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2021 DIGILAW 504 (KAR)

Uday Shetty v. Yogesh Gudigar

2021-03-29

H.B.PRABHAKARA SASTRY

body2021
ORDER : The present petitioner as the accused was tried by the Court of the learned Civil Judge (Jr.Dn.) & Judicial Magistrate First Class, Sagar, (hereinafter for brevity referred to as the "Trial Court") in C.C.No.706/2011, for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as the "N.I. Act") and was convicted for the said offence by its judgment of conviction and order on sentence dtd. 26/10/2013. Aggrieved by the same, the accused preferred a Criminal Appeal in the Court of the V Additional District and Sessions Judge, Shivamogga sitting at Sagar (hereinafter for brevity referred to as the "Sessions Judge's Court") in Criminal Appeal No.273/2013. The appeal was contested by the respondent who was the complainant in the Trial Court. The Sessions Judge's Court in its judgment dtd. 8/7/2015 dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court in C.C.No.706/2011. Aggrieved by the impugned judgments and order on sentence, the accused has preferred this revision petition. 2. The summary of the case of the complainant in the Trial Court is that, the accused being well known to him, had borrowed a sum of Rs.1,50,000.00 from him in the month of March 2010, agreeing to repay the same along with interest thereupon within three months. Since the accused did not repay the loan amount within the agreed period, at the demand made by the complainant, he issued a cheque bearing No.719054 dtd. 16/6/2010, drawn on Syndicate Bank, Ankola Branch, in favour of the complainant, for a sum of Rs.1,50,000.00. When the said cheque was presented for its realisation, the same came to be dis-honoured and returned with the banker's shara "A/c closed". According to the complainant, thereafter, he got issued a legal notice to the accused, which was sent to him through Registered Post Acknowledgement Due (RPAD) as well Under Certificate of Posting (UCP). Though the notice sent through Registered Post Acknowledgement Due was returned with an endorsement, "out of station - intimation delivered - left-address not known" but the notice sent Under Certificate of Posting is served upon the accused. Still, the accused did not meet the demand made in the notice, which constrained the complainant to institute the present criminal case against the accused. 3. The accused appeared in the Trial Court and contested the matter through his counsel. Still, the accused did not meet the demand made in the notice, which constrained the complainant to institute the present criminal case against the accused. 3. The accused appeared in the Trial Court and contested the matter through his counsel. He pleaded not guilty and claimed to be tried, as such, the Trial Court proceeded to record the evidence wherein, to prove his case, the complainant got examined himself as PW-1 and got marked documents from Exhibits P-1 to P-8. The accused, who contested the matter in the Trial Court, got himself examined as DW-1 and got marked two documents at Exhibits D-1 and D-2. 4. The Trial Court after recording the evidence led before it, by its impugned judgment of conviction dtd. 26/10/2013 convicted the accused for the offence punishable under Sec. 138 of the N.I. Act and sentenced him to pay a total fine amount of Rs.1,55,000.00, in default, to undergo simple imprisonment for a period of six months. Challenging the same, the accused preferred an appeal in Criminal Appeal No.273/2013 before the learned Session's Judge's Court, which after hearing both side, by its judgment dtd. 8/7/2015, dismissed the appeal, while confirming the judgment of conviction passed by the Trial Court. Being aggrieved by the same, the accused has preferred this revision petition. 5. Learned counsel for the revision petitioner/accused is appearing through video conference and learned counsel for the respondent/complainant is appearing physically before the Court. 6. The Trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court. 7. Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge's Court's records. 8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court. 9. After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is : Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court? 10. It is an admitted fact that, the accused and the complainant were known to each other and both of them were artisans and making handicraft art pieces. According to the complainant, he was doing sandalwood carving activity. 10. It is an admitted fact that, the accused and the complainant were known to each other and both of them were artisans and making handicraft art pieces. According to the complainant, he was doing sandalwood carving activity. It is also not in dispute that, the complainant had got a brother-inlaw by name Sri.G.K. Kurudekar, who was also known to the accused. It is not in dispute that, the drawer of the cheque at Exhibit P-1 is the accused and the said cheque, when presented for realisation, the same came to be dis-honoured and returned with the banker's memo, "A/c closed". It is in these un-disputed facts, the case is required to be analysed. 