The High Court
Case Details
- 1 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 1123 OF 2022 BETWEEN: 1. MR. KIRAN FRUIT SELLER R/AT NEAR BUS STAND ”K.K. STORES”, FRUIT SELLER HEBRI VILLAGE, KARKALA TALUK, UDUPI DISTRICT. ACTUAL ADDRESS: MR. KIRAN AGED ABOUT 32 YEARS S/O LATE LAXMAN NAYAK PERMANENT RESIDENT OF GHANDI NAGAR, CHARA VILLAGE AND POST-576212, HEBRI TALUK (PREVIOUSLY KARKALA TALUK), UDUPI DISTRICT. (BY SRI. CHANDRANATH ARIGA K., ADVOCATE) …PETITIONER Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA AND: 1. MRS. VISHALAKSHI S. HEGADE AGED ABOUT 62 YEARS, W/O SRI. SHASHIDAR HEGDE R/AT MADANAKKI KUNDAPURA TALUK UDUPI DISTRICT-576212. (RESPONDENT IS SERVED AND UNREPRESENTED) …RESPONDENT - 2 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE IN C.C.NO.782/2015 DATED 02.05.2019 PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC KARKALA AND THE IN CRL.A.NO.106/2019 DATED JUDGMENT AND ORDER 29.12.2021 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI. JUDGMENT THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
Legal Reasoning
Xerox copy of Aadhaar card, election ID. Having considered the same, the First Appellate Court comes to the conclusion that the Trial Court by properly appreciating the evidence, particularly considering the documents of Exs.P3 and P5 and - 7 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 also considering the presumption, confirmed the order of the Trial Court holding that proper service was made. 7. The main contention of the counsel for the petitioner before this Court that there is no proper service of legal notice and the same is not in compliance with Section 138 of NI Act. Unless, the notice has been served, the question of invoking Section 138 of NI Act does not arise and there cannot be any presumption in respect of service of legal notice is concerned. Hence, it requires interference of this Court. 8. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, the points that would arise for consideration of this Court are: 1. Whether the Trial Court committed an error in coming to the conclusion that service of notice was proper invoking of Section 27 of General Clause Act, 1897 and Section 114 of Indian Evidence Act which raises a presumption that demand notice has reached the destination, unless the contrary is - 8 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 proved by the accused and the said order suffers from its legality and correctness? 2. What order? Point No.1: 9. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record it discloses that the petitioner has not disputes the fact of issuance of cheque which is marked at Ex.P1 and also not led any defence evidence before the Trial Court even though PW1 was cross-examined and when opportunity was given, the same was not utilised by the petitioner. The only contention of the petitioner that there cannot be any presumption and the said contention cannot be accepted. The Trial Court also referring the judgment of the Apex Court in the case INDO AUTOMOBILES referred supra, held that once notice has been sent by registered post with acknowledgment due to a correct address, it must be presumed that service has been made effective. The very contention of the petitioner that the same cannot be presumed cannot be accepted. The Apex Court also in the judgment referred supra, it is held that if the notice is - 9 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 sent to the correct address, it must be presumed that service has been made effective. In the cross-examination of PW1, she did not deny that address. It is a fact that the prosecution is doing the business in the very same address which is mentioned in Ex.P3 and P5 and notice has been served on him on the very same address. It is not his case that he was not residing in the said address at the time of issuance of notice and nothing is suggested with regard to the address where he is residing at the time of issuance of notice. The Trial Court also taken note of the statement recorded under Section 313 of Cr.P.C wherein also the petitioner has not explained any incriminating circumstances in his 313 statement and also not led any defence evidence. The Trial Court also taken note of the fact that when notice was sent, the same was returned with an endorsement ‘addressee left without instruction, returned to sender’. The meaning of the said endorsement is not that he was not residing in the said address that means he left without instructions and hence, the notice was returned to the sender and hence, the Trial Court invoked Section 27 of the General Clause Act, 1897 and Section 114 of Indian Evidence Act which raises a presumption that demand notice has reached the - 10 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 destination, unless the contrary is proved by the accused. In the case on hand, contrary has not been proved by the petitioner stating that he was not residing in the address which contains in Ex.P3 and P5. When such material are considered by the Trial Court and reasoned order has been passed relying upon the judgment of the Apex Court referred supra, the very contention of the counsel for the petitioner that notice has not been served cannot be accepted. The very contention of the petitioner that in the absence of service of notice, cannot invoke Section 138 of NI Act cannot be accepted. The Trial Court passed the reasoned order and even the First Appellate Court also in detail re-appreciated the material on record and thereafter comes to the conclusion that even accused also not placed any material before the Trial Court to prove that the address mentioned at Ex.P5 was not his address. But the fact that loan also availed for the fruit business and address given in Ex.P5 as well as in the notice sent to him in terms of Ex.P3 are in respect of his business address and the purpose of availing loan is also for business purpose. When such material available on record, I do not find any force in the contention of the petitioner’s counsel to comes to a other conclusion that - 11 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 order of both the Courts suffer from its legality and correctness. Thus, there is no merit in the revision petition. Accordingly, the above point is answered as negative. Point No.2: 10. In view of discussions made above, I pass the following:
