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2022 DIGILAW 351 (KAR)

J. v. Enterprises VS M. Govind Raj

2022-03-11

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - This revision petition is filed challenging the judgment of conviction and sentence dated 27.12.2018 passed in C.C.No.7965/2007 by the Trial Court and also the confirmation order dated 11.11.2019 passed in Crl.a.No.226/2019 by the appellate Court for the offence punishable under Section 138 of the Negotiable Instruments act. 2. The factual matrix of the case is that the complainant in the complaint has contended that these revision petitioners in discharge of the debt, issued cheque bearing No.515300 dated 05.01.2007 drawn on Vijaya Bank, N.R.Road, Bengaluru, for a sum of Rs.38,50,000/-. When the said cheque was presented for encashment on 05.01.2007, the same was dishonoured on the ground of 'insufficient funds.' On receipt of the intimation, legal notice was given to the revision petitioners and he did not comply with the demand and hence complaint was filed by the complainant and the Trial Court after taking the cognizance, examined the complainant as P.W.1 and the other witness as P.W.2 and got marked the documents at Exs.P.1 to 83. On the other hand, the revision petitioner is also examined as D.W.1 and examined other four witnesses as D.W.2 to D.W.5 and got marked the documents at Exs.D.1 to 12. The Commissioner's report is marked as Ex.C.1. The Trial Court after considering both oral and documentary evidence placed on record, including Ex.C.1, sentenced the accused to pay an amount of Rs.38,55,000/-. In default of payment of fine, the accused shall undergo simple imprisonment for a period of six months. 3. Being aggrieved by the said conviction and sentence, the petitioners preferred an appeal and the appellate Court on re-appreciation of the material on record, dismissed the appeal and confirmed the judgment of conviction and sentence. Hence, the present revision petition is filed before this Court. 4. The learned counsel for the petitioners would mainly contend that both the judgment of conviction and sentence and also confirmation suffers from legality and correctness and the Courts below failed to appreciate the fact that the legal notice Ex.P.5 does not contain the details of financial transactions said to have been taken place between the complainant and the accused. The legal notice is very cryptic and vague in nature. The legal notices sent to the petitioners were not served and the notices were retuned unserved with an endorsement that addressee left and no such address. The legal notice is very cryptic and vague in nature. The legal notices sent to the petitioners were not served and the notices were retuned unserved with an endorsement that addressee left and no such address. Inspite of Ex.D.11 is produced, both the Courts have committed an error in not considering the same. It is also contended that on few occasions, the accused had filed the complaint against the complainant and his henchmen, as a result of which the complainant was summoned to the police station for investigation and in the said investigation, the complainant has volunteered few statements. In all such statements, the complainant was inconsistent about the money he has lent to the accused. The above fact is evident from Exs.P.50 to 52. Despite such a glaring infirmity with respect to the claim of the complainant, the Trial Court and the appellate Court have failed to appreciate the said evidence. The main contention of the petitioners is that he has availed the loan of Rs.5 lakhs by issuing blank signed cheques, signed blank promissory notes, signed blank bond papers and signed white sheets as security and the said defence was not accepted by both the Courts. 5. The learned counsel for the petitioners would contend that the Trial Court failed to take note of the earlier legal notice dated 23.01.2016. The documents Exs.D.4 to 7, altogether speaks in different tone and inspite of it, Ex.P.5 legal notice is accepted by the respective Courts. Ex.P.49 is said to be the document executed in favour of Mrs. Rekha. The said person has not been examined to prove his case. Ex.P.21 is also the document of pronote consideration receipt executed in the name of Rekha. These documents shows that an amount of Rs.3 lakhs was given to the accused. Though the accused has disputed regarding execution of these documents, the complainant has not examined her in support of his claim. The Trial Court was pleased to refer Ex.P.2 and 40 for forensic examination to obtain the expert's opinion. The opinion of the expert was marked as Ex.C.1. In the said report, it is stated that the tint of the ink and luster appears similar in the cheque however, the possibility that both the cheques could have been written with the same instrument and at the same time cannot be ruled out. The opinion of the expert was marked as Ex.C.1. In the said report, it is stated that the tint of the ink and luster appears similar in the cheque however, the possibility that both the cheques could have been written with the same instrument and at the same time cannot be ruled out. Inspite of the said report, both the Courts have committed an error. The learned counsel would vehemently contend that the Trial Court has not discussed the cause of action arisen with regard to the claim is concerned. The learned counsel would contend that in the chief examination, the complainant improved his case, but no such averments in the complaint regarding improvisation in the complaint. Hence, the order passed by the Trial Court suffers from legality and its correctness. 