The High Court
Case Details
- 1 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO.1056 OF 2024 BETWEEN: SRI RAJANNA B S/O SRI BHEEMAIAH, AGED ABOUT 49 YEARS, RESIDING NEAR SHANI MAHATMA TEMPLE, (SRI. RAJA SATYAVRATHA BHAKTI MANDALI), AANE THOTA, TUMKUR CITY - 572101 …PETITIONER Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA (BY SRI R B SADASIVAPPA, ADVOCATE) AND: SRI N RAMAIAH S/O SRI NARASIYAPPA, AGED ABOUT 66 YEARS, RETIRED KEB DRIVER, R/AT “SRI LAKSHMI NARASIMHA SWAMY NILAYA”, 1ST MAIN, 5TH ‘A’ CROSS, HANUMANTHAPURA, TUMKUR CITY-572 133. (BY SRI CHANDRAPPA K N, ADVOCATE) …RESPONDENT THIS CRL.RP IS FILED U/S.397 OF CR.P.C PRAYING TO SET ASIDE THE JUDGEMENT DTD 19.07.2024 PASSED - 2 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 BY THE 7th ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR IN CRL.A.NO.20/2024 AND ETC. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL ORDER This revision petition is filed challenging the judgment dated 19.07.2024 passed in Crl.A.No.20/2024
Legal Reasoning
by the First Appellate Court and the judgment dated 23.02.2024 passed in C.C.No.163/2021 by the Trial Court. 2. This matter is listed for admission. Heard the
Legal Reasoning
learned counsel appearing for the respective parties. 3. The factual matrix of the case of the complainant before the Trial Court that the complainant and the accused were having acquaintance with each other and due to the said relationship, accused approached the complainant for financial assistance of Rs.3,50,000/- in the month of November 2019 for his family necessities. Hence, the complainant having confidence on the accused, - 3 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 paid an amount of Rs.1,20,000/- on 16.11.2019 and Rs.2,30,000/- on 19.12.2019 and in total, the complainant had paid an amount of Rs.3,50,000/- to the accused and the accused agreed to repay the said amount within two months. But accused did not repay the amount and on demand of the complainant, the accused issued a Cheque dated 20.01.2020 for Rs.3,50,000/- and when the said Cheque was presented, same was dishonoured with an endorsement ‘funds insufficient’. It is also the contention of the complainant that immediately after bouncing of Cheque, he got issued the legal notice through RPAD to the address of the accused and the same was returned with an endorsement that ‘addressee is not known’ and specifically stated in the complaint that accused managed with the postal authority but not given any reply. Hence, filed the complaint. 4. The Trial Court taken the cognizance and accused was secured and he did not plead guilty, hence, trial was commenced. In order to prove the case of the - 4 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 complainant, he himself examined as PW1 and got marked the documents at Ex.P1 to P6 and PW1 was cross- examined in length. On the other hand, the accused did not choose to lead any defence evidence. The Trial Court having taken note of the material available on record comes to the conclusion that the complainant has proved his case and same has not been rebutted and there is a presumption under Section 139 of N.I. Act and the said presumption has not been rebutted by leading any cogent evidence and accepted the case of the complainant and convicted the accused for the offence punishable under Section 138 of N.I. Act. Being aggrieved by the said judgment and sentence, the accused preferred an appeal before the First Appellate Court on the ground that no notice was served on him and he was a member of chit fund and in that connection, Cheque was issued. The grounds urged before the First Appellate Court not accepted by the First Appellate Court. Having taken note of the material available on record, the First Appellate Court concurred the finding of the Trial Court. Being - 5 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 aggrieved by the concurrent finding of both the Courts, the present revision petition is filed before this Court by the accused. 5. The main contention of the petitioner/accused before this Court that the Courts below have failed to take note that there is no compliance of legal requirements by the complainant before filing of complaint and hence, the Trial Court ought to have dismissed the same. The counsel also contend that the same is not towards any legal recoverable debt and also failed to take note of the fact that the complainant has not examined any witness particularly the postman when he has made remarks that accused has maneuvered with the postman and notice was returned unserved. It is also contend that the complainant was not having any source of income to make the payment of Rs.3,50,000/- who being a retired KEB driver but absolutely no material is placed before the Trial Court in this regard. It is also contend that the specific defence was taken that accused was running chit business without - 6 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 have any licence and same was also not taken note of by both the Courts and hence, both the Courts have committed an error in appreciating both oral and documentary evidence placed on record and it requires interference of this Court. 