calling for interference. In the result, the petition fails and accordingly the following:

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ORDER

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Petition filed by the accused under

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Section 397 r/w 401 Cr.P.C is hereby dismissed.

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The impugned judgment and order dated

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28.01.2019 in CC.No.21197/2015 on the

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file of XXII ACMM, Bengaluru and judgment and order dated 07.06.2022 in Crl.A.No.468/2019 on the file of LXIX Addl.City Civil and Sessions Judge (CCH70), Bengaluru, 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 List No.: 1 Sl No.: 52

Sri. Jagadish. K. C. v. Sri. Harish

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Sri. Jagadish. K. C. v. Sri. Harish

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