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.48/2015
BETWEEN:
B. C. NEELAKANTAPPA
S/O. CHANNABASAPPA
AGED ABOUT 38 YEARS
CEMENT AND FERTILIZER MERCHNAT
R/O BEGUR VILLAGE
HOSADURGA TALUK
PIN CODE - 577 527 ... PETITIONER
(BY SRI. SHARASS CHANDRA, ADV.,)
AND:
H. NIJALINGAPPA
S/O. HOLIYAPPA
AGED ABOUT 50 YEARS
DRIVER BY PROFESSION
ILAPURA VILLAGE, KASABA HOBLI
HOSADURGA TALUK
PIN CODE - 577 527 ...RESPONDENT
(BY SRI. K. S. HARISH, ADV.,)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED
25.11.2014 IN CRL.A.NO. 12/2014 PASSED BY THE ADDL,
DIST. AND SESSIONS JUDGE, CHITRADURGA, AND THE
2
JUDGMENT AND ORDER DATED 10.01.2014 PASSED BY
THE CIVIL JUDGE AND JMFC AT HOSADURGA IN C.C.NO.
117/2011 AND CONSEQUENTLY ACQUIT THE
PETITIONER/ACCUSED.
THIS CRIMINAL REVISION PETITION COMING ON
FOR FINAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
This Revision Petition is by the accused against the conviction order dated 10.1.2014 passed in CC No.117/2011 on the file of the Principal Civil Judge and JMFC at Hosadurga whereby the accused has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act; which was confirmed in Criminal Appeal No.12/2014 on the file of the Addl. District and Sessions Judge, Chitradurga, by judgment dated 25.11.2014.
2. Brief facts which are necessary for disposal of the Revision Petition are as under:
A complaint came to be filed u/s.200 Cr.PC., read with Section 138 of the Negotiable Instruments Act 3 contending that there was a monetary transaction between the complainant and the accused whereby the accused borrowed a sum of Rs.3,00,000/- from the complainant as a hand loan with an assurance to repay the same within four months and thereafter, when the complainant repeatedly demanded for repayment, ultimately, the accused issued a cheque bearing No.629310 dated 21.2.2011 for a sum of Rs.2,00,000/- which on presentation came to be dishonoured. It is further contended that statutory notice was issued on 22.2.2011. The same is served on the accused but accused did not comply with the callings of notice nor replied the same which necessitated the complainant to approach the court seeking suitable action against the accused. On presentation of the complaint after completing all the formalities, the learned Magistrate took cognizance of the accused and secured the presence of the accused and plea was recorded. Accused pleaded not guilty. Therefore, trial was held. In order to prove the case, the complainant got examined himself as PW-1 and relied on six documentary 4 evidence which were exhibited and marked as Exhibits P1 to P6. On completion of the evidence on record, the accused statement as contemplated u/s.313 Cr.PC., was recorded wherein the accused pleaded all incriminating circumstances which were put to him. However, the accused did not plead any oral evidence nor pleaded any documentary evidence on his behalf. Thereafter, the learned Magistrate on cumulative consideration of the materials on record, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for one month and ordered Rs.3,05,000/- as fine with a default sentence of six months simple imprisonment and out of the fine amount, a sum of Rs.3,00,000/- was ordered to be paid as compensation to the complainant as contemplated u/s.357 of Cr.PC., and a sum of Rs.5,000/- is to the State as fine.
3. Being aggrieved by the said judgment, the accused approached the first appellate court in Criminal 5 Appeal No.12/2014. The learned Judge in the first appellate court on securing the records, and after hearing the parties in detail, re-appreciated the entire materials on record and allowed the appeal of the accused in part by modifying the sentence to pay a sum of Rs.1,65,000/- as fine amount with default sentence of six months and ordered a sum of Rs.1,60,000/- as compensation to be paid to the complainant and the balance Rs.5,000/- is to be credited to the State. It is those judgments which are under challenge in this Revision Petition.
4. Learned counsel for the Revision Petitioner Sri Sharass Chandra vehemently contended that both the courts have not appreciated the case on hand properly and wrongly convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and prayed for allowing the Revision Petition.
5. It is pertinent to note that in the case on hand, the complainant-PW1 has stated that he is working as a lorry driver and also growing onion crop on lease basis and 6 therefore, he has sufficient means to lend money. It is also contended that accused borrowed money in the first week of October 2010 for his business necessities and for repayment of the loan amount cheque Ex.P1 came to be issued, which on presentation came to be dishonoured and there is no compliance to the callings of statutory notice nor the notice was replied by the accused. The material available on record clearly indicate that the initial burden cast on the complainant has been discharged by placing necessary materials on record. Suggestion was made to PW-1 that complainant work as a driver of the tractor owned by the accused and in that regard he had taken the Ex.P1 cheque and mis-using the said cheque he foisted a false case against the accused. It is pertinent to note that no reply was sent to the legal notice nor any positive steps have been taken about the alleged mis-use of the cheque by the complainant. No prudent person would keep quiet when it has come to his knowledge that the cheque belonged to him has been misused by somebody. 7
6. Further, there is no materials on record to rebut the presumption available to the complainant as is contemplated u/s.139 of the Negotiable Instruments Act. Under such circumstances, the finding recorded by the learned Magistrate which was confirmed by the first appellate court that accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act does not suffer from any patent error on record or improper exercise of jurisdiction or suffering from any legal infirmity.
7. However, the first appellate court, re-appreciated the entire materials on record and also noticed that the order sheet maintained in the Trial Court shows that between the period from 17.4.2012 to 8.5.2013 accused paid a sum of Rs.1,40,000/- to the complainant and therefore, the first Appellate Court modified the sentence passed by the Trial Court by levying fine of Rs.1,65,000/- and set aside the sentence of imprisonment of one year passed by the learned Magistrate for the offence 8 punishable under Section 138 of the Negotiable Instruments Act.
8. No explanation of whatsoever is forthcoming from the learned counsel for the Revision Petitioner as to why the accused made those payments before the Trial Court when the accused is not liable to pay the cheque amount and the cheque issued by the accused has been misused by the complainant.
9. In view of the above factual aspects, this court is of the considered opinion that the impugned judgments do not call for any interference at the hands of this court. Accordingly, the point is answered and following order is passed.
The Revision Petition is dismissed. However, having regard to the difficulties pleaded by the learned counsel for the Revision Petitioner, time is granted till 31st March, 2021 to the Revision Petitioner to pay the balance amount to be deposited before the Trial Court.
Sd/-
JUDGE PL*