J T Rangegowda Vs D K Nagaraju

THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.PC (FILED U/S 438 R/W 442 BNNS) PRAYING TO SET ASIDE THE JUDGMENTS DATED 05.10.2024 PASSED BY THE III ADDL. DISTRICT AND SESSION JUDGE, HASSAN IN CRL.A. NO.119/2024 AND IN CC NO.1153/2016 DATED 01.04.2024 PASSED BY II ADDL. CIVIL JUDGE AND JMFC AT HASSAN AND ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT 1881.

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NC: 2026:KHC:34034 CRL.RP No. 1422 of 2024

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THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER

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This matter is listed for admission. I have heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent.

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This revision petition is filed against the concurrent finding of the Trial Court and the First Appellate Court in Criminal Appeal No.119/2024.

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The factual matrix of case of the complainant before the Trial Court is that complainant and accused are well acquainted with each other and the accused had borrowed a loan of Rs.7,00,000/- from the complainant for his family exigencies and for his business and the accused has issued a Cheque dated 10.10.2015 for an amount of Rs.7,00,000/- and assured that the said Cheque would be honoured. When the Cheque was presented on 27.11.2015, the same was returned with an endorsement ‘funds insufficient’. The accused also stated in the complaint that he has issued a notice to the

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accused on 10.12.2015 through RPAD to two addresses of the accused calling upon him to repay the Cheque amount and the said notice returned with postal endorsement stating that ‘accused refused, absent, not found’ and the accused has intentionally avoided service of notice. Inspite of the same, accused has not paid the said amount and thereby, the accused has committed the offence under Section 138 of N.I. Act. Based on the complaint, cognizance was taken and accused was secured and he did not plead guilty, claims for trial. Hence, the complainant examined himself as P.W.1 and got marked the documents as Exs.P1 to P15. The accused was also subjected to cross-examination and after closure of evidence, accused was subjected to 313 statement and accused was also examined as D.W.1 and oral evidence of accused was recorded and he did not mark any documents.

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The Trial Court considering both oral and documentary evidence, particularly in paragraph No.36 taken note of the defence of D.W.1, wherein he says that there was business transaction between him and accused and he had purchased food articles on credit basis to the extent of

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Rs.50,000/- and also repaid the same. But, in the crossexamination, he says that he has borrowed an amount of Rs.50,000/-. Hence, Cheque was given as security and contra defence which was taken was taken note of by the Trial Court since, the accused admitted the Cheque and signature in the Cheque. The Trial Court also comes to the conclusion that the evidence of the complainant is not rebutted under Section 139 of N.I. Act. It is also the case of complainant that amount of Rs.7,00,000/- was paid in the presence of one Yogisha and he has also been examined as P.W.2. In the cross-examination, when suggestion was made to D.W.1, he did not deny the same that amount was paid in the presence of Yogisha. But, only says that he is not aware of the same and all these factors were taken note of by the Trial Court and convicted the accused in coming to the conclusion that evidence of the complainant is not rebutted and instead of rebutting the same, contra defence was taken. Since, the Cheque and signature in the Cheque is admitted and no rebuttal evidence, the Trial Court convicted and sentenced the accused.

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The same is challenged before the First Appellate Court in Criminal Appeal No.119/2024. The First Appellate Court also having considered both oral and documentary evidence available on record, taken note that it was a loan transaction and not in respect of repayment of Rs.50,000/towards the articles which were purchased by the accused and also taken note of chief-evidence as well as the answers given by D.W.1 in the cross- examination, wherein at one breath, he says that he had repaid the amount of Rs.50,000/- in respect of the articles which were purchased from the complainant. Again, he says that he is ready to pay the amount of Rs.50,000/- and so also he had availed the loan of Rs.50,000 and Cheque was given as security. But, not stated anything about payment of Rs.50,000/- and the same was also re-appreciated by the First Appellate Court and particularly in paragraph No.20, the First Appellate Court comes to the conclusion that to rebut the presumption on the strength of preponderance of probabilities, no dispute with regard to issuance of Cheque and also the signature and specific defence of the appellant is that Cheque was handed over as a blank cheque for security purpose for having purchased poultry feeds from the respondent-

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complainant and it is also the defence that he has repaid that amount, but not placed any document for having repaid the amount. The First Appellate Court also taken note that in 313 statement of the accused, the accused totally denied the case of complainant and nothing is stated with regard to his defence is concerned. Hence, the First Appellate Court confirmed the order of the Trial Court. Therefore, the present revision petition is filed before this Court against the concurrent finding.