11. Learned counsel for the petitioner/accused in his argument submitted that, he would place his case before the Court on the grounds that, there is no service of notice upon the accused after the dishonour of the cheque, which service of notice is mandated under law. He further submits that, the complainant had no financial capacity to lend the money to the accused. Finally stating that, since prior to the date of the alleged loan transaction till the year 2011, the accused was pursuing his avocation at Bengaluru, as such, the question of he availing any loan from the complainant does not arise. 12. Per Contra, the learned counsel for the respondent/ complainant, in his argument, submitted that, the summons issued by the Trial Court has been served upon the accused on his address to which address only the legal notice under Registered Post Acknowledgement Due (RPAD) was sent. Therefore, there is service of notice upon the accused. He further submits that Ex.D-1 is not believable and there are no material to show that, the accused was living at Bengaluru at the relevant point of time. He also submits that, in the cross-examination of PW-1, it has come out that, the accused after selling the art and craft works of the complainant, had paid him a sum of Rs.1,24,964.00, which itself would go to show that, the complainant had financial capacity to lend money. 13. The cheque at Exhibit P-1, no doubt, shows the name of the payee as that of the complainant and admittedly, the said cheque, when presented for its realisation, came to be dishonoured and returned with the banker's shara "A/c closed" as evidenced in Exhibit P-2, which is the banker's endorsement/memo. 13. The cheque at Exhibit P-1, no doubt, shows the name of the payee as that of the complainant and admittedly, the said cheque, when presented for its realisation, came to be dishonoured and returned with the banker's shara "A/c closed" as evidenced in Exhibit P-2, which is the banker's endorsement/memo. It is thereafter, according to the complainant, a notice demanding the payment of the cheque amount was sent by him to the accused, which notice sent through Registered Post Acknowledgement Due (RPAD) came to be returned un-served, whereas the notice sent Under Certificate of Posting (UCP) has not been returned. It is on this aspect, the accused's contention is that, there was no possibility of service of any notice upon him since he was residing at Bengaluru at the relevant point of time. Thus, the learned counsel for the petitioner/accused in his argument gave more emphasis on his first point of argument on the alleged non-service of notice upon the accused. 14. PW-1 in his examination-in-chief itself has stated that, he sent notice to the accused, both Under Certificate of Posting (UCP) as well under Registered Post Acknowledgement Due (RPAD). But, he himself has stated in the very same examination-in-chief that, notice sent under Registered Post Acknowledgement Due has been returned to him un-delivered. He has also admitted a suggestion to that effect as true in his cross-examination. Though he contends that, the notice was also sent through Certificate of Posting, as could be seen in the postal certificate at Exhibit P-7, but, admittedly no document/proof regarding the service of any letter sent Under Certificate of Posting would be available, because, there is no such practice of issuing of any certificate of service. No doubt, if the address shown of the addressee therein is found to be correct and if it is established that the postal article was sent with the correct and complete address of the addressee, by paying necessary postage and duly dispatched for delivery, then, under Sec. 27 of the General Clauses Act, 1897, a presumption can be drawn. It is in that regard, even though the complainant contends that, the notice sent to the accused Under Certificate of Posting has been served upon him, the same requires to be tested and analysed. 15. It is in that regard, even though the complainant contends that, the notice sent to the accused Under Certificate of Posting has been served upon him, the same requires to be tested and analysed. 