N.H. Panchakshari vs H.N. Sowbhagya

B.V. Pinto, J.—This Revision Petition is filed challenging the Judgment dated 15.12.2009 passed by the Additional Sessions Judge at Hassan in Crl. A. No. 23/2008 dismissing the appeal filed against the order dated 24.1.2008 passed by Principal Civil Judge (Jr. Dn.) & JMFC, Arsikere in C.C. No. 537/2004, in which the learned Magistrate was pleased to convict the petitioner for the offence u/s 138 of the N.I. Act and to sentence him to undergo S.I. for a period of one year and to pay a fine of Rs. 5,000/- in default of payment of fine to undergo further S.I. for a period of three months with a further direction to pay compensation of Rs. 1,50,000/- to the complainant. It is the case of the Complainant that the accused has issued cheque bearing No. 456160 for a sum of Rs. 50,000/- on 25.5.2004; cheque bearing No. 456161 for a sum of Rs. 50,000/- on 10.6.2004 and cheque bearing No. 456162 for a sum of Rs. 25,000/- on 10.6.2004. The cheques issued in favour of the Complainant when presented for payment were dishonoured for want of ''Sufficient funds''. Thereafter, the Complainant has issued a notice u/s 138 of the N.I. Act both by way of R.P.A.D. and Certificate of Posting. While the notice sent by Certificate of posting was served on the petitioner, the notice sent by R.P.A.D. has been returned with endorsement "Not Claimed". Hence, returned to sender as per Ex. P8. Thereafter, the Complainant has filed this complaint before this Court.

The trial Court took cognizance of the offence and issued process to the accused. Thereafter, the accused appeared before the Court and pleaded not guilty to the accusations made against him. The complainant examined herself as PW. 1 and produced documents as per Exs. P1 to P12. The defence of the accused was one of total denial. He has stated that he has given a blank cheque in favour of one Jagadeesh. The said blank cheque was misused by the Complainant and presented before the Court. The accused has thereafter examined himself as DW. 1 and one M. Shivakumar as DW. 2 and one Sathyanarayana as DW. 3 and produced Exs. D1 to D3. The trial Court after hearing the Complainant and the accused held that the complainant has proved the case against the accused for the offence u/s 138 of the N.I. Act and convicted and sentenced him as aforesaid. Being aggrieved by the order of conviction and sentence, the petitioner has filed an appeal before the Additional Sessions Judge at Hassan in Crl. A. No. 23/2008.

Learned Sessions Judge after hearing both the sides, passed a Judgment on 15.12.2009 dismissing the appeal filed by the appellant/petitioner thus confirming the order passed by the learned Magistrate. It is this order of conviction and sentence, which has been challenged by the petitioner in this Criminal Revision Petition.

Heard Sri K.J. Sagar, learned Counsel appearing for the petitioner. Though the matter was posted for final hearing, Counsel for the respondent and the Respondent are absent.

Sri K.J. Sagar, learned Counsel appearing for the petitioner submits that the petitioner was not residing in the address given in Ex. P8 and that the address of the house mentioned in Ex. P8 is not existing. The accused has examined DW. 3-Sathyanaraynana, who has categorically stated before the Court that he is working as the Chief Officer of the Arsikere Town Municipal Council and that there are no municipal quarters on the Telephone Exchange Road. Hence, he submits that the complainant has not complied with the requirements of Section 138 of the N.I. Act in sending the notice to the accused and therefore the entire proceedings are void. Hence, he submits that the accused is entitled for an order of acquittal. He also submits that the accused had closed his account in the year 1999 even prior to presentation of the cheque. Hence, he submits that the order of conviction is bad in law.

I have perused the materials on record, more particularly documents at Exs. P1 to P8. Ex. P1 is a cheque for a sum of Rs. 50,000/-; Ex. P2 is a cheque for a sum of Rs. 25,000/- and Ex. P3 is a cheque for a sum of Rs. 50,000/- all the cheques are written in the name of Smt. H.N. Soubhagya, who is the respondent herein. Exs. P4 to P6 are the bank endorsements, which indicate that accounts are closed with reference to the aforesaid cheques. Ex. P7 is the copy of the notice sent to the petitioner by name H.N. Panchakshari, L.I.C. Agent, Telephone Exchange Road, Municipal Quarters, Arsikere calling upon him to pay the cheque amount. Ex. P7(a) is the postal receipt for having sent the notice under Certificate of Posting to the petitioner. Ex. P8 is the cover in which the address is given as "N.H. Panchakshari, L.I.C. Agent, Telephone Exchange Road, Municipal Quarters, Arsikere" and it contains the endorsement in red ink "Not claimed hence r/s." [r/s.-returned to sender]. Ex. P10 is the visiting card of the petitioner, in which the address of the petitioner is given. Ex. P11 is an identity card of the petitioner, in which, the address is given as "N.H. Panchakshari, L.I.C. Agent, Telephone Exchange Road, Lakshmipura, Arsikere"

In the evidence of the accused, who is examined as DW. 1, he has admitted in the cross examination that he was residing in the address given above until he filed a Divorce Petition against his wife. Under the circumstances, the contention raised by the petitioner that notice has not been issued to him cannot be accepted. The petitioner has categorically stated in his evidence before the Court that his wife has filed a Divorce case against him and that his wife is residing in the Telephone Exchange Road, Arsikere in the Siddamariyappa Building. Before filing the divorce petition himself and his wife were residing in Siddamariyappa Building together. He has also stated that Siddamariyappa Building was belonging to the Arsikere Town Municipality Council. He has also further admitted that in Arsikere Town, the Telephone Exchange road is the only road on the side of which Siddamariyappa Building is situated.

On reading of the above evidence, it is clear that though the respondent was residing in the address given in Ex. P8, he has not claimed the notice issued by the Complainant. He has not examined any person to rebut the endorsement of the postman stating that the petitioner has not claimed the notice. He has not even got summoned the postman to prove his case that the said notice was not tendered to him. Under the circumstances, it is clear that not only the complainant has issued the notice u/s 138 of the N.I. Act, but also it is held that the said notice was tendered to the petitioner and that the petitioner has not claimed the notice. Hence, there is a valid service of notice u/s 138 of the N.I. Act.

Since no other grounds are urged before me and the only ground urged by the learned Counsel is answered in the negative, I am of the considered opinion that the order of the trial Court as well as the order in appeal is in accordance with law. There is neither perversity or illegality in the order of conviction passed by the learned Magistrate, so also the learned Sessions Judge in dismissing the appeal. So far as the sentence is concerned, it is seen that the learned Magistrate has sentenced the petitioner to undergo S.I. for one year. However, in view of the fact that the proceedings u/s 138 of the N.I. Act are quasi-civil in nature, the sentence of S.I. for one year is set aside and the other part of the Judgment is kept intact. Hence, the following order:-

Petition is partly allowed. The order of conviction for an offence u/s 138 of the N.I. Act is confirmed. The order of sentence imposing S.I. for a period of one year on the petitioner is hereby set aside. The order of sentence of fine of Rs. 5,000/- and the default sentence is maintained. The order regarding payment of penalty of n,50,000/- is also confirmed in default to pay the penalty, to suffer S.I. for six months.

It is submitted by the learned Counsel for the petitioner that a sum of Rs. 50,000/- has been deposited on 24.3.2008 by the petitioner. The said sum of Rs. 50,000/- is directed to be paid to the Complainant forthwith The petitioner is given one month''s time to deposit the balance amount of Rs. 1,00,000/- before the Court or to pay to the respondent/complainant under intimation to the Court, failing which, the trial Court is directed to execute the sentence in accordance with law.