H.P. Mudlappa vs H. Narayana

A.V. Chandrashekara, J.—1. The present revision petition is filed under Section 401, Cr.P.C. challenging the judgment passed in C.C. 18424/03 and affirmation of the same in Crl. A. 319/07.

Petitioner herein was the accused in the said criminal case, C.C. 118424/03, a complaint filed for the offence punishable under Section 138, Negotiable Instruments Act. The said case ended in conviction and the petitioner is sentenced to pay Rs. 1.75 lakhs and in default, to undergo SI for 12 months, vide judgment dated 19.2.2007. Against the said judgment of conviction and sentence, an appeal was filed under Section 374, Cr.P.C. before the XXXVI Additional City Civil Judge, Bengaluru, in Crl. A. 319/07. The said appeal is dismissed after contest by judgment dated 5.11.2007. These concurrent findings are called in question in this revision petition on various grounds as set out in the memorandum of petition.

Parties will be referred to as complainant and accused as per their ranking before the trial court. The facts leading to the filing of this petition are as follows:

"a) Accused is a practicing advocate at Bengaluru and he is stated to have availed the services of the complainant to put up a building at No. 44, Kuvempu Complex, 3rd Main, 3rd Block, Basaveshwarnagar, Bengaluru-560 079. Towards the amount payable to the complainant relating to the cost of construction, a cheque was issued by the accused in favour of the complainant drawn on State Bank of Mysuru, P & S Division, Bengaluru Main Branch, in a sum of Rs. 1,00,000/- bearing No. 779884.

b) It is the case of the complainant that the wife of the accused was expected to pay Rs. 4,00,000/- and out of the same, one cheque was issued by the accused for Rs. 1,00,000/- and another cheque was issued by his wife for a sum of Rs. 3,00,000/-. The cheque issued by the accused in favour of the complainant was presented and it was returned with the endorsement ''insufficient funds.''

c) After issuing legal notice, the complainant chose to file a complaint under Section 138, N.I. Act on 13.10.2003. After taking cognizance, summons was issued and the accused entered appearance. The defence set up on behalf of the accused is that the cheque in question had been stolen by the complainant since he was coming to his office often. According to him, he did not owe any money and there existed no relationship of debtor and creditor. According to him, complainant himself had availed the loan from him (accused) and had issued cheques towards discharge and many of them got bounced. As such, accused had filed criminal cases against the complainant.

d) Complainant himself is examined as PW-1 and in all, 8 exhibits are got marked. Accused is examined as D.W. -1 and has got marked 6 exhibits. Ultimately the learned judge of the trial court has chosen to convict the accused as against which an appeal was filed, and the said appeal is also dismissed."

Several grounds have been urged in this revision petition. The revision petitioner has submitted his notes of arguments since he has not engaged any advocate.

Heard the learned counsel for the respondent.

After hearing the learned counsel for the parties, and perusing the records, the following point arises for the consideration of this court:

"Whether the trial court and the first appellate court have committed any glaring illegality in convicting the accused and sentencing him to pay Rs. 1.75 Lakhs as fine for the offense punishable under section 138, N.I. Act?"

What exactly is the scope of revisional power of this court under section 397, Cr.P.C. has been succinctly explained by the Hon''ble apex court in the case of Amit Kapoor v. Ramesh Chander & Another reported in , (2012)9 SCC 460. It is made clear by the Hon''ble apex court the object of Section 397, Cr.P.C. is to set right the patent defects or error of jurisdiction of law and there has to be a well-founded error. Paragraph 12 of the said decision is relevant and is extracted below.

"12. Section 397 of the Code vests the Court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the Court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits."

In order to know the basis for initiating criminal action against the accused for the offense punishable under section 138, N.I. Act, the court will have to look into the foundation laid in the complaint filed under section 2(d), Cr.P.C. before the trial court which is marked as Ex. P1. The case of the complainant is that the accused had entrusted the work of putting up a building situated in No. 48, 2nd main, 2nd cross, 3rd stage, 3rd block, Bashveshwarnagar, Bangalore 560079, and that the building is called as Kuvempu Complex. Towards the cost of the said construction, a sum of Rs. 4 Lakhs was due to the complainant by the accused and in this regard, he had issued a cheque in favor of the complainant for Rs. 1 Lakh, and his wife-Smt. Sarla had issued a cheque for 3 Lakhs. The cheque issued by the accused in favor of the complainant for Rs. 1 Lakh was drawn on the State Bank of Mysore, P&S division, Bangalore main branch, dated 15/09/2003. The said cheque is marked as Ex. P2.