15. The returned postal article sent through Registered Post Acknowledgment Due which is at Exhibit P-5 would go to show that, it has been returned with the postal shara, which is dtd. 12/7/2010 showing it as "out of station - intimation". The very same postman, on a subsequent endorsement dtd. 20/7/2010 in the very same postal article, has made an endorsement as "Left - Address not known". This makes it very clear that, though the postman had initially appears to have issued an intimation regarding the arrival of the postal article, but during the retention period of the postal article, he came to know that the addressee has left the place and his current (then) address was not known. As such, it is that postal shara with which the article has been returned to the sender, has to be considered, which shows that, the addressee had left the address. Therefore, admittedly, the Registered Post Acknowledgement Due stood returned to the sender. 16. According to the complainant, the notice sent to the very same address Under Certificate of Posting has been served upon the accused. In that regard, he has produced a Certificate of Posting at Exhibit P-7, which shows that such a posting was made addressed to the present address of the accused. It is known to everyone that Certificate of Posting could only show that, such a posting was made to a particular address, but it would not certify the receipt of such an article by the addressee in the said Certificate. However, if it is established that, the said address shown in the postal article is the correct, complete and then residing address of the accused and if it is shown that it has been duly stamped and dispatched for delivery, a presumption can be drawn in favour of the sender. However, in the instant case, no documents are produced by the complainant to show that, the accused was residing at that particular address at the relevant point of time, which is shown in the postal article at Exhibit P-5 and the Certificate of Posting at Exhibit P-7. However, in the instant case, no documents are produced by the complainant to show that, the accused was residing at that particular address at the relevant point of time, which is shown in the postal article at Exhibit P-5 and the Certificate of Posting at Exhibit P-7. As observed in the previous paragraph, the postal article sent under Registered Post Acknowledgement Due has been returned with the postal shara "addressee left and his address not known", which means, the very same postal authority has put it in writing, stating that, the addressee has left the address and his address was not known. In such an event, even if the unregistered postal article is sent Under Certificate of Posting to the very same address, then the said article, may, at the maximum, be delivered in that address, but not to the person named as addressee in the letter, since the addressee has already left the address. 17. In support of the above analysis, Ex.D-1 also can be considered, which is a letter of employment shown to have been issued by the alleged employer of the accused, stating that, from the year 2007 upto the year 2011, the accused was working in a firm by name "The Oriental Haveli" Koramangala, Bengaluru. It was suggested to PW-1 in his cross-examination that, from the year 2007 to 2011, the accused was working in an establishment at Bengaluru, however, the complainant has stated that, he had no information in that regard. In furtherance of such a contention, the accused has produced the said Exhibit D-1, however, the complainant in his cross-examination did not deny the genuinity and authenticity of the said document at Ex.D-1, rather, he elicited some more details as to, who was the author of the said document, for which, the accused has stated that, it was his Manager. Therefore, it can be stated that the accused has placed evidence to show that, at the relevant point of time, he was residing at Bengaluru. 18. Learned counsel for the respondent/complainant submitted that, the notice sent to the accused in the criminal case was served upon his address which was his native place address at Kumta, to which the legal notice was sent, as such, the accused cannot deny the service of notice upon him. 19. In that regard, the following two points can be noticed. Learned counsel for the respondent/complainant submitted that, the notice sent to the accused in the criminal case was served upon his address which was his native place address at Kumta, to which the legal notice was sent, as such, the accused cannot deny the service of notice upon him. 19. In that regard, the following two points can be noticed. [a] If according to the complainant, the accused was residing at Kumta, at the time when the legal notice and the Court notice in the criminal case was sent, then, the postal endorsement at Exhibit P-5 is required to be treated as a false shara. In such an event, the complainant was expected to examine the author of the said postal acknowledgement, which he did not do; [b] A perusal of the Trial Court record would go to show that, the notice sent to the accused to the address showing the accused as the resident of Kumta was not served upon him personally, but it was served upon his brother at a different address, though in the same place, and through the Police. Added to this, DW-1 in his cross-examination has also stated that he