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2024 DIGILAW 277 (KAR)

Venkatesh v. C. Kenchaiah

2024-04-15

RAJESH RAI K.

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ORDER Rajesh Rai K, J. In this revision petition, the petitioner/accused has challenged the legality and the correctness of the judgment and order dated 10.08.2016 passed by the LVIII Additional City Civil and Sessions Judge, Bengaluru City in Crl.A.No.920/2015, wherein learned Sessions Judge dismissed the appeal filed by the petitioner and confirmed the judgment and order dated 07.07.2015 passed by the XVIII ACMM Court, Bengaluru in C.C.No.21516/2009. 2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court i.e., the revision petitioner as accused and the respondent as complainant. 3. The factual matrix of the case, in brief, is as follows: The respondent/complainant filed a private complaint under Section 200 of Cr.P.C. praying to take cognizance of the offence punishable under Section 138 of NI Act against the accused alleging that the accused and the complainant have entered into an agreement for sale dated 05.01.2007 in respect of site No.19 situated at Chandranahalli comprised in Survey No.40 of Sompura Hobli, Nelamangala Taluk, Bengaluru Rural District. 4. It is further case of the complainant that at the time of entering into the said agreement with the accused, he had paid advance amount of Rs.2,50,000/- to the accused and subsequently, due to misunderstanding between them, the said sale transaction was not complete. Therefore, the accused had issued a cheque dated 26.11.2008 for a sum of Rs.2,50,000/-drawn on Andhra Bank, Siddartha Public School and College, Bengaluru in favour of the complainant towards repayment of advance sale consideration. Accordingly, he presented the said cheque for encashment, but the same was returned unpaid with an endorsement 'Funds Insufficient'. Thereby, he got issued legal notice dated 05.06.2009 to the accused calling upon him to make payment of the cheque amount. The said notice sent through registered post so also under certificate of posting. The registered post was returned to the sender with an endorsement 'not claimed'. However, notice sent through certificate of posting was served on the accused. Since the accused failed to comply with the legal notice by paying the cheque amount, the complainant filed a private complaint before the trial Court. Subsequently, learned Magistrate took cognizance of the offence and issued summons to the accused. Consequently, the accused entered his appearance and the case tried before the learned Magistrate in C.C.No.21561/2009. 5. Since the accused failed to comply with the legal notice by paying the cheque amount, the complainant filed a private complaint before the trial Court. Subsequently, learned Magistrate took cognizance of the offence and issued summons to the accused. Consequently, the accused entered his appearance and the case tried before the learned Magistrate in C.C.No.21561/2009. 5. In order to prove his case before the trial Court, the complainant examined himself as PW.1 and got marked 9 documents as Exs.P1 to P9. The accused has also examined himself as DW.1, however, he has not got marked any document on his behalf. 6. After analyzing all the evidence and materials, the trial Court convicted the accused for the offence punishable under Section 138 of NI Act and sentenced him to pay a fine of Rs.5,00,000/- and in default to undergo simple imprisonment for one year. It is also directed by the trial Court that out of fine amount of Rs.5,00,000/-, Rs.4,85,000/- has to be paid to the complainant as compensation and Rs.15,000/- shall be defrayed to the State for expenses incurred in the prosecution. The said judgment and order passed by the trial Court was challenged by the accused before the First Appellate Court in Crl.A.No.920/2015. 7. The First Appellate Court, after considering the facts and circumstances of the case so also after re-appreciating the evidence available on record, dismissed the appeal filed by the accused and confirmed the judgment and order passed by the trial Court as stated supra. Hence, this revision petition. 8. I have heard Sri Jayaprakash Shetty.B., learned counsel for the revision petitioner/accused so also Sri Naik Ramachandra Rao, learned counsel for the respondent/complainant. 9. It is the primary contention of the learned counsel for the revision petitioner/accused that the Appellate Court erred while confirming the conviction judgment and order passed by the trial Court, wherein the name of the respondent has not been shown in the cause title instead a new person name was incorporated in the place of the respondent and the said person no way connected to the facts and circumstances of the case. Hence, according to the learned counsel, judgment and order passed by the First Appellate Court has to be set aside on that ground alone. Hence, according to the learned counsel, judgment and order passed by the First Appellate Court has to be set aside on that ground alone. He would further contend that both the trial Court as well as the First Appellate Court failed to appreciate the evidence available