6. Per contra, the learned counsel for the respondent would submit that the amount was paid for a period of three years and in pursuance of the receipt of the said amount, on different dates he has executed the promissory notes, which are marked before the Trial Court and also acknowledged the receipt of the said amount. The revision petitioner not disputed those documents, including the document Ex.P.2 issued in the year 2007. The learned counsel submits that the petitioner himself has given the complaint against the respondent herein, wherein he has categorically admitted that he had the financial transaction with the respondent. The Trial Court has taken note of the documents, particularly the cheque and the promissory note executed by the petitioner herein. The learned counsel for the petitioners argued with regard to Exs.D.4 to 7 and those documents are legal notices issued by the respondent prior to the issuance of the subject matter of the cheque and apart from that, before issuance of the subject matter of the cheque, the petitioner categorically admitted in the deposition given before the Trial Court in the case filed by him against the petitioner that they have compromised the matter. Hence, the very contention that the present cheque as well as the notices issued is a subsequent cheque and second time notices has been issued and no cause of action cannot be accepted. The documents which have been marked as Exs.D.4 to 7, no consequence at all. Hence, the very contention that the present cheque as well as the notices issued is a subsequent cheque and second time notices has been issued and no cause of action cannot be accepted. The documents which have been marked as Exs.D.4 to 7, no consequence at all. The learned counsel would contend that Ex.P.5 is the legal notice and both the Courts have considered the valid service of notice since the petitioner has categorically admitted in one of the notices that he was residing at the time of issuance of notice and last known address only notices are served, which have been sent through registered post as well as certificate of posting. The learned counsel brought to the notice of this Court that earlier the matter was remanded and reconsidered and nothing is placed regarding rebuttal evidence. The learned counsel submits that inspite of the interim order passed by this Court, no amount is deposited by the revision petitioners. 7. In reply to the arguments of the learned counsel for the respondent, the learned counsel for the petitioners submits that the respondent has suppressed the materials facts before the Court and hence it requires interference of this Court. 8. Having heard the respective learned counsel and also on perusal of the material available on record, the points that arise for the consideration of this Court are: (i) Whether the Courts below have committed an error in convicting and sentencing the petitioners and both the Courts orders suffers from legality and correctness and whether it requires invoking of revisional jurisdiction? (ii) What order? POINT NO.(I): 9. Having perused the material available on record, it is the claim of the respondent that the petitioner has issued the cheque for an amount of Rs.38,50,000/- and cheque which is marked as Ex.P.2 is not disputed by the petitioner and the same is admitted. The main contention of the learned counsel for the petitioners is that notice Ex.P.5 is very cryptic and not given any details of the financial transaction. The said contention cannot be accepted for the reason that the very petitioner himself has acknowledged the receipt of the amount of Rs.26 lakhs in terms of Ex.P.26 that was issued in the year 2004. Hence, it is clear that there was a transaction between the petitioner and the respondent. The said contention cannot be accepted for the reason that the very petitioner himself has acknowledged the receipt of the amount of Rs.26 lakhs in terms of Ex.P.26 that was issued in the year 2004. Hence, it is clear that there was a transaction between the petitioner and the respondent. It is also important to note that the complainant/respondent not only got marked Ex.P.2 cheque and also issued the legal notice Ex.P.5. No doubt, the postal receipts discloses the issuance of notices against the petitioners in respect of four addresses and Exs.P.10 to 13 are the notices returned unserved and Exs.P.14 to 17 are postal covers. In the cross-examination, the petitioner has categorically admitted that out of four addresses, admitted one of the address and based on the said admission and taking note of the postal receipts having sent the notices through certificate of posting also, the Trial Court comes to the conclusion that the notice has been served. Hence, the very contention that the notice has not been served to the petitioner cannot be accepted. The Trial Court also taken note of the judgment of the apex Court and also the General Clauses act for having deemed service. 