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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION No.50 OF 2015
BETWEEN :
Puttaswamy,
S/o. Puttegowda,
Aged about 63 years,
R/at Kogilur Village,
Chunchanakatte Hobli,
K.R.Nagara Taluk,
Mysore District-571617.
...Petitioner
(By Sri. Chandrashekara K.A., Advocate)
AND :
Krishnegowda M.K.,
S/o. Keseregowda,
Aged about 58 years,
R/at Makodu Village,
Ravandur Hobli,
Periyapatana Taluk,
Mysore District-571107.
...Respondent
(By Sri. N.V.Nagesh, Advocate for
Sri. P.M.Siddamallappa, Advocate)
This Criminal Revision Petition is filed under Section
397 read with 401 of Cr.P.C. praying to set aside the order
of conviction and sentence dated 02.04.2014 passed by
learned Additional Senior Civil Judge and JMFC, Hunsur sit
at Periyapatna, in C.C.No.23/2014 and confirmed by the
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Learned III Additional Sessions Judge at Mysore by the
judgment and order dated 15.11.2014, vide
Crl.A.No.95/2014, for the offence punishable under
Sections 138 of N.I.Act and to Acquit the petitioner.
This Criminal Revision Petition coming on for Final
Hearing, this day, the Court made the following:
ORDER
Heard both sides.
2. This revision petition is filed against the order passed by the learned Senior Civil Judge and JMFC, Hunasuru sitting at Periyapatna in C.C.No.23/2014 dated 02.04.2014 whereby the revision petitioner/accused was convicted for the offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'N.I.Act' for short) and ordered to pay a sum of Rs.55,000/- as compensation to the complainant/respondent and Rs.2,000/- towards fine to the State and also to undergo simple imprisonment for a period of six months, which was confirmed in Crl.A.No.95/2014 on the file of the III Additional Sessions Judge, Mysuru vide judgment dated 15.11.2014.
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3. The brief facts which are necessary for disposal of the revision petition are as under:
A complaint came to be filed under Section 200 of Cr.P.C. read with Section 138 of N.I.Act stating that the revision petitioner/accused has borrowed a sum of Rs.30,000/- for his personal necessities on 13.07.2011 and in order to repay the said loan amount, he had issued a cheque on 13.07.2011 bearing No.067840 in favour of the complainant drawn on State Bank of Mysuru, Haleyur Branch, K.R.Nagar. It is further contended that the cheque on presentation came to be dishonored and statutory legal notice is issued; which came to be returned with an endorsement 'unclaimed' and the accused has not repaid the amount within 15 days of the issuance of notice; whereby he has committed an offence punishable under Section 138 of N.I.Act.
4. Before the learned Magistrate, presence of the accused was secured and plea was recorded and the accused did not plead guilty and as such the trial was held. 4
5. In order to prove the complaint averments the complainant got examined himself as PW1 and another witness as PW2 and 6 documents were exhibited and marked as Ex.P.1 to P.6. All the incriminating circumstances were put to the accused at the time of recording his statement as contemplated under Section 313 of Cr.P.C. Thereafter the accused got examined himself as DW1, but no documents were marked on his behalf.
6. Learned Magistrate on cumulative consideration of the oral and documentary evidence on record convicted the accused and ordered that a sum of Rs.57,000/- as compensation and six months simple imprisonment for the offence punishable under Section 138 of N.I.Act. Out of the fine amount a sum of Rs.55,000/- was ordered to be paid as compensation to the complainant as contemplated under Section 357(3) of Cr.P.C.
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7. Being aggrieved by the said conviction judgment, the accused approached the District and Sessions Court, Mysuru in Crl.A.No.95/2014.
8. The first appellate Court secured the presence of the parties as well as the records and after hearing the arguments and re-appreciation of the entire material, confirmed the order passed by the learned Magistrate. It is that judgment which is subject matter of this revision petition.
9. Learned counsel for the revision petitioner Sri Chandrashekara K.A., vehemently contended that both Courts have not taken into consideration the relevant aspects of the matter and erred in convicting the accused. He also contend that even if the conviction order is to be maintained, sentence as passed by the learned Magistrate confirmed by the first appellate Court is excessive having regard to the nature of the offence. Hence prayed for allowing the revision petition.
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10. Per contra, Sri N.V.Nagesh, learned counsel appearing for Sri P.M.Siddamallappa, learned counsel for the respondent/complainant vehemently contended that the accused has taken inconsistent stand throughout the trial and there is no proper rebuttal evidence placed by the accused and therefore the order of conviction passed by the learned Magistrate and confirmed by the first appellate Court requires no interference. Insofar as the sentence is concerned, learned counsel for the complainant/ respondent contended that the cheque is of the year 2011 and the accused was successful in dragging the matter till 2014 and therefore the learned Magistrate used his discretion while imposing fine of Rs.57,000/- for the offence under Section 138 of the Act and also ordered six months simple imprisonment which is perfectly justified in the facts and circumstances of the case on hand and thus prayed for dismissal of the revision petition.