on record in a proper perspective and committed an error by convicting the accused for the offence punishable under Section 138 of the NI Act. He would further contend that the legal notice caused by the complainant to the accused as per Ex.P4 was not served to the accused. According to him, the accused was residing at R.T.Nagar during that period, but the legal notice was addressed to Bhuvaneshwari Nagar, Bengaluru. Further, endorsements dated 12.06.2009 and 13.06.2009 also show as 'door locked'. As such, it is clear that the accused was not residing in the said place and hence, non-service of demand notice sent by the complainant itself vitiates the entire proceedings. He would also contend that both the trial Court so also the First Appellate Court have failed to consider the fact that the agreement of sale dated 05.01.2007 depicts that the complainant had paid only Rs.1,00,000/- to the accused. However, there is no such mention of payment of balance amount of Rs.1,50,000/-. As such, the complainant has failed to prove that there is legally enforceable debt of Rs.2,50,000/-due to him by the accused. He further states that in Ex.P4, the complainant himself admitted that the accused had already repaid Rs.2,50,000/- both by way of cash and cheque. In such circumstances, there is no occasion arises to issue cheque by the accused to the complainant. Accordingly, learned counsel for the revision petitioner/accused prays to allow the revision petition by setting aside the judgments and orders passed by the trial Court so also the First Appellate Court. 10. Refuting the above submissions made by the learned counsel for the revision petitioner/accused, learned counsel for the respondent/complainant would submit that the trial Court, after meticulously examining the evidence and the documents, has rightly convicted the accused for the offence punishable under Section 138 of the NI Act, which was confirmed by the First Appellate Court. Hence, the well reasoned judgments do not call for any interference by this Court. Hence, the well reasoned judgments do not call for any interference by this Court. Learned counsel would further, by enunciating his arguments, contend that on perusal of the sale agreement i.e., Ex.P8, the same depicts that the accused has received Rs.1,00,000/- by way of cash so also Rs.1,50,000/- by way of cheque, thus totaling to Rs.2,50,000/-. To that effect, there is an endorsement in the agreement itself. Further, learned counsel also relied on Ex.P9 i.e., Bank statement of the complainant and submits that in the said statement, the transaction dated 22.03.2007 clearly reflects about debiting of Rs.1,50,000/- from the account of the complainant to the account of the accused. He would also contend that the accused-DW.1 has categorically admitted in his crossexamination that he had received Rs.1,00,000/- by way of cash from the complainant. Hence, it could be easily concluded that the accused has received Rs.2,50,000/- from the complainant as advance sale consideration and since the sale transaction was not materialized, for the repayment of the said amount of Rs.2,50,000/-, the accused had issued a cheque i.e., Ex.P1 for Rs.2,50,000/-. Therefore, the evidence and the documents placed by the complainant clearly proved his case. As such, both the Courts below have rightly convicted the accused for the offence punishable under Section 138 of NI Act. Accordingly, he prays to dismiss the revision petition. 11. Having heard the learned counsel for both the parties so also having given my anxious consideration on the documents made available before me including the judgments passed by the trial Court as well as the First Appellate Court, the only point that would arise for my consideration is: "Whether the judgments passed by the trial Court so also the First Appellate Court require interference by this Court?" 12. On careful perusal of the evidence available on record, it could be seen that the complainant and the accused were entered into sale agreement dated 05.01.2007 for purchase of a property by the complainant from the accused. It is also not in dispute that in the said agreement, it clearly depicts that the complainant has paid Rs.2,50,000/- to the accused i.e., Rs.1,50,000/- by way of cheque and Rs.1,00,000/- by way of cash. It is also not in dispute that in the said agreement, it clearly depicts that the complainant has paid Rs.2,50,000/- to the accused i.e., Rs.1,50,000/- by way of cheque and Rs.1,00,000/- by way of cash. Though the accused disputed Rs.1,00,000/- paid by the complainant by way of cash, but on careful perusal of Ex.P8-Sale agreement, the same depicts an endorsement made by both the parties for having paid Rs.2,50,000/- by the complainant to the accused. Moreover, the accused categorically admitted in his cross-examination that he had received Rs.1,00,000/- from the complainant by way of cash. 13. Learned counsel for the revision petitioner vehemently contends that the demand notice was not served to the accused for the reason that the notice was sent to Bhuvaneshwari Nagar, Bengaluru, whereas the accused was residing at R.T.Nagar, Bengaluru during that relevant time. However, on