Arguments
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard learned counsel for the petitioner and respondent is served and unrepresented, inspite of service of notice. 2. This revision petition is filed challenging the order of conviction and sentence passed in C.C.No.782/2015 for the offence punishable under Section 138 of N.I. Act and also confirmation order passed by the First Appellate Court in Crl.A.No.106/2019. 3. The factual matrix of the case of the complainant before the Trial Court is that complainant and the accused are well known to each other. Considering the said acquaintance, the accused approached the complainant for financial assistance and borrowed a sum of Rs.2,00,000/- as hand loan for his business purpose. The accused in repayment of the - 3 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 borrowed amount, issued a Cheque dated 04.05.2015 and though he had promised to honour the Cheque, when the same was presented, it was dishonoured with an endorsement ‘funds insufficient’. Immediately, she had sent legal notice and legal notice returned with an endorsement ‘left without instruction- returned to sender’. Thereafter, the complainant filed the complaint and the Trial Court taken cognizance and secured the accused and on securing the accused, he did not plead guilty. 4. The complainant examined herself as P.W.1 and got marked the documents as Exs.P1 to P25. On the other hand, the accused did not choose to lead any defence evidence, but he was examined under Section 313 Cr.P.C. The Trial Court having considered the material on record, particularly the evidence of P.W.1, since P.W.1 was cross-examined with regard to the fact that address is not correct, nothing is elicited from the mouth of P.W.1. The Trial Court also taken note of Ex.P5- returned postal envelope, wherein endorsement is made that ‘left without instruction, returned to sender’. The Trial Court also in paragraph No.15, taken note of factual aspects and also answer elicited from the mouth of P.W.1 and also comes to the conclusion in paragraph No.16 that in 313 statement, accused - 4 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 has not stated anything about his correct address and at the time of issuance of demand notice, where he actually resides. Hence, the Trial Court comes to the conclusion that though the accused took time to lead defence evidence, inspite of sufficient opportunity, he did not choose to adduce oral or documentary evidence to rebut the evidence of P.W.1-complainant. The Trial Court also taken note of the fact that very endorsement goes to show that the accused was residing in the said address for some time. In view of Section 27 of the General Clause Act, 1897 and Section 114 of Indian Evidence Act which raises a presumption that the demand notice has reached the destination, unless the contrary is proved by the accused. On perusal of testimony of P.W.1, wherein the learned counsel for the accused has not made any suggestion where the accused actually resides and from what date he has been residing and noting is put to the witness P.W.1. 5. The Trial Court also taken note of the judgment of the Apex Court in INDO AUTOMOBILES VS. JAI DURGA ENTERPRISES AND OTHERS reported in (2008) 8 SCC 529, wherein the Apex Court has observed that once notice has been sent by registered post with acknowledgement due to a correct - 5 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 address, it must be presumed that the service has been made effective and also considering the principles laid down in the judgment of the Apex Court, the Trial Court comes to the conclusion that accused has not properly explained that at the time of issuance of demand notice where he actually resides at Bangalore. It is settled law that the presumptions are rebuttal in nature and it is for the accused to rebut the presumption by placing direct or circumstantial evidence. But, he has not done the same. The Trial Court considering the principles laid down in the judgment of the Apex Court and evidence on record i.e., P.W.1, taken note of the fact that nothing is suggested to him that he was residing at the place where he was at the time of issuance of notice or he was residing in some other place. Hence, the Trial Court comes to the conclusion that notice was sent to the correct address considering the General Clause Act, 1897 and convicted the accused. The same is confirmed by the First Appellate Court on re-appreciation of both oral and documentary evidence placed on record. 6. The First Appellate Court in paragraph No.21 taken note of the fact that in the complaint, address of the accused is noted as residing near Bus Stand, K.K. Store, Fruit Seller, Hebri - 6 - NC: 2025:KHC:7937 CRL.RP No. 1123 of 2022 Village, Karkala Taluk. In the legal notice and postal cover marked at Exs.P3 and P5, address of the accused is noted as Fruit Setter, residing near Bus Stand, Hebri Village, Karkala Taluk. The First Appellate Court taken note of the fact that loan was availed for the purpose of his business and also taken note of the endorsement made by the postal authority in paragraph No.32 and having taken note of said fact into consideration, the First Appellate Court comes to the conclusion that there is no explanation on the part of the accused. The First Appellate Court also in paragraph No.34 also observed that in the file either passbook pertaining to the Cheque marked at Ex.P1 which is containing the address of the accused/account holder is not available. There is no explanation on behalf of the accused the reason for non-production of either passbook pertaining to Cheque marked at Ex.P1 or any other documents maintained by the bank containing his address which are better evidence to show his address account holder in addition to
Decision
ORDER The revision petition is dismissed. Sd/- (H.P.SANDESH) JUDGE ST/SN List No.: 1 Sl No.: 47