The High Court
Case Details
- 1 - NC: 2025:KHC:14744 CRL.RP No. 557 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MS JUSTICE J.M.KHAZI CRIMINAL REVISION PETITION NO. 557 OF 2017 BETWEEN: SRI GANESH SHETTI S/O LATE H.D.SHETTI AGED ABOUT 47 YEARS R/AT NO.7/43, 2ND FLOOR 2ND CROSS, VENKATESHWARA LAYOUT J P NAGAR 8TH PHASE BANGALORE-560076 (BY SMT.CHANNAMMA S, ADVOCATE A/W SMT.NANDINI.C.G, ADVOCATE) AND: …PETITIONER Digitally signed by REKHA R Location: High Court of Karnataka SRI RAJAN CHAUDHARY S/O LATE D.R CHAUDHARY AGED ABOUT 47 YEARS R/AT FLAT NO.G5, KALPATHARU PARAMOUNT 23RD 'A' CROSS, 4TH MAIN HSR LAYOUT 7TH SECTOR BANGALORE-560068 (BY SRI. KESHAV KUMAR B, ADVOCATE) …RESPONDENT THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE AN IN ORDER CONVICTION 12.04.2017 DATED OF - 2 - NC: 2025:KHC:14744 CRL.RP No. 557 of 2017 CRL.A.NO.648/2016 ON THE FILE OF LX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY (CCH-61) AND SET ASIDE ORDER PASSED BY THE XIX ADDL.C.M.M., BANGALORE IN C.C.NO.21662/2012 AND PASS AN ORDER OF ACQUITTAL BY ALLOWING THIS RP. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI ORAL ORDER In this petition filed under Section 397 r/w 401
Legal Reasoning
Cr.P.C accused has challenged his conviction and sentence for the offence punishable under Section 138 of the N.I Act imposed by the trial Court, which came to be confirmed by the Sessions Court, by dismissing the appeal filed by him. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. Complainant is filed by the complaint alleging that accused is the owner of Flat No.G5, Kalpataru, Paramount Apartments, Bengaluru-560068. Complainant and accused entered into lease agreement dated 25.02.2010, by which the said apartment was leased in - 3 - NC: 2025:KHC:14744 CRL.RP No. 557 of 2017 favour of the complainant for a sum of ₹5 lakhs towards security deposit. Complainant paid the said amount through cheques. Accordingly, complainant was putting possession of the said apartment. However, to the utter shock and dismay, during the month of May the complainant came to know that accused has taken home loan from Canfin home loans and became defaulter. Therefore, the bank has initiated proceedings under Secutarisation Act and issued notice over possession of the property. 3.1 After coming to know about it, complainant issued termination notice to the accused and after much persuasion and on follow-up accused issued cheque dated 22.05.2012 for ₹5 lakhs with an assurance that on presentation, it would be realised. However, when the complainant presented the cheque through his bank, it was returned dishonoured as payment was stopped by the drawer. After the dishonour of the cheque, accused started evading the complainant. Without any alternative, - 4 - NC: 2025:KHC:14744 CRL.RP No. 557 of 2017 complainant got issued legal notice dated 20.07.2012 through RPAD to the three (3) addresses of the accused i.e, to his residential address, office address and permanent address. The notice is duly served. However, the accused failed to either comply with the notice or send any reply and hence, the complaint. 4. After due service of summons, the accused appeared through counsel and contested the case. He pleaded not guilty and claimed trial. 5. In order to prove the allegations against the accused, complainant examined himself as PW-1 and got marked Exs.P1 to 8. 6. During the course of his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the complainant. 7. He has also given evidence as DW-1 and relied upon Exs.D1 to 3. - 5 - NC: 2025:KHC:14744 CRL.RP No. 557 of 2017 8. The trial court convicted the accused and sentenced him to pay fine of ₹6 lakhs with default sentence of imprisonment. 9. Accused challenged the same before the Sessions Court, it came to be dismissed by confirming the judgment and order passed by the trial Court. 10. Aggrieved by the same, the accused is before this Court contending that offence under Section 138 of N.I Act is a technical offence, but the complainant has failed to prove the allegation against accused beyond reasonable doubt by complying all the mandatory requirements. In the present case, the legal notice is not served on the accused. The complainant has not examined the postman to prove the service of notice. There was an agreement of sale between the complainant and accused. However, the complainant was not ready and willing to perform his part of the contract and as such the advance is forfeited. Therefore, the complainant is not having any claim over the cheque. The evidence disclose that - 6 - NC: 2025:KHC:14744 CRL.RP No. 557 of 2017 complainant had delivered possession of the flat on 28.12.2012 and as such as on the date of the cheque, there was no legally enforceable debt payable by the accused to the complainant. The trial Court has not considered the decisions relied upon by the accused in support of his defence. Viewed from any angle, the impugned judgment and order of the trial Court and Sessions Court are not sustainable and hence the petition. 11. In support of the petition accused has relied upon the following decisions: 1) M/s Swastik Coaters Pvt. Ltd Vs. M/s Deepak Brothers and Anr.(Swastik Coaters)1 2) Shanku Concretes Private Ltd & Ors. Vs. State of Gujarat & Anr. (Shanku Concretes)2 3) Supply House Vs. Ullas (Ullas)3 4) 5) Indus Airways Private Ltd. & Ors Vs. Magnum Aviation Private Ltd and Anr. (Indus Airways)4 Sampelly Satyanarayana Rao Vs. Indian Renewable Ltd.(Sampelly Satyanarayana Rao)5 Energy Development Agency 1 1996 SCC Online AP 1003 : 1997 Crl.LJ 1942 2 1999 SCC Online Guj 366: 2000 Crl.LJ 1988 3 2006 SCC Online Ker 533 : 2006 Crl.LJ 4330 4 (2014) 12 SCC 539 - 7 - NC: 2025:KHC:14744 CRL.RP No. 557 of 2017 12. It is pertinent to note that on 17.10.2019, there was no representation for the accused. After hearing the learned counsel for complainant, the petition came to be dismissed on merits. Accused challenged the same before the Hon'ble Supreme Court in SLP (Crl) No.13366/2021. The Hon'ble Supreme Court was pleased to set aside the order dated 17.10.2019 and remanded the case for fresh disposal after providing opportunity to both parties. 13. After the remand, heard learned counsel for complainant, who argued in terms of the grounds urged in the petition. 14. On the other hand, learned counsel appearing for complainant submitted that when the complainant took the flat on lease, he paid ₹5 lakhs, which was returnable On the termination of the lease Period of three years. However, the Canara Bank with which he had borrowed home loan, initiated proceedings under the Securitisation Act and attached the property and recovered possession
Decision
ORDER 1. Petition filed by the accused under Section 397 r/w 401 Cr.P.C is hereby dismissed. 2. The impugned judgment and order dated 05.05.2016 in CC.No.21662/2012 on the file of XIX ACMM, Bengaluru and judgment and order dated 12.04.2017 in Crl.A.No.648/2016 on the file of LX Addl.City Civil and Sessions Judge, Bengaluru are confirmed. 3. The Registry is directed to return the trial Court as well as Sessions Court records along with a copy of this order forthwith. Sd/- (J.M.KHAZI) JUDGE RR List No.: 1 Sl No.: 56