Sri R. Raju vs Sri N. Lokesh Reddy

V. Suri Appa Rao, J.—This Criminal Revision Petition is filed u/s 401 r/w Section 397 of the Code of Criminal Procedure against the judgment dated 03.04.2007 in Criminal Appeal No. 15049/2005 on the file of the XXXVI Additional City Civil and Sessions Judge (CCH-37), Bangalore whereby the Criminal Appeal filed by the Appellant against the judgment dated 29.03.2007 in C.C. No. 27931/2001 on the file of the Metropolitan Magistrate, Traffic Court, Bangalore, was dismissed confirming the conviction recorded u/s 255(2) of the Code of Criminal Procedure under Sections 138 and 142 of the Negotiable Instruments Act wherein the Appellant was sentenced to pay fine of Rs. 5,000/- in default to undergo simple imprisonment for three months. The Appellant was further directed to pay compensation of sum of Rs. 3,50,000/- to the complainant/Respondent, in default of payment of compensation the Appellant shall undergo simple imprisonment for two years.

Aggrieved by the judgment dated 03.04.2007 in Criminal Appeal No. 15049/2005 the Appellant filed this Criminal Revision Petition.

The relevant facts leading to this petition are as follows:

The Appellant had issued a cheque for Rs. 2,50.000/- drawn on State Bank of Mysore, Lingarajapuram Branch, Bangalore in favour of the Respondent-complainant who presented the same for encashment and the said cheque was dishonoured on 10.01.2001 with an endorsement as "Account Closed". The Respondent - complainant therefore issued legal notice to the Appellant on 16.01.2001 through registered post acknowledgment due and under Certificate of posting, but the notice sent through registered post has been returned as "refused" and the notice sent through UCP has been served upon the Appellant and as the Appellant did not pay the amount covered under the cheque, the Respondent filed a complaint u/s 200 Code of Criminal Procedure.

The Appellant pleaded not guilty for the offences under Sections 138 of the Negotiable Instruments Act. The Trial Court examined PWs 1 to 3 and marked Ex.P1 to P7. The Appellant examined as DW-1 and also examined DW-2 and marked Ex.D1 to D15. On the basis of oral and documentary evidence, the Trial Court found the accused guilty u/s 138 and 148 of the Negotiable instruments Act and passed the above order of conviction and sentence.

Aggrieved by the judgment of conviction the Appellant filed a Criminal Appeal No. 15049/2005 and after hearing the learned Counsel of both the parties, the learned City Civil and Sessions Judge dismissed the appeal filed by the Appellant confirming the conviction recorded by the trial Court.

Being aggrieved by the judgment dated 03.04.2007 confirming the judgment in C.C. No. 27931/2001 on the file of Metropolitan Magistrate, Bangalore, the Appellant who is the Respondent in trial Court and Appellant in Lower Appellate Court filed this Criminal Revision Petition.

Heard the learned Counsel for the Appellant and also the Respondent. Perused the evidence on record and the documents relied upon by both the parties.

The point for consideration in this Criminal Revision Petition is:

Whether there are any grounds to interfere with the judgment of Conviction recorded by the trial Court which was confirmed by the First Appellate Court ?

The Appellant contended before the trial Court as well as the First Appellate Court that statutory notice was not served on him as required u/s 138 of Negotiable Instruments Act before lodging the complaint. Both the Courts below have answered this point against the Appellant. Admittedly, notice sent to the Appellant through registered post acknowledgment due was returned undelivered with an endorsement not claimed''. The Respondent/complainant also taken out notice to the Appellant under certificate of posting -Ex.P7. Admittedly, both the notices were sent to the same address where the Appellant is residing.

The Respondent contended that the Appellant has not claimed the notice sent under registered post purposefully to avoid receipt of the notice. During the examination u/s 313 of Code of Criminal Procedure. for question No. 6 the Appellant answered affirmative that having known the contents of the legal notice deliberately refused to reply. The Trial Court as well as the Appellate Court by following the judgment of the Apex Court has observed that the notice returned as ''not claimed'' amounts to, service of notice.

The Appellant further contended that he had borrowed only Rs. 35,000/- from the Respondent/complainant and he gave signed blank cheque as security to the said amount. Subsequently, he paid the amount of Rs. 35,000/-. The Respondent/complainant himself used the blank cheque without returning the same after receiving the amount of Rs. 35,000/-. He has adduced the evidence on some loan. The trial Court as well as the First Appellate Court disbelieved the version of the Appellant on the ground that in the cross-examination the Appellant has admitted that he issued Ex.P1 - Cheque and that he himself filled the cheque and signed it. Both the Courts below accepted the evidence of the Appellant when he himself filled up the cheque and signed and issued the same to the complainant, the contention of the accused that he gave blank cheque as security to the amount of Rs. 35,000/-cannot be believed. The Appellate Court has clearly opined that when the Appellant himself has admitted that the figure and the handwriting of amount was filled by the himself, the contention of the Appellant that he issued the blank cheque and the same was utilised by the Respondent/complainant for the purpose of this case cannot be believed.

Unless there are compelling circumstances, the Revisional Court cannot. reappreciate the evidence recorded by the trial Court and interference with it is not permissible. The Revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is manifest error or point of law.

In the instant case, though the accused has contended that he gave blank cheque to the Respondent/complainant and that the Respondent has misused the same. The clear admission by the Appellant shows that he himself filled up the contents of Ex.P1 - cheque and gave it to the Respondent/ complainant. While accepting the same both the Courts below observed that if at all the cheque - Ex.P1 is issued as security for the earlier amount of Rs. 35,000/-and the Appellant paid the amount of Rs. 35,000/- the Appellant would not keep quiet without taking any steps against the Respondent/complainant for return of the blank cheque issued by him as security. When the Appellant himself admitted that the contents of the cheque - Ex. P1 which was written in his own handwriting the question of misusing the cheque by the Respondent does not arise.

Before drawing the presumption u/s 139 of the Negotiable Instruments Act, it is the duty of the Court to see whether or not the complainant has discharged his initial burden as to existence of legally enforceable debt. In Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, the Hon''ble Supreme Court held that "an accused for discharging the burden of proof placed upon him under a stature need not examine himself. He may discharge his burden on the basis of the materials already brought on record. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different"

In this case, the Appellant himself was examined as DW-1 and he has clearly admitted in the evidence that contents of Ex.P1 - cheque is written by his own handwriting. Therefore, the Courts below rightly disbelieved the contention of the Appellant that he issued blank cheque as security for the earlier debt of Rs. 35,000/-15. Both the trial Court and first appellate Court have concurrently arrived at the truth not perfunctorily but by a process of well-grounded reasoning it would not be just and proper for tins Court to interfere with the finding of fact. Therefore, the judgments of the trial Court as well as the Appellate Court are hereby confirmed and this Criminal Revision Petition is liable to be dismissed.

Accordingly, this Criminal Revision Petition is hereby dismissed.