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Learned counsel appearing for the petitioner would vehemently contend with regard to advancement of loan, place and the date on which the loan was advanced was not stated. The cause for approaching the complainant for amount is not stated either in the complaint or in the legal notice. The counsel also would vehemently contend that in the absence of specific averment in the complaint and also in the evidence, question of considering the same does not arise. The counsel appearing for the petitioner also submits that notice issued to the accused is also not served and the same returned with an endorsement that intimated is delivered, absent and P.W.1 also admits that the same was not served.

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Learned counsel appearing for the petitioner in support of his argument relied upon judgment of the Apex Court in JOHN K. ABRAHAM vs. SIMON C. ABRAHAM AND ANOTHER reported in (2014) 2 SCC 236 and brought to notice of this Court paragraph No.6 and also the reasoning in paragraph Nos.10 and 11 and contend that the very case of the complainant is doubtful with regard to the transaction is concerned and for having advanced the amount of Rs.1,50,000/-, nothing is placed on record. The counsel also vehemently contend that both the Trial Court and the First Appellate Court taken note of the weakness of the accused regarding answers given in the chief evidence and also the cross-examination of D.W.1 and it is the duty cast upon the complainant to prove his case and then only burden shifts upon the accused and accused also rebutted the case of the complainant by examining himself as D.W.1 that no transaction between them. Hence, it requires interference of this Court by exercising power of revision.

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Per contra, learned counsel appearing for the respondent in his argument would vehemently contend that the

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accused not disputes the address mentioned in the notice and also answer elicited from the mouth of D.W.1 that address mentioned in the legal notice is correct. The counsel also brought to notice of this Court un-served postal cover-Ex.P5 which shows that on 11.12.2015 intimation was delivered to the accused when the postman visited the house. But, on subsequent dates, he was absent and intentionally, he evaded service. The counsel also brought to notice of this Court admissions of accused with regard to address is concerned, wherein he categorically admits that when notice is sent, the same will be issued to his mother’s address and his father’s name is Thimmegowda and he is no more and if any notice is addressed to the said address, the same will be served. The counsel would submit that this admission is very clear that address is correct and now, the petitioner cannot contend that notice was not served.

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The counsel also would vehemently contend that in the cross-examination of P.W.1, nothing is elicited with regard to the transaction is concerned and brought to notice of this Court that in the chief-evidence, D.W.1 says that complainant

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is having a business and he used to purchase poultry feeding material on credit basis for Rs.50,000/- to Rs.1,00,000/- and he says that the complainant used to collect Cheque as security and after making payment, he used to recollect the said Cheque. In his evidence, he also says that he had purchased poultry feeding material to the extent of Rs.50,000/-. Hence, he had given Cheque and he has repaid the said amount. But, when he demanded to handover the Cheque, the same was not returned, he said that Cheque will be given in the Court and matter will be decided in the Court. But, again counsel says that even though he gave such evidence, in the chief-evidence itself, he says that he is liable to pay an amount of Rs.50,000/-

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in respect of the transaction and he is ready to pay the same. But, in the cross-examination, he categorically admits the loan transaction between him and the accused and only claims that it was to the tune of Rs.50,000/- and also specific suggestion was made to the accused that amount of Rs.7,00,000/- was paid in the presence of P.W.2 and accused did not deny the same. But, only says that when the amount was paid in the presence of the witness P.W.2-Yogisha, he says that he do not know. When the suggestion was made that Ex.P1-Cheque was

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given in respect of the said transaction and the same was denied and admits the Cheque and his signature on the Cheque and suggestion was made that when notice was given to him, the same was refused and now he is deposing before the Court that he has not received the notice and the said suggestion was denied.

