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2014 Supreme(Kar) 1113
IN THE HIGH COURT OF KARNATAKA
P.D. Waingankar, J.
Venkatesh Prasad – Appellant
Vs.
Subray V. Bhat – Respondent
Crl. Revn. Petn. No. 452 of 2010
Decided On : 21-03-2014
For the Appellant :A.V. Ramakrishna, Advocate
For the Respondent:Rajkumar, Advocate
The main legal point established in the judgment is the presumption under Section 139 of the N.I. Act, the burden of proof on the accused, and the deemed service of notice under Section 27 of the General Clauses Act, 1827.
Headnote:
N.I. Act - Conviction under Section 138 - Summary of Acts and Sections: N.I. Act, Section 138 - The court discussed the presumption under Section 139 of the N.I. Act, the existence of legally enforceable debt or liability, and the burden of proof on the accused. The court also considered the service of notice to the accused under Section 27 of the General Clauses Act, 1827.
Fact of the Case:
The petitioner was convicted under Section 138 of the N.I. Act for dishonoring cheques issued as security in a real estate transaction. The complainant alleged that the accused failed to pay the promised amount after canceling the agreement and issued three cheques, which were dishonored.
Finding of the Court:
The court found that the accused failed to rebut the presumption under Section 139 of the N.I. Act and did not provide evidence to support his defense. The court also held that the notice sent to the accused was deemed to have been served under Section 27 of the General Clauses Act, 1827.
Issues: The issues included the nature of the cheques issued by the accused, the existence of a legally enforceable debt or liability, and the proper service of notice to the accused.
Ratio Decidendi: The court emphasized the presumption under Section 139 of the N.I. Act, the burden of proof on the accused, and the deemed service of notice under Section 27 of the General Clauses Act, 1827.
Final Decision: The Criminal Revision Petition was dismissed, and the conviction under Section 138 of the N.I. Act was upheld.
P.D. Waingankar, J.
By judgment dated 21.3.2009 in C.C. No. 7353/2008 on the file of the XVI Additional Chief Metropolitan Magistrate, Bangalore, the petitioner has been convicted for the offence punishable under Section 138 of N.I. Act and has been sentenced to pay a fine of Rs. 37,00,000/-, in default, to undergo Simple Imprisonment for a period of one year and ordered to pay a sum of Rs. 36,75,000/- as compensation to the respondent-complainant out of fine amount. The judgment of conviction and sentence has been confirmed by the Fast Track Court-I, Bangalore City in Criminal Appeal No. 332/2009 by judgment dated 22.12.2009. Challenging the judgment passed by both the Courts below and questioning its legality and correctness, this revision petition is preferred by the petitioner under Section 397 r/w Section 401 of Cr.P.C. The petitioner was the accused before the Magistrate and the respondent was the complainant. The case of the complainant as made out before the Magistrate is that the complainant and accused are friends since many years. The accused was engaged in real estate business at Peenya area. He induced the complainant to purchase a property bearing No. 480/A2, measuring 28,557 sq.ft. consisting of constructed factory building with A.C. roofing in Sy. No. 88 of Nellakaderenahalli Village, 4th Phase, Peenya Industrial Area, Yeshwanthpura Hobli, Bangalore North Taluk for a total consideration of Rs. 1,49,00,000/-. The complainant entered into an agreement with the accused on 29.8.2005 and in pursuance of the agreement, he paid Rs. 25,00,000/- on 29.8.2005, Rs. 12,50,000/- on 17.9.2005, Rs. 12,50,000/- on 19.10.2005 totally amounting to Rs. 50,00,000/- to the accused. But the Sale Deed could not be executed because of non-transferable title of the accused over the property. Instead of executing the sale deed, the accused went on demanding more amount in view of the considerable increase in the value of the land in Bangalore. As such, they mutually cancelled the agreement in view of the fact that the accused agreed to pay Rs. 80,00,000/- to the complainant in four installments. Accordingly, the accused paid a sum of Rs. 50,00,000/- and towards the payment of balance amount of Rs. 30,00,000/-, the accused issued three cheques drawn on Indian Overseas Bank, Malleswaram Branch, Bangalore dated 15.11.2006, 25.11.2006 and 5.12.2006 for Rs. 10,00,000/- each. On presentation of the cheques on 10.12.2006, all the cheques returned with an endorsement "Not Arranged For". So, the complainant got issued a legal notice on 2.1.2007 to the accused through RPAD and by Under Certificate of Posting. In spite of receipt of the notice, the accused neither replied the notice nor paid the cheque amount. As such, a complaint came to be filed against the accused for the offence punishable under Section 138 of N.I. Act.
2. In response to the notice, the accused appeared before the Magistrate and denied the charge levelled against him. The complainant in order to establish the charge examined himself as PW-1 and marked Exs. P1 to P10. The accused, on the other hand, has not led defence evidence except marking Ex. D-1 in the cross-examination of PW-1. Learned Magistrate upon hearing both the learned Counsel appearing for the parties and upon consideration of the entire material placed on record held that the accused committed an offence punishable under Section 138 of N.I. Act, which resulted in his conviction and sentence by the Magistrate by judgment dated 21.3.2009. The Criminal Appeal filed by him against his conviction and sentence came to be dismissed on merits by the learned Sessions Judge by judgment dated 22.12.2009. Aggrieved by the judgment passed by both the Courts below, the revision petitioner is before this Court.
3. I have heard the learned Counsel for the revision petitioner and the respondent. Perused the records secured from the Courts below.
4. The learned Counsel for the petitioner would submit that three cheques in quest