10. The other contention of the petitioner that he had availed an amount of Rs.5 lakhs only and not more than that also cannot be accepted in view of Ex.P.26, acknowledgment issued by the revision petitioner. The petitioner himself admitted that he has received an amount of Rs.26,50,000/- and if really he has taken only an amount of Rs.5 lakhs, what made him to give such an endorsement in terms of Ex.P.26, no explanation on the part of the revision petitioner. It is also important to note that the petitioner gave the statement before the police and contents of the complaint also clear that he had availed the loan from the respondent herein but in that statement also he has not disclosed how much amount he has received. It is important to note that Exs.P.18 to 25 on demand pronotes and consideration receipts are also got marked along with the signatures of the petitioner herein and those documents are also not disputed by the revision petitioner and what made him to execute those number of pronotes and consideration receipts, if really he has taken only an amount of Rs.5 lakhs, there is no explanation on the part of the petitioner. It is important to note that the revision petitioner had also given the complaint and the complainant also filed the complaint and there was a criminal case against the respondent in C.C.No.234972005. The order sheet is also produced before the Court. Ex.P.44 the statement given by Balasubramanya before the Court is also marked, wherein he has categorically admitted that they have compromised the matter. It is pertinent to note that when he had deposed before the Court that they have compromised the matter, that was in the year 2006, but subject matter of the cheque was given in 2007 and subsequent to the compromise and hence it is clear that the petitioner has not made out his case as to what made him to give cheque for an amount of Rs.38,50,000/- in the year 2007. The contention that there were two notices cannot be accepted for the reason that earlier Exs.D.4 to 7 are issued by the complainant/respondent before the issuance of subject matter of the cheque. Those notices are in respect of earlier transaction and subsequent to subject matter of the cheque Ex.P.2 that there are no such two notices and hence the said contention cannot be accepted. 11. The contention of the revision petitioner before this Court is that both the Courts failed to accept the defence of the revision petitioner though he examined himself as D.W.1 and examined other witnesses and the Trial Court also taken note of though D.W.4 was examined, who is the co-brother, he was not subjected for cross-examination and his evidence is not accepted. D.W.5 also speaks with regard to the transaction between the parties. The documents which have been marked clearly makes out the case by the complainant/respondent and not in support of the defence of the petitioner counsel that he had availed only an amount of Rs.5 lakhs. What made him to give Ex.P.26 has not been explained. No doubt, it is the contention of the learned counsel for the petitioners that the complainant improvised his case in the chief examination, but the complaint does not disclose all these factors. The complaint need not necessarily explain all the events. But the respondent has relied upon the documents Exs.P.1 to 83. 12. No doubt, it is the contention of the learned counsel for the petitioners that the complainant improvised his case in the chief examination, but the complaint does not disclose all these factors. The complaint need not necessarily explain all the events. But the respondent has relied upon the documents Exs.P.1 to 83. 12. The other contention of the learned counsel for the petitioner is that Ex.C.1 FSL report is clear that tint of the ink not rules out the issuance of the cheque earlier, but the petitioner has to rebut the case of the complainant and in order to rebut the evidence of the complainant though examined five witnesses, including him and the same is not rebutted since the complainant evidence proves the case of the complainant and voluminous documents are marked including Exs.P.18 to 25, particularly Ex.P.26 in which the revision petitioner has acknowledged the receipt of the amount and also the statements made before the police while lodging the complaint against the respondent herein. apart from that, after deposition in terms of Ex.P.44 the subject matter of the cheque was issued and while issuing the cheque, he had acknowledged the due and when he did not dispute Ex.P.2 and his signature, the presumption is in favour of the complainant/respondent and not in favour of the revision petitioner unless he rebuts the evidence of the complainant. Though he took the defence that he only availed the loan of Rs.5 lakhs and not more than that and voluminous documents particularly Ex.P.18 to 25 and 26 supports the case of the complainant/respondent. 13. Both the Trial Court as well as the appellate Court in detail discussed each and every documents and taken note of particularly Exs.P.18 to 25, 26 and 44 and no doubt in Exs.P.50 to 52, the complainant/respondent has also given the complaint and though the learned counsel for the petitioners mainly relied upon the documents Exs.D.4 to 7 regarding the amount, which he has received and admitted in earlier documents and those documents are no consequence in view of execution of Ex.P.2, subject matter of cheque and hence I do not find any reasons to come to other conclusion that the judgments of the Trial Court as well as the appellate Court surfers from legality and correctness. This Court can only exercise the revisional powers, if the order suffers from any legality and correctness. This Court can only exercise the revisional powers, if the order suffers from any legality and correctness. The scope of revision is very limited. The voluminous documents marked in favour of the complainant/respondent establishes the case of the complainant. Hence, I do not find any merit to invoke the revisional powers to set aside the order of conviction and sentence as well as confirmation made by the appellate Court and hence I answer point No.(i) as negative. POINT NO.(II): 14. In view of the discussions made above, I pass the following: ORDER The petition is dismissed.