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TMI Blog2021 (5) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 04.08.2015, dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the trial Court dated 20.03.2013, in C.C. No. 191/2009. Aggrieved by the said judgment, the accused has preferred this revision petition. 3. The summary of the case of the complainant in the trial Court was that the accused is his relative and also very close friend since a long time. The accused though was originally a resident of Kallalli village of Sagar Taluk, but, presently residing at Sagar. The accused was working as a Karnataka Electricity Board Contractor and doing High Tension Line contract under the business name and style of "Adi Constructions". The accused had undertaken a sub-contract work of electricity with one M/s. Able Touch of Bengaluru, who was the main contractor at Karnataka Power Transmission Corporation Limited. In the said contract work, the accused suffered some financial difficulty. In that regard, he had availed a loan on four occasions amounting in total Rs. 3,70,000/-. Though he had agreed to repay the said amount within the month of June, 2008, but, he neither repaid the cheque amount nor complied his sub-contract work. However, he went on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... simple imprisonment for a period of six months and to pay a fine of Rs. 5,19,300/-, in default, to undergo simple imprisonment for a period of six months. Challenging the said judgment of conviction passed by the trial Court, the accused preferred an appeal in Criminal Appeal No. 69/2013, before the learned Sessions Judge's Court, which, after hearing both side, by its impugned judgment dated 04.08.2015, dismissed the appeal filed by the accused, while confirming the impugned judgment of conviction and order on sentence passed by the trial Court. Being aggrieved by the judgments of conviction and order on sentence, the accused has preferred this revision petition. 6. The trial Court and Sessions Judge's Court's records were called for and the same are placed before this Court. 7. Though the respondent has been served, but, remained unrepresented. Considering the nature of the litigation, to defend the interest of the respondent, this Court by its detailed order dated 31.03.2021, appointed learned counsel Smt. Archana K.M. as Amicus Curiae for the respondent. As such, the respondent is being represented by the learned Amicus Curiae. 8. Heard the arguments from both s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon him to pay the cheque amount. A copy of the legal notice alleged to have been sent by him has been produced by the complainant at Ex. P-4 and the registered post receipt and Certificate of Posting are also produced by him at Exs. P-5 and P-6 respectively. The said legal notice bears the address of the accused as the "Contractor, Adi Constructions, C/o. Behind Chennaiah Patel Saw Mill, Sagar". To the same address, however, with addition of one more detail in the address as 'L.B. Nagar, Sagar', was added in the registered post cover and the Certificate of Posting, accordingly, the article was sent. As stated by PW-1 and as evidenced in the returned postal cover, which is at Ex. P-7, the said postal article returned to the sender with the postal shara 'Refused - returned to the sender'. According to PW-1, one more copy of the legal notice sent by him under Certificate of Posting has been duly served upon the accused, however, the accused has denied the service of the said notice upon him. In this regard, the accused, apart from putting several suggestions in the cross-examination of PW-1, has also entered himself into witness box and got examined as DW-1 and conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced his own statement of Bank account, which shows his address at Sagar and also shows that he is running an establishment under the name and style "Adi Constructions", it is clear that, though he hails from a village called Kallalli in the very same Taluk where he has got a house, but, he is doing his business in the Taluk Headquarters i.e., in Sagar, under the name and style of "Adi Constructions". Incidentally, the legal notice was also sent to the accused to the said proprietaryship concern "Adi Constructions" at Sagar. Therefore, the evidence of DW-1, coupled with documents at Exs. D-1 to D-5 though would show that the permanent address of the accused is of Kallalli village, but, it does not mean that he is not carrying on business in the Taluk Headquarters at Sagar, in which, Kallalli village is a part and doing the business under the name and style of "Adi Constructions". 15. The notice sent to the said "Adi Constructions", which is the business concern of the accused and also bearing the name of the accused on the postal article, has been returned with the shara 'Refused', as such, it was sent back to the sender. Simultaneously, the complainant has also sent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 provides that the section shall not apply unless the drawer of the cheque fails to make the payment within 15 days of the receipt of the said notice. To repeat, the proviso is meant to protect honest drawers whose cheques may have been dishonoured for the fault of others, or who may have genuinely wanted to fulfill their promise but on account of inadvertence or negligence failed to make necessary arrangements for the payment of the cheque. The proviso is not meant to protect unscrupulous drawers who never intended to honour the cheques issued by them, if being a part of their modus operandi to cheat unsuspecting persons. 16. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch alleged financial incapacity of the complainant at the earliest point of time. The accused has not sent any reply to the legal notice at Ex. P-4, taking any such contention. Even in the cross-examination of PW-1 also, no such contention regarding the alleged financial incapacity of the complainant was taken by the accused. On the other hand, some more details were elicited regarding the financial source of the complainant. The complainant as PW-1 has stated that he has worked along with accused as a Sub-Contractor. He, joined by his elder brother, has borrowed loan and has given to the accused on few occasions. He has further stated that while he was working as a Sub-Contractor under the accused, about fifty to sixty workers were working under him. He also stated that he is an Income-tax assessee and a licenced contractor. He specifically stated that the loan of Rs. 3,70,000/- given by him to the accused was withdrawn from his account. These statements made by the complainant since have not been further denied or disputed from the accused side, the evidence of PW-1 go to show that he is an Income-tax assessee and also a licenced Electrical Sub-Contractor, who at one point of ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med by the learned Sessions Judge's Court, warrants interference by this Court. 21. Accordingly, I proceed to pass the following order: ORDER The Criminal Revision Petition is partly allowed. The judgment of conviction passed by the learned Addl. J.M.F.C., Sagar, in C.C. No. 191/2009, dated 20.03.2013, holding the accused guilty of the offence punishable under Section 138 of N.I. Act, which was confirmed by the learned V. Addl. District & Sessions Judge, Shivamogga, sitting at Sagar, in Criminal Appeal No. 69/2013, dated 04.08.2015, is hereby confirmed. However, the order on sentence of imprisonment passed by the trial Court, which was confirmed by the Sessions Judge's Court, is set aside and the sentence of fine of Rs. 5,19,300/- is modified and reduced to Rs. 4,05,000/-, in which, a sum of Rs. 4,00,000/- is to be payable to the complainant as compensation under Section 357 of Cr.P.C. and remaining amount of Rs. 5,000/- is payable to the State. The default sentence ordered by the trial Court ordering the accused to undergo simple imprisonment for a period of six months in case he commits default in payment of the fine amount remains unaltered. The Court while acknowle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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