6. Per contra, the learned counsel appearing for the respondent/complainant would vehemently contend that both the Courts have not committed any error and accused not disputes the very issuance of Cheque and signatures available on Cheque and only defence was taken that Cheque was given in connection with the chit transaction and to prove the said fact, accused not examined any of the witnesses also though he contend that one of his friend is also a member of the chit fund, he has not been examined and defence has not been proved and hence, not probable defence has been adduced before the Trial Court and there is no any preponderance of probabilities. The counsel also would vehemently contend that notice was sent to the correct address and he did not - 7 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 dispute the said address in which he is residing. The counsel for the respondent also would vehemently contend that in the appeal as well as in this revision petition, the petitioner has filed the petition in respect of the very same address and not shown any other address and now, he cannot contend that the address is not correct. The Trial Court has taken note of general provision of Section 27 of N.I. Act when notice was sent to the correct address and hence, the very contention of the counsel for the petitioner cannot be accepted. The counsel also would vehemently contend that in appeal also the First Appellate Court in detail discussed the material available on record and in paragraphs 23, 24 and 26 in the light of the admission, suggestion made to PW1 that accused is residing in Annaiha Thota and same is taken note of by the First Appellate Court in paragraph 27 of the judgment and hence, the contention of the petitioner counsel that no notice was served cannot be accepted. - 8 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 7. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, the points that would arise for the consideration of this Court are: 1. Whether the Trial Court as well as the First Appellate Court committed an error in not appreciating the material available on record and whether it amounts to perversity in appreciation of evidence as contended by the counsel for the petitioner and whether this Court can exercise the revisional jurisdiction? 2. What order? Point No.1: 8. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, it discloses that the accused had approached the complainant for financial assistance of Rs.3,50,000/- and the complainant having confidence on accused, had paid Rs.1,20,000/- on 16.11.2019 and Rs.2,30,000/- on 19.12.2019 and in total, the complainant - 9 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 had paid an amount of Rs.3,50,000/- on two occasions and the accused agreed to repay the said amount within two months. When the accused failed to repay the amount as agreed, the complainant demanded him to repay the same and hence, the accused had issued the subject matter of Cheque and when the said Cheque was presented, the same was dishonoured with an endorsement ‘funds insufficient’ and hence, the complainant issued legal notice calling upon the accused to repay the loan amount. No doubt, notice was issued on 06.02.2020 and the same was returned with an endorsement that ‘postman visited the house of the accused on 07.02.2020, 08.02.2020, 10.02.2020, 11.02.2020, 12.02.2020, 13.02.2020 and 14.02.2020 but addressee is not known, hence, returned to the sender’. 9. The main contention of the learned counsel of the petitioner that notice is not served on the petitioner. On perusal of the postal endorsement, it is very clear that he visited the accused house on seven days in which the - 10 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 accused is residing. No doubt, though in the cross- examination of PW1, a suggestion was made that the accused was not residing in that address, but the witness has clearly stated that he has the correct address where the accused is residing i.e., Annaiha Thota and also suggestion was made to PW1 that he is residing in his own house and the same was admitted and deposed that he went to the house warming ceremony of the accused and specifically denied the suggestion that knowingly fell the address of the accused, he has given false address. Though it is mentioned that same was returned with an endorsement that ‘door locked’ and endorsement is that the postman had visited the house on seven times but only endorsement is made that addressee is not known and hence, specific contention was taken that accused managed to write such endorsement. It is rightly pointed by the counsel for the respondent that when the postman visited the house of the accused on seven times, inspite of the very same address, not the case that he is not residing in that address and also in the cross-examination of PW1 - 11 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 nothing is suggested to PW1 that he is residing in different address. 