D. Kumar vs B.G. Manjunath

A.V. Chandrashekara, J.—1. The present revision petition is filed under Section 397 of Cr.P.C., challenging the judgment of conviction passed by the learned XVIII ACMM, Bengaluru, in C.C. No. 9427/2007 and confirmation of the same by order dated 10.3.2015 in Crl. Appeal No. 586/2014 passed by the learned Presiding Officer, Fast Track Court-V, Bengaluru City.

The revision petitioner herein was the accused and respondent herein was the complainant before the trial court. Parties will be referred to as ''complainant'' and ''accused'' as per their ranking in the trial Court.

The case of the complainant is that the accused was very well known to him and the accused had approached him for financial assistance of Rs. 75,000/- as hand loan. Accused is stated to have approached him in the first week of August, 2006 and complainant is stated to have told the accused to come in the second week of August 2006 so that he would arrange money. Accordingly, accused approached the complainant during second week of August, 2006. Complainant was able to arrange only a sum of Rs. 50,000/- and accused availed hand loan of Rs. 50,000/- from the complainant. Accused had promised the complainant to repay the hand loan within three months. After lapse of three months, complainant is said to have demanded the accused to repay his loan amount. Being unable to pay the amount, accused issued a post dated cheque in favour of the complainant drawn on Corporation Bank, Hebbal Branch, Bangalore assuring the complainant that he would arrange money in due course of time.

Accordingly the cheque bearing dated 24.1.2007 was presented for collection in Bank of India, Bettahalasuru and it was returned on 25.1.2007 by the Drawee Bank and the same was intimated to the complainant on 26.1.2007 by the collecting Bank. Later on complainant got issued a legal notice calling upon him to pay the amount mentioned in the cheque within 15 days from the date of receipt of notice and failure to do so, complainant would be constrained to initiate appropriate legal proceedings. Inspite of notice being sent to the correct address of the accused, he did not receive the same and avoided to receive the same. Hence, a complaint was filed on 14.3.2007 before the trial Court which took cognizance and issued summons to the accused.

Complainant is examined as PW-1 and 8 documents were got marked as exhibits. Accused has not chosen to lead any evidence on his behalf. Ultimately the learned Judge has chosen to convict the accused and has directed him to pay Rs. one lakh as fine, out of which a sum of Rs. 85,000/- to be paid as compensation to the complainant and a sum of Rs. 5,000/- towards cost and Rs. 10,000/- towards the State. It is this Judgment which was called in question before the FTC-V. The said appeal is dismissed by the learned Judge of the First Appellate court after contest. These concurrent findings are called in question before this court by filing revision petition.

Learned counsel for the petitioner is absent and petitioner is also absent. Criminal Revision Petition should not be dismissed for default and it should be disposed of on merits. Counsel for the respondent present and heard him.

The defense set out on behalf of accused while cross-examination of P.W. 1 is that complainant had obtained three blank cheques containing signatures of the accused and one amongst them is misused by the complainant as though he had issued a cheque for Rs. 50,000/-, in fact only Rs. 15,000/- had been received as hand loan by the accused from the complainant. After perusing the records, the point for consideration is as follows:

"Whether there are any glaring illegality found in the approach adopted by the trial court as well as first Appellate Court to invoke the revisional jurisdiction vested in this Court under Section 397 of Cr.P.C.?"

The fact that Ex. P1, the cheque drawn on Corporation Bank, Hebbal Branch, Bangalore, by the accused in favour of the complainant is not in dispute. The signature found on Ex. P1 is marked as Ex. P1(a). The date mentioned on the cheque is 24.1.2007. The presumption available under Section 118(a) of Negotiable Instruments Act is that a cheque is always drawn for a consideration. Presumption under Section 139 mandates is that a cheque is issued for discharging a debt either wholly or partially.

The said cheque was presented by the complainant to his Bankers i.e., Bank of India and it was sent for collection and the drawee Bank on which cheque had been drawn intimated the collecting Bank that cheque had to be returned in view of insufficient funds in the account of the accused. Ex. P2 is the said intimation. Ex. P3 is the intimation given by the Bankers to the complainant. The said intimation was given to the complainant by Bank of India on 25.1.2007 and notice was got issued on 6.2.2007 calling upon the accused to pay cheque amount mentioned in the cheque with damages of Rs. 2,000/- within 15 days from the date of notice. The said notice got issued within 15 days prescribed by the statute. The address found in Ex. P7 is the very same address of the accused found in the complaint. It is not the case of the accused that he is not residing in the address mentioned in Ex. P6 or P7. Ex. P7 discloses that he had been intimated about the notice on 6.2.2007 by the postman and it was not claimed even on 10.2.2007. Hence, it was returned to the complainant and hence, there is strict compliance of the mandatory provisions of N.I. Act insofar as issuing legal notice within the limitation period and the service of the said notice. Contents of Ex. P6 and P7 would make out a clear case of deemed service of notice on the accused in terms of Section 27 of General Clauses Act.

Nothing is placed on record to show that the complainant had received three blank cheques from the accused and they contained the signatures and that he had received only Rs. 15,000/-. The accused has not been able to rebut the presumption available under Section 118(a) of the N.I. Act and it has remained only as defense being not substantiated in any manner. In other words, the accused has not entered witness box in support of his case while cross-examining PW-1. Suggestion put to PW-1 that he had granted only Rs. 15,000/- as hand loan and three cheques had been misused, have been emphatically denied. The suggestion put to him that he has foisted a false case against the accused is also specifically denied. Nothing is elicited from the mouth of PW-1 to probabilise the defense taken up on behalf of the accused, even remotely. Even the first Appellate Court, being the final Court of facts, has re-assessed the entire evidence in right perspective and has held that that no illegality or perversity is found to interfere with the said Judgment.

Insofar as the fine amount is concerned, the Court has imposed in all a fine of Rs. one lakh, which is twice of the cheque amount. Out of the same Rs. 50,000/- towards cheque amount, Rs. 35,000/- is awarded under Section 357(1) of Cr.P.C. Therefore, Rs. 85,000/- to be paid as compensation to the complainant. In fact, learned Judge has not imposed any sentence of imprisonment on the revision petitioner-accused. In this view of the matter, sum of Rs. 85,000/- awarded as compensation in terms of Section 357(3) cannot be found fault with. Out of the remaining amount, Rs. 5,000/- is awarded as cost of litigation to be payable to the complainant and Rs. 10,000/- to the State, which is also justified. NO illegality of perversity is found in the approached adopted by the trial court as well as first Appellate Court.

No good grounds are made out to invoke the revisional jurisdiction vested in this Court. Revision Petition is dismissed upholding the Judgment of the trial court as well as the first Appellate Court.