When Ex. P2 was presented for encashment to the said bank, it was returned with the endorsements ''drawer''s signature incomplete/differs/required'' and ''funds insufficient.'' In the complaint, it is mentioned that the said cheque was returned with the endorsement ''funds insufficient.'' Even if the cheque had been returned on the ground that the signature found thereon differed with the specimen signature obtained from the accused by the drawee bank, burden was on the drawer to show that he had maintained sufficient amount in his account on the date when it was presented by the drawee.

Ex. P3 is the memo issued by State Bank of Mysore, P & S division, Bangalore Main Branch. On 17/09/2003, intimating the drawee that the signature found on the cheque differed. Consequent upon receipt of memo from the bank wide Ex. P3, the complainant got issued a legal notice through his advocate on 19/09/2003, calling upon the accused to pay Rs. 1.00 lakh within 15 days, lest, he would be constrained to initiate appropriate criminal action. The said notice had been sent through RPAD and Ex. P5 is the receipt issued by the post office and the notice was also received by his wife-Smt. Sarla on behalf of her husband. Ex. P7 is the postal acknowledgement bearing the signature of Smt. Sarla. Apart from this, Ex. P4-notice had also been sent through certificate of posting and it is evident from Ex. P6-certificate of posting. It is not the case of the accused that he or his family members did not receive any notice sent by the complainant.

The defense taken up on behalf of the accused is that the complainant was known to him and was coming to his office often and that he had stolen the cheque from his cheque book and had forged his signature, and therefore, the cheque does not bear his signature. It is in this regard, he is stated to have filed a complaint in terms of 2(d), Cr.P.C. against the complainant which is registered in PCR. 2026/06 for the offenses punishable under sections 328, 329, 405, 406, 417 and 420, I.P.C. The certified copy of the complaint filed in PCR. 2026/06 is produced along with Ex. D7. Certified copy of the order ship maintained in the said case dated 03.03.2006 discloses that the IV ACMM had taken cognizance of the offence and had issued process under section 204, Cr.P.C. for the offenses punishable under sections 308 and 406, I.P.C. the certified copy of the sworn statement of the complainant therein (Moodalappa) is produced along with Ex. D7.

If really the cheque marked as Ex. P1 was stolen and his signature was forged to make unlawful gain of Rs. 1.00 lakh, in all earnestness, the accused should have pursued that criminal case registered in PCR. 2026/06. Nothing is placed on record to show that it was pursued and taken to its logical end. Therefore, the trial court was constrained to hold that the cheque marked as Ex. P1 was issued by the accused.

Apart from this, the accused has not examined the manager of the drawer bank, i.e. State Bank of Mysore, P & S Division, Bangalore Main Branch, in the light of the endorsement found in Ex. P3-memo issue by the bank. The cumulative effect of not taking PCR 2026/06 to its logical end and not examining the manager of the bank, the trial court has come to the conclusion that the same will not have any effect. Apart from this, it is observed that there was a delay of 3 years in filing the complaint in regard to the theft of the cheque marked as Ex. P1. In fact, in Ex. P3, item No. 1 is also rounded off which discloses that funds were insufficient in the account of the accused when the cheque bearing number 779884 was presented for encashment. Therefore, the learned judge has made a specific observation at paragraph 9, page 6 of the judgment in C.C. 18424/03.

It is true that the accused had filed a complaint under section 2(d), Cr.P.C. against the complainant-Narayanappa in the year 2000, which was numbered as C.C. 2058/01 for the offense punishable under Section 138, N.I. Act which was subsequently registered as C.C. 31311/01. Summons had been issued for the said offense. The accused had appeared in the said case and it was posted to 09.04.2002 for recording his plea, on which day he was absent, and the complainant alone was present. A memo was filed on behalf of the complainant to withdrawn the said complaint in terms of section 257, Cr.P.C. as settled out of court, and therefore the complaint was dismissed as withdrawn. What is the settlement arrived at between the parties in the said case is not forthcoming, and whether any amount was paid by Narayanappa to the complainant Moodalappa is also not forthcoming.