10. It is also rightly pointed out by the counsel for the respondent that while filing the appeal as well as present revision petition, the very same address given by the petitioner and hence, the respondent has given correct address in the letter of legal notice and the Trial Court taken of the fact that it is mandatory to issue notice under Section 138(1)(A) of N.I. Act and accordingly, he had complied the mandatory provisions of Section 138(1)(A) of N.I. Act sending the legal notice to the correct address. When such notice is sent to the correct address of the accused, the Trial Court also rightly invoked general provisions of Section 27 of the N.I. Act that notice has been issued to the correct address of the accused and when no other alternative address is suggested to PW1 and very same address is admitted by the petitioner in both the appeal as well as in the revision petition and also categorically mentioned that accused was residing in - 12 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 Annaiha Thota and same is considered by the First Appellate Court while re-appreciating the material available on record. The First Appellate Court also properly considered the material available on record and in paragraph 27 extracted the suggestion made to PW1 during the course of cross-examination and made an observation that from this it is ample clear that accused has constructed a new house and residing there at Annaiha Thota, whereas in the address of accused it is specifically mentioned as Annethota. When the said address is not disputed, now, cannot contend that notice was not served on the petitioner and hence, the first contention of the petitioner counsel cannot be accepted. 11. The second contention of the counsel for the petitioner that Cheque was issued in respect of chit transaction is concerned. With regard to the said defence is concerned, nothing is elicited from the mouth of PW1 and even the petitioner did not choose to examine himself and he did not step into the witness box to rebut the - 13 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 evidence of the complainant. The Trial Court as well as the First Appellate Court taken note of the fact that Section 139 of N.I. Act is a rebuttal presumption and same has not been rebutted by placing any cogent evidence with regard to the very defence that Cheque was issued towards chit transaction and nothing is placed on record with regard to running of chit fund is concerned. 12. It is important to note that the complainant specifically pleaded in the complaint that he was having acquaintance with the accused from 20 years and he also retired employee of KEB and also for having withdrawn the amount on particular dates i.e., on 16.11.2019 for Rs.1,20,000/- and on 19.12.2019 for Rs.2,30,000/-, he has placed the passbook. Even in the cross-examination, he categorically says that out of Rs.2,50,000/- when he drawn second time, he has paid the amount of Rs.2,30,000/- and remaining amount he kept with him. When such cogent evidence is placed before the Court, the very contention of the counsel for the petitioner cannot be - 14 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 accepted and also though contend that the respondent was not having any source of income to lend the money. The document at Ex.P6 is very clear that on respective dates, the complainant withdrawn the amount and paid the same to the accused. 13. It is important to note that when the Cheque was issued and admitted and no explanation on the part of accused in 313 statement except denying the incriminating evidence. When such material is available on record, I do not find any error committed by both the Courts and there is no any perversity in the finding of both the Court. The scope of revision is very limited. If the order of the Trial Court as well as the First Appellate Court suffers from legality and correctness, then only this Court can exercise its revisional jurisdiction. But in the case on hand, the order of the Trial Court or the First Appellate Court not suffers from any legality or correctness. Hence, no grounds are made to exercise the revisional jurisdiction by - 15 - NC: 2025:KHC:4022 CRL.RP No. 1056 of 2024 this Court. Accordingly, I answer the above point as negative. Point No.2: 14. In view of the discussions made above, I pass the following:
Decision
ORDER The revision petition is dismissed. Sd/- (H.P.SANDESH) JUDGE SN