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Having heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent, the complainant in the complaint specifically stated that both the accused and complainant are known to each other and they are having acquaintance with each other and accused has requested the complainant to lend a sum of Rs.7,00,000/- in order to satisfy his household exigencies and for business purpose. Hence, the complainant has paid the amount of Rs.7,00,000/-. On account of discharge of his liability towards complainant, the accused has issued a Cheque dated 10.10.2015. Therefore, the averment of complaint is very specific that when the accused had approached the complainant, he lent an amount of Rs.7,00,000/- and Cheque was issued on 10.10.2015. No doubt, learned counsel

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appearing for the petitioner would vehemently contend that place of payment of amount and also particular date is not stated, but complainant has stated that when the amount was lent to the accused, in turn, he has issued a Cheque dated 10.10.2015. The counsel appearing for the revision petitioner also brought to notice of this Court judgment of the Apex Court in John K. Abraham’s case referred supra and brought to notice of this Court discussion made in paragraph Nos.10 and 11. Having considered the principles laid down in the judgment supra and also the present case of complainant, when the complainant specifically stated that amount was lent to the accused to the tune of Rs.7,00,000/- and in turn, the accused had issued a Cheque dated 10.10.2015 and though not specifically stated the place of payment and particular date, but the very averment made in the complaint is very specific that on advancing the amount, the accused had issued the Cheque and issuance of Cheque is not disputed and signature is also not disputed. When such being the case, the presumption is in favour of the complainant under Section 118 and no doubt, the presumption under Section 139 of N.I. Act is also rebuttable

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presumption, the Court has to see whether that rebuttable presumption is in favour of the accused.

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Having taken note of evidence of P.W.1 with regard to advancing of the amount and issuance of the Cheque, nothing is elicited from the mouth of P.W.1 and once the issuance of Cheque and signature is admitted, the Court has to only take note of the defence. Before considering the evidence of defence, the complainant also examined one witness as P.W.2. He categorically deposed before the Court that in his presence itself amount of Rs.7,00,000/- was paid. When the suggestion was made to the accused that amount of Rs.7,00,000/- was lent to the accused in the presence of witness Yogisha, the accused not specifically denied the same. But, he says that he do not know about the same and the same is not a specific denial as to advancing the loan of Rs.7,00,000/- in the presence of P.W.2. Apart from that, the Court has to take note of contrary evidence, wherein the accused at one breath says that Cheque was given towards liability for having purchased poultry feeding material. But, again he says that he has repaid that amount. But with regard

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to repaying the amount also not placed any document before the Trial Court. Apart from that, again he says that he is liable to pay an amount of Rs.50,000/- towards the material which he had purchased. But, in the cross-examination he categorically admits that he has taken the amount of Rs.50,000/- from the complainant and to that effect, he has given the Cheque as security and the very defence is contrary to each other. But, admission is very clear that Cheque was given towards loan transaction and his claim is that he had only availed Rs.50,000/- and in order to substantiate the same, nothing is placed on record. Hence, the very contention of learned counsel appearing for the petitioner cannot be accepted and the petitioner cannot blow hot and cold saying that he had issued the Cheque towards poultry feeding material which he had purchased and thereafter, turn around and say that he had availed the amount of Rs.50,000/- and hence, gave the Cheque.

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Apart from that, when the suggestion was made that an amount of Rs.7,00,000/- was paid in the presence of P.W.2, who has been examined before the Court, he says that

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he do not know regarding payment of amount of Rs.7,00,000 in the presence of P.W.2 and not specifically denied the same. Under the circumstances, I do not find any error on the part of the Trial Court in coming to the conclusion that the order suffers from its legality and correctness. Hence, the very contention of learned counsel for the petitioner cannot be accepted and the principles laid down in the judgment referred supra by the learned counsel for the revision petitioner will not come to the aid of the petitioner in view of admission on the part of D.W.1 with regard to the transaction and issuance of Cheque.

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The other contention of learned counsel appearing

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to the petitioner is that no notice was served and the fact that the address to which the notice was sent is not disputed and he categorically admits that when the notice was issued to the particular address the same will be served on him. But, endorsement on the document of Ex.P5 i.e., un-served postal cover is very clear that intimation was delivered to the accused when the postman had visited the house of the accused and later on, he was absent on subsequent dates when the notice

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was issued to the particular correct address and the address was not disputed and the same is admitted by the accused. This Court in the several judgments has held that under Section 27 of the General Clauses Act, if the address is not disputed, it amounts to service and there is a presumption that amounts to service and the same is not disputed. When such admission is given with regard to the address is concerned and address is not disputed by the accused and the same is admitted in the cross examination of D.W.1, on that ground also, the revision petitioner fails. Hence, no merit in the revision petition to admit the same.

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Accordingly, the revision petition is dismissed.

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Sd/(H.P.SANDESH) JUDGE

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ST List No.: 1 Sl No.: 25

J T Rangegowda v. D K Nagaraju

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J T Rangegowda v. D K Nagaraju

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