Ex. D3 is stated to be the certified copy of the complaint filed before the XIII ACMM in C.C. 12444/04 by this accused-Moodalappa against Narayanappa on the basis of 2 cheques dated 27/07/2004 for Rs. 50,000 and Rs. 1.00 lakh respectively bearing numbers 821633 and 453777. Since both the cheques were returned on account of the account being closed, Moodalappa chose to file a comprehensive complaint in terms of section 2(d), Cr.P.C. which was registered as C.C. 12444/04. The contents of Ex. D3 would disclose that in the month of July 2004, Narayanappa had chosen to receive Rs. 50, 000 and Rs. 1.5 lakhs, and he had therefore issued 2 separate cheques, and the said amount had been received to carry out contract civil works. It is ununderstandable as to how Narayanappa would venture to avail loan from Moodalappa when he had already filed a complaint in C.C. 13772/03 which came to be subsequently registered as C.C. 18424/03.

It is also admitted by the accused-Moodalappa that the complaint filed by him came to be dismissed, and he has filed an appeal against the said judgment. What is the outcome of the said judgment is also not forthcoming. Anyhow it is forthcoming from Ex. P8-certified copy of the judgment in C.C. 13772/03 that it was a case filed by Moodalappa for the Section 138, N.I. Act. in relation to a cheque issued by Narayanappa in his favour for Rs. 50,000/-. The said complaint came to be dismissed on 16.11.2006, and this is admitted by D.W. 1 in his cross-examination. What exactly is the stage of the appeal filed as against the dismissal of the said case is also not forthcoming.

The complainant has specifically averred in his complaint that the accused had entrusted him to put up construction of Kuvempu complex in Bashveshwarnagar, Bangalore, and in that regard, he was expected to pay Rs. 4.00 Lakhs towards the cost of construction, and accused had issued a cheque for Rs. 1.00 Lakh, and his wife-Smt. Sarla had issued a cheque for Rs. 3 Lakh. This very accused has furnished a copy of the notice dated 15/09/2003 issued by Narayanappa calling upon him to pay Rs. 3.00 Lakhs towards the dues of construction and has averred that Rs. 12,83,715 is the total cost. Ex. P5 is the copy of the legal notice got issued to Smt. Sarla. The contents of the complaint have been reproduced in the examination-in-chief of Narayanappa, who is examined as P.W. 1. He has specifically asserted that the accused had entrusted him with the work of Kuvempu Complex. During the course of his cross examination, nothing is elicited from his mouth to probabilize his defense even remotely. The assertion of P.W. 1 that construction was entrusted to him is not at all denied.

Taking all these into consideration, the trial court has come to the conclusion about the existence of debtor and creditor relationship between the complainant and accused in relation to the cheque marked as Ex. P1. The trial court has assessed the entire evidence on the touchstone of probabilities.

Even the first appellate court, being final court of facts, has also dealt with the matter in detail in the light of evidence of the parties, both oral and documented, the learned judge has considered the aspect of forgery of Ex. P1 lodged by D.W. 1 and the inability of the accused to elicit anything from the mouth of P.W. 1 in regard to construction work. It is also forthcoming that the accused and the complainant knew each other very well and there is no enmity between the parties. Just because the accused had also filed a case in regard to another cheque, it would not be proper to dismiss the case of the complainant. In fact, once a case based on cheque was dismissed after contest and that is admitted by P.W. 1, nothing is placed on record as to what happened to other cases.

Both the courts below have adopted right approach to the real state of affairs and no illegality or perversity is found in the judgment of the trial court or the appellate court in convicting the accused.

Insofar as the sentence imposed is concerned, the learned judge of the trial court has not imposed any sentence of imprisonment and has only imposed fine. Twice the cheque amount could be imposed as fine. In fact, the learned judge has imposed only Rs. 1.75 lakhs, out of which, Rs. 5,000/- is ordered to be paid to the State and the remaining amount to the complainant. Taking into consideration the date on which cheque was issued and the date on which criminal proceeding culminated by way of conviction, the learned judge is justified in awarding Rs. 75,000/- as compensation apart from the cheque amount. Accordingly, no good grounds are made out to invoke revisional jurisdiction of this court under section 397, Cr.P.C.

In the result, the following order is passed:

ORDER

The revision petition is dismissed.