11. In view of the rival contentions of the parties, the following points that would arise for consideration are: 7
(i) Whether the finding recorded by the learned Magistrate that the revision petitioner/accused has committed an offence under Section 138 of N.I.Act, is erroneous and thus calls for interference?
(ii) Whether the sentence passed by the learned Magistrate for the offence punishable under Section 138 of N.I.Act is excessive?
12. The answer to the above points is as under: Point No.1 : In the Negative Point No.2 : Partly in affirmative for the following:
REASONS
13. POINT NO.1:- In the case on hand, issuance of the cheque and the signature found on it and borrowing of loan i.e., by the accused/revision petitioner stand proved in the absence of the effective cross examination of complainant by accused. The accused went on changing his version during the trial and took inconsistent stand as he was unable to establish that there 8 was no transaction as is alleged by the complainant which has been rightly appreciated by the learned Magistrate in the trial Court and reached a conclusion that accused has committed an offence punishable under Section 138 of N.I.Act.
14. Learned Judge in the first appellate Court also held in detail about the material aspects involved and rightly upheld the judgment of the trial Court in so far as the conviction of the accused for the offence under Section 138 of N.I.Act.
15. Therefore from the above discussion this Court is the considered opinion that there is no merit in the contention urged on behalf of the revision petitioner that the accused has not committed an offence punishable under Section 138 of the N.I.Act. Accordingly point No.1 is answered.
16. POINT NO.2:- Learned Magistrate in the impugned judgment, has dealt the question of awarding a sum of Rs.55,000/- as compensation payable to the 9 complainant and Rs.2,000/- as fine amount to the State for the offence under Section 138 of N.I.Act. In para 20 of the judgment, the reason assigned by the learned Magistrate in ordering a sum of Rs.57,000/- as compensation and fine amount is that the inconvenience and hardship caused by the accused by dragging the matter from 2011 to 2014.
17. It is unfortunate that first appellate Court did not assign any reasons whatsoever for upholding the sentence.
18. No doubt Section 138 of N.I.Act contemplates awarding double the cheque amount as fine amount in a given case. However the said power is discretionary in nature and while ordering for proper fine amount or ordering imprisonment, it is the bounden duty of the learned Magistrate to assign proper reasons for awarding appropriate sentence. The records made available before this Court do not reflect on this aspect of the matter nor there is nothing available in the impugned judgment to 10 show that in fact the learned Magistrate who has heard the accused regarding sentence and his contentions having been taken on record dealt with by a reasoned order.
19. Learned first appellate Court was duty bound to consider the sentence aspect and did not bestow these contentions as to why the sentence as is passed by the learned Magistrate should to be accepted. It is pertinent to note that in para 20 of the judgment, learned Judge in the first appellate Court has only referred that the learned Magistrate has rightly sentenced the accused without assigning any reason whatsoever to uphold the sentence portion. Under these circumstances there is sufficient force in the arguments advanced on behalf of the learned counsel for the revision petitioner that both the Courts have not taken into account the right of the accused in getting an order of appropriate sentence in a given case.
20. Learned counsel appearing for the complainant Sri N.V.Nagesh for Sri P.M.Siddamallappa is also unable to convince this Court as to how the sentence passed by the 11 learned Magistrate and confirmed by the first appellate Court is appropriate sentence in the facts and circumstances of the case.
21. Accordingly, in the considered opinion of the Court having regard to the nature of the offence and the materials available on record, the sentence of simple imprisonment for six months as ordered by the learned Magistrate and confirmed by the first appellate Court as well as the fine amount needs interference.
22. Having regard to attendant circumstances and the contentions taken by the parties to the lis this Court is of the considered opinion that for the offence under Section 138 of N.I.Act, if accused ordered to pay fine of Rs.52,000/- would meet the ends of justice. The accused has made some deposits before the trial Court during pendency of the appeal as well as this revision petition. Balance amount if ordered to be paid within a period of two months would meet the ends of justice. If the accused/revision petitioner fails to make payment of the 12 amount as aforesaid, the order of the learned Magistrate stands restored. With the above observations, point No.2 is answered and following order is passed:-
ORDER Revision Petition is allowed in part. While maintaining the conviction of the revision petitioner/accused for the offence under Section 138 of N.I.Act, the revision petitioner/accused is directed to pay fine of Rs.52,000/- out of which a sum of Rs.50,000/- is payable to the complainant / respondent as compensation and remaining sum of Rs.2,000/- is payable to the State as fine.
The revision petitioner/accused is directed to make the balance payment within two months from today failing 13 which the order of the learned Magistrate stands restored.
No order as to costs.
Sd/-
JUDGE KMV