- 1 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 1629 OF 2016 BETWEEN: 1. SRI S. KIRAN S/O. SOMAPPA AGED ABOUT 37 YEARS R/AT SOMESHWARAPALYA MULABAGAL TOWN, MULABAGAL, THE RESPONDENT HAS MENTIONED THE ADDRESS OF THE PETITIONER IN COMPLAINT AS R/AT THOTALAPALYA MULABAGAL TALUK KOLAR DISTRSICT-563 131. …PETITIONER (BY SRI. NANJUNDA GOWDA M.R., ADVOCATE) AND: 1. SRI T. RAMAPPA S/O. CHIKKA THIMMAIAH AGED ABOUT 62 YEARS R/O. ASALI ATHIKUNTE VILLAGE AVANI HOBLI, MULBAGAL TALUK KOLAR DISTRICT-563 131. …RESPONDENT (BY SRI. V. VINOD REDDY, ADVOCATE [ABSENT]) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED IN C.C.NO.10/2010 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, MULABAGAL ON 25.09.2014 AND ALSO SET ASIDE THE JUDGMENT AND ORDER DATED 08.11.2016 PASSED IN CRL.A.NO.64/2014 ON THE FILE OF THE I ADDITIONAL SESSIONS JUDGE, KOLAR. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard learned counsel for the petitioner and learned counsel for the respondent is absent. 2. This petition is filed challenging concurrent finding of conviction and sentence passed against the petitioner for the offence punishable under Section 138 of N.I. Act. 3. The factual matrix of case of the complainant is that in the first week of February, 2009, the accused has purchased 500 bags of potatoes at the rate of Rs.400/- per bag which includes 150 bags potatoes of one Chandrashekar of Mulbagal Town and 150 bags belonging to M. Krishnapaa of Asali Athikunte Village. The accused has purchased potatoes worth of Rs.2,00,000/- on credit basis agreeing to pay the amount on or before 20.03.2009. As a security of the said amount, accused has given a post dated Cheque dated 20.03.2009. The complainant has demanded payment of money from the accused and to get back his Cheque. The accused sought for some more time. With trust and hope, the complainant waited - 3 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 till 23.07.2009. He also demanded the amount by meeting the accused on the said date, but the accused has failed to pay the amount. Therefore, the complainant has presented the Cheque on 24.07.2009 for encashment at Kolar District Credit Co- operative Bank Ltd., Mulbagal Branch, which was sent for collection through SBM, Mulbagal to Canara Bank, Mulbagal. The Canara Bank, Mulbagal had issued ‘memorandum of Cheques unpaid’ with the shara ‘funds insufficient’. Thereafter, the complainant has issued a notice on 27.07.2009 to the accused through RPAD and also through Certificate of Posting. The accused knowing well about the notice, had not received the notice through RPAD which was returned with the shara ‘absent for 7 days’. Hence, filed the complaint and the Trial Court taken cognizance and proceeded to record the evidence. 4. In order to prove his case, the complainant has been examined as P.W.1 and examined two witnesses as P.Ws.2 and 3 and the Postman as P.W.4 and relied upon the documents at Exs.P1 to P10. On the other hand, the accused was subjected to 313 statement and examined himself as D.W.1 and examined one witness as D.W.2 and got marked the documents as Exs.D1 to D3. - 4 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 5. The Trial Court on considering both oral and documentary evidence placed on record, comes to the conclusion that notice sent trough RPAD has returned with endorsement he was absent for 7 days and also P.W.4, Postman was examined, in order to show that he went to the house of the petitioner and he was absent. Apart from that, even voter list was furnished and the same is marked as Ex.P10 and it discloses the very same address to which the notice was given. Though the accused claims that he was not residing in the said address, for having made the payment of rent also, nothing is placed on record. Apart from that, the Trial Court also taken note of General Clauses Act, 1897 and also taken note of presumption that, when notice was sent through RPAD as well as UCP and UCP was served, the Trial Court comes to the conclusion that accused categorically admits that all the family members are casting the vote in the address which is disclosed in Ex.P10. Hence, comes to the conclusion that notice was served and he did not give any reply and also not rebutted the evidence of complainant by placing any preponderance of probabilities, though he contend that Cheque was given in favour of D.W.2 and the same was not given in favour of - 5 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 complainant and the same was not substantiated, though examined D.W.2 and convicted the petitioner. 6. Being aggrieved by the order of the Trial Court, an appeal is filed before the First Appellate Court. The First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record, comes to the conclusion that the accused has failed to rebut the initial presumption under Section 118(A) and 139 of N.I. Act and the evidence on record is suffice to hold that Cheque at Ex.P2 indeed issued by the accused in favour of the complainant towards discharge of legally enforceable debt or liability. The First Appellate Court also taken note of the judgment of the Apex Court in the case of K. BHASKARAN VBS. SANKARAN VAIDHYAN BALAN & ANR. reported in (1999) 7 SCC 510. Having considered the said judgment also, observed that legal notice issued by the complainant has been returned with shara ‘the addressee absent continuously for 7 days’ and also taken note of General Clauses Act, 1897 which was relied upon by the Trial Court. Once he admits the address in terms of Ex.P10, though denies the address mentioned in the legal notice, not accepted the contention of the petitioner and confirmed the - 6 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 judgment of the Trial Court. Being aggrieved by the concurrent finding of the Trial Court and the First Appellate Court, the present petition is filed before this Court. 