came to know about the criminal case only through his mother, which further makes it clear that, the accused was not residing at his address in Kumta, at the relevant point of time, though his other family members might have been residing in the place called Kumta. By that itself, it cannot be said that the notice sent to the accused was served upon him when the postal shara has shown that, he has left the address and the document at Exhibit D-1 also shows that, he was working at Bengaluru at the relevant point of time. However both the Trial Court and the Session's Judge's Court, on their own, considered a surety affidavit shown to have been filed by the surety, who incidentally said to be the mother of the accused, wherein she is said to have produced a copy of the ration card, showing her address at Kumta. In the said ration card, one of the members of the family of that lady was shown to be the accused. In the said ration card, one of the members of the family of that lady was shown to be the accused. Both the Trial Court and the Session's Judge's Court, on their own, accepting the same as the documentary proof, without there being any confrontation of the said document with DW-1, proceeded to hold that, the accused was residing at the address shown in the notice. 20. In view of the above analysis made, though the accused has produced cogent evidence to show that as on the date, he was not in the address at Kumta, but was residing at Bengaluru, and the postal article also shows that, he was not residing at Kumta, and had left the said place, it can be safely held that, the complainant could not able to prove that, there was valid service of notice upon the accused, after the dishonour of the cheque at Exhibit P-1. Though the said cheque at Ex.P-1 came to be dishonored for the reason of closure of the account and though the accused was the drawer of the said instrument, but in the absence of service of notice upon the accused, demanding the payment of the cheque amount, which is mandated under Sec. 138 of the N.I. Act, it cannot be held that, the complainant had fulfilled all the necessary ingredients of Sec. 138 of the N.I. Act. 21. The other point of argument of the learned counsel for the petitioner/accused was about the alleged financial incapacity of the complainant to lend such a huge amount as loan. In the cross-examination of PW-1, it has been elicited that, the complainant was working as an artisan having income of a sum of Rs.15,000.00 per month and that he was not an income tax assessee. However, no suggestion was made to the witness suggesting that, financially, he was incapacitated to lend the money. In the absence of any specific suggestion made to the complainant, questioning his financial incapacity and when the complainant himself has stated that, he was earning a sum of Rs.15,000.00 per month, it cannot be inferred that, the complainant had no financial capacity to lend the alleged loan to the accused. In the absence of any specific suggestion made to the complainant, questioning his financial incapacity and when the complainant himself has stated that, he was earning a sum of Rs.15,000.00 per month, it cannot be inferred that, the complainant had no financial capacity to lend the alleged loan to the accused. Therefore, it can be held that, even though the accused could not able to show that the complainant had no financial capacity in order to raise any suspicion regarding the financial soundness of the complainant, but he could able to establish that, there was no service of notice upon him after the dishonour of the cheque. Since, as observed above, both the Trial Court and the Sessions Judge's Court have erred in appreciating the evidence placed before them regarding the service of the alleged notice upon the accused and have arrived at an erroneous conclusion, it has to be held that, the impugned judgments under revision suffer from perversity, warranting interference at the hands of this Court. Accordingly, I proceed to pass the following:- ORDER [i] The Criminal Revision Petition is allowed; Crl.R.P.No.810/2015 17 [ii] The impugned judgment of conviction and order on sentence dtd. 26/10/2013, passed by the learned Civil Judge (Jr.Dn.) and Judicial Magistrate First Class, Sagar, in C.C.No.706/2011, holding the accused guilty of the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881, and sentencing him for the alleged offence, is set aside; Consequently, the judgment passed by the Court of the V Additional District and Sessions Judge, Shivamogga sitting at Sagar, dtd. 8/7/2015, in Criminal Appeal No.273/2013, is also set aside. [iii] The accused - Sri. Udaya Shetty, S/o. Vittala Shetty, is acquitted of the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881. Registry to transmit a copy of this order to both the Trial Court and also the Sessions Judge's Court along with their respective records forthwith.