B.M. BASAVARAJAIAH, vs RAJENDRA KUMAR

Heard the learned counsel for the revision petitioner and perused the impugned judgment and the grounds urged in the petition.

This revision petition is filed by the revision petitioner-accused, challenging the judgment and order of conviction dated 18-2-2009 passed by the JMFC, Challakere in C.C.No.694/2007 and also judgment and order dated 29-1-2010 passed by the Additional District and Sessions Judge, Chitradurga in Crl.A.No.37/2009.

By the impugned judgment, the trial court held that the revision petitioner is guilty for the offence punishable under Section 138 of the Negotiable Instruments Act, and convicted him. Being aggrieved by the same, the revision petitioner preferred an appeal and same also came to be dismissed, affirming the judgment and order of conviction passed by the trial court.

The revision petitioner, challenging the legality and correctness of the judgment and order of conviction passed by both the courts below has preferred this revision petition on the grounds urged in the revision petition.

Heard the arguments of the learned counsel appearing for revision petitioner-accused and also learned counsel appearing for respondent-complainant. Counsel for the revision petitioner during the course of his argument made the submission that the legal notice said to have been issued by the complainant was not at all served/ reached to the revision petitioner and there was no service of said notice on him. But, even then, the courts below have wrongly held that there is a service of legal notice on the revision petitioner. Learned counsel further made the submission that petitioner never borrowed Rs.65,000/- by way of loan from the complainant and he never issued the cheque for the payment of the said amount. Further, it is his submission that in respect of some other transactions, he executed eight promissory notes so also he issued the blank cheques in favaour of the respondentcomplainant. Hence, he submitted that taking undue advantage of said blank cheque, respondentcomplainant filed a false case against the petitioner and all these important aspects were not at all considered by the courts below and wrongly held that he is guilty of the offence punishable under Section 138 of Negotiable Instruments Act. Learned counsel also relied upon the decision of the Hon''ble Apex Court in the case of M/s. Mandvi Co-operative Bank Ltd., Vs. Nimesh B. Thakore (2010 AIR SCW 581). Hence, he made the submission that as there is illegality committed by the courts below, the revision petition be allowed and judgment and order of conviction passed by the trial court which was affirmed by the judgment and order of the first appellate court are to be set aside and accused be acquitted from the case.

Per contra, the learned counsel appearing for the respondent-complainant submitted that the legal notice was duly served on the petitioner in as much as the notice sent to the correct address of the revision petitioner, was not returned back to the complainant by the postal authority. As per Sec. 27 of the General Clauses Act, it is to be presumed that the notice was delivered to the addressee. He also made the submission that so far as borrowing of amount of Rs.65,000/- and issuance cheque, the revision petitioner himself categorically admitted in the crossexamination. Hence, the learned counsel submitted that when he himself admitted the borrowing of the loan and issuance of cheque infavour of the respondentcomplainant, the courts below were justified in convicting the revision petitioner for the said offence. Hence, he prays for dismissal of the revision petition.

I have carefully perused the grounds urged in the revision petition, judgment and orders passed by the courts below and also considered the submission made by both the counsel at the bar.

Though, it is contended by the revision petitioner that he has not borrowed the loan amount of Rs.65,000/- and in respect of some other transaction, he issued eight promissory notes and also signed the blank cheque in favour of the revision petitioner, but looking to the judgment of the trial court, it has discussed that in the cross-examination the revision petitioner himself has admitted that he borrowed Rs.65,000/- on one time about 2 years back and trial court also observed that he has admitted issuance of the cheque and his signature on the cheque. Looking to the cross-examination of this D.W.1 wherein, he has admitted that he completed 7th standard and also T.Ch. and he was serving as a Teacher in the school. He has stated before the court on oath that without knowing to the contents of the documents, he will not put signature on any document. Therefore, on the basis of the evidence adduced by the revision petitioner- accused before the trial court and basing upon his own admission in the cross-examination it is clear that he had borrowed amount from the complainantrespondent. The trial court rightly raised presumption in favour of the complainant that there was such a transaction and because of such transaction, the revision petitioner issued the cheque in favour of the complainant. Therefore, the burden is on the revision petitioner-accused to lead rebuttal evidence by placing the acceptable and cogent evidence before the court. But, looking to the materials placed on record, the revision petitioner has utterly failed to makes out his defence with satisfactory materials that he never borrowed amount, never issued the cheque in discharge of legally recoverable debt and the cheque was issued as a security for security in connection with some other transaction cannot be accepted. Considering all these aspects of the matter, the trial court has come to the conclusion that the complainant has proved his case to the satisfaction of the court that the revision petitioner committed the offence under Section 138 of Negotiable Instruments Act. Looking to the judgment and order of the first appellate court also the first appellate court, on re-appreciation of the entire material both oral and documentary, had also come to the conclusion that there is no illegality committed by the trial court and hence rightly dismissed the appeal, confirming the judgment and order of conviction passed by the trial court.

Looking to these materials placed on record and the reasons recorded by the trial court as well as the first appellate court in support of the findings given in the said judgment, I do not find any illegality in the judgment of the courts below nor there is any perversity in the said findings. There are no justifiable or valid grounds in this revision petition to interfere with the concurrent findings rendered by the courts below. The revision petition is devoid of merits. Hence, revision petition is hereby dismissed.