careful perusal of the postal endorsement as per Ex.P7, the same depicts that the said post was returned to the sender with an endorsement 'addressee not claimed'. However, notice sent through certificate of posting has been served on the accused. Moreover, the trial Court has rightly observed that in the proceedings, summons was issued to the accused to the very same address as shown in the complaint and Ex.P7 i.e., postal envelop returned with an endorsement 'duly served'. Admittedly, the accused has failed to produce any document to show that at the relevant time, he was residing at R.T.Nagar. Hence, as per Section 27 of the General Clause Act, there is presumption regarding service of letter sent through registered post. Since the accused failed to rebut such presumption, in my considered view, both the Courts below have rightly appreciated the said aspect of the matter. 14. As far as the second contention of the learned counsel for the revision petitioner that the complainant has admitted in the legal notice i.e., Ex.P4, the accused has repaid Rs.2,50,000/- to him. Hence, there arises no need to issue cheque by the accused to the complainant for repayment of advance amount. However, on careful perusal of the evidence of DW.1, he has categorically admitted in his cross-examination about the execution of sale agreement as per Ex.P8 for Rs.4,75,000/- and payment of advance sale consideration of Rs.1,00,000/- by the complainant to him by way of cash. However, on careful perusal of the evidence of DW.1, he has categorically admitted in his cross-examination about the execution of sale agreement as per Ex.P8 for Rs.4,75,000/- and payment of advance sale consideration of Rs.1,00,000/- by the complainant to him by way of cash. As far as balance amount of Rs.1,50,000/- is concerned, the Bank statement of the complainant at Ex.P9 clearly depicts that on 22.03.2007, a sum of Rs.1,50,000/- has been credited to the account of the accused. As such, it is clear that Rs.2,50,000/-has been paid by the complainant to the accused. Admittedly, the accused has not placed any documents or evidence to substantiate that he has repaid the said amount of Rs.2,50,000/- received from the complainant. 15. In such circumstances, the trial Court has rightly held that the advance amount of Rs.2,50,000/- has been received by the accused from the complainant and due to break down of the sale transaction between the parties, in order to repay the amount of Rs.2,50,000/-, the accused has issued cheque at Ex.P1 to the complainant to discharge the legally recoverable debt. Though it is settled principle of law by the Hon'ble Apex Court that the initial burden, which favours the complainant, can be rebutted with probable defence by the accused, but in the case on hand the accused failed to rebut the presumption by placing reliable documents or evidence. 16. As such, in my considered view, the trial Court so also the First Appellate Court have elaborately discussed the facts and circumstances of the case and rightly appreciated the oral and documentary evidence and thereby passed by the impugned judgments. 17. Lastly, learned counsel for the revision petitioner contends that the cheque amount is of Rs.2,50,000/- and the trial Court has imposed an exorbitant fine of Rs.5,00,000/-, which is double the cheque amount. As such, he seeks indulgence of this Court to interfere with the fine amount imposed by the trial Court and prays to reduce the same. 18. 17. Lastly, learned counsel for the revision petitioner contends that the cheque amount is of Rs.2,50,000/- and the trial Court has imposed an exorbitant fine of Rs.5,00,000/-, which is double the cheque amount. As such, he seeks indulgence of this Court to interfere with the fine amount imposed by the trial Court and prays to reduce the same. 18. Having considered the facts and circumstances of the case so also considering the aspect that the cheque amount is of Rs.2,50,000/-, I deem it appropriate to modify the fine amount imposed by the trial Court which was upheld by the First Appellate Court by directing the accused to pay Rs.4,00,000/- instead of Rs.5,00,000/- and in default of payment of the said fine amount, he shall undergo simple imprisonment for a period of six months instead of one year. Accordingly, I answer the point raised above in the partly affirmative and proceed to pass the following: ORDER i) The criminal revision petition is partly allowed. ii) The fine amount of Rs.5,00,000/- imposed by the trial Court, which was upheld by the First Appellate Court, is reduced to Rs.4,00,000/-. iii) The accused is sentenced to pay a fine of Rs.4,00,000/- including the fine amount, if any already deposited and in default of payment of fine amount, he shall undergo simple imprisonment for a period of six months. iv) The accused shall pay the entire fine amount of Rs.4,00,000/- to the complainant within a period of six weeks from the date of receipt of certified copy of this order, failing which, the trial Court is directed to secure the presence of the accused to undergo default sentence. Registry is directed to send the copy of this order to the trial Court along with LCR forthwith.