7. Learned counsel for the petitioner would vehemently contend that the Trial Court failed to consider the evidence of P.W.1 and D.W.2, particularly, D.W.2, who purchased auto rickshaw and having issued six Cheques, out of that five Cheques are returned and one Cheque is misplaced and the same has been misused. Learned counsel would vehemently contend that inspite of document of Ex.D3 is placed before the Court i.e., RTC Extract, the same belongs to the State, though he claims that he was growing potatoes and the same is not in his name and with regard to the source of income also, no document was produced before the Trial Court. 8. I have heard learned counsel for the petitioner and learned counsel for the respondent is absent and in his absence itself, matter was taken up for consideration. Having heard learned counsel for the petitioner and having considered the grounds urged in the revision petition, the points that would arise for consideration of this Court are: - 7 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 (i) Whether both the Courts committed an error in convicting and confirming the order of the Trial Court? (ii) Whether the order of Trial Court and the confirmation made by the First Appellate Court suffers from its legality and correctness and it requires interference of this Court by exercising revisional jurisdiction? (iii) What order? Point Nos.(i) & (ii) 9. Having heard learned counsel for the petitioner and also relying upon the evidence of the witnesses, particularly evidence of D.W.2, he says that accused, who purchased auto rickshaw in 2008, gave six cheques and he returned the said auto rickshaw, since he could not sell the same and he gave back five Cheques, but he could not return another Cheque and the same was misplaced and the said Cheque issued in favour of P.V.Srinivasa was misused by this complainant. Learned counsel for the petitioner not disputes issuance of Cheque. But, only contention was taken that Cheque was given in favour of P.V. Srinivasa and though examined the witness P.V. Srinivasa as D.W.2 and with regard to the transaction between the complainant and the accused, nothing is elicited from the - 8 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 mouth of P.W.1. The very case of the P.W.1 is that he sold potato to the accused and in turn, he gave Cheque and the Cheque was returned and the same not honoured. 9. The main contention of learned counsel for the petitioner is that no notice was served, but the fact that complaint examined P.W.4-Postman, who went to the address of the accused for 7 days and he returned since he was absent for 7 days is not in dispute. Though answer is elicited that intimation was not delivered to the family members, but he categorically says that he went to the house of the petitioner and some persons were there and this petitioner was not there. It is important to note that notice was sent to the same address through Certificate of Posting and the same was not returned. Apart from that, when the address was issued by the petitioner, he was confronted with document Ex.P10 and he categorically admits his name and the names of his family members as shown in the very document and admits that he used to caste vote in respect of the very same address. The photo of the accused was confronted in terms of Ex.P10(a) and he admits the same. When such being the case, the Trial Court rightly invoked General Clauses Act, 1897. - 9 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 10. Apart from that, it is the evidence before the Court that the complainant examined himself as P.W.1 and one witness by name P.V. Srinivasa was examined as D.W.2 and the very theory that he gave Cheque in favour of P.V. Srinivasa is not substantiated and categorically admits that even after purchasing auto rickshaw, the same is not transferred to the name of the petitioner and even D.W.2 also admits that he also did not get the vehicle transferred to his name. But the only contention is that he has not given the Cheque to the complainant and he gave the Cheque only to P.V. Srinivasa and with regard to misplacing of Cheque, the said P.V. Srinivasa has not given any complaint. Hence, it is only a self-styled evidence by examining the evidence and examination witnesses D.Ws.1 and 2 is not the preponderance of probabilities to accept the case of the petitioner. In the absence of logical evidence before the Court with regard to the issue involved in the case on hand, the said contention of the learned counsel cannot be accepted. 11. Learned counsel for the petitioner would contend that Ex.D3 is RTC Extract and the same stands in the name of - 10 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 the State and not in the name of the complainant, though he deposed that he was growing potato in the said survey number and RTC standing in the name of the State cannot be a ground to come to a conclusion that the petitioner was not growing potato. Hence, it is very clear that the petitioner sold potato boxes to the accused and he in turn gave the Cheque and also no explanation under what circumstance the Cheque came into the custody of the complainant. It is also not the case of D.W.2 that he gave Cheque in favour of the complainant and his case is that Cheque was misused and he could not return the subject matter of Cheque, but nothing is placed on record to substantiate the same. When such being the case, I do not find any error committed by the Trial Court and the First Appellate Court and the Court can exercise the revisional jurisdiction if there is any perverse finding and unless the same suffers from its legality and correctness and no such circumstance is warranted in the case on hand and both the Courts have not committed any error in passing such an order. Accordingly, I answer point No.(i) as ‘negative’. - 11 - NC: 2025:KHC:3033 CRL.RP No. 1629 of 2016 Point No.(ii) 12. In view of the discussion made above, I pass the following: ORDER The criminal revision petition is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 75