1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.123/2015
BETWEEN:
S. B. LAKSHMIKANTHA
AGED ABOUT 53 YEARS
S/O BYRAPPA, RETIRED STORE KEEPER
P.W.D DEPARTMENT
RESIDENT OF 'ASHA NILAYA'
3RD CROSS, 1ST MAIN, 3-A
HANUMANTHAPURA
TUMKUR - 572 102.
... PETITIONER
(BY SRI. AHAMED S. N., ADV.)
AND:
ZAFFER AHMED
AGED ABOUT 51 YEARS
SHAIK AHAMED HUSSAIN
HOLAVANAHALLY VILLAGE
KORATAGERE TALUK
TUMKUR DISTRICT - 572 12 ... RESPONDENT
(BY SRI. K. NAGABHUSHAN REDDY, ADV. NO
REPRESENTATION)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CRP.C PRAYING
TO SET ASIDE THE ORDER DTD.15.04.2014 PASSED IN
C.C.NO. 35/2010 ON THE FILE OF THE CIVIL JUDGE AND
2
JMFC COURT AT KORTAGERE AND ALSO SET ASIDE THE
ORDER OF CONFIRMATION DTD. 07.01.2015 PASSED IN
CRL. A. NO. 5008/14 ON THE FILE OF THE IV-ADDL. DIST.
AND SESSIONS JUDGE AT MADHUGIRI AND ORDER OF
ACQUITTAL OF THE PETITIONER.
THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The accused is in Revision challenging the order dated 7th January, 2015 passed by the learned IV Addl. District and Sessions Judge, Madhugiri in Criminal Appeal No.5008/2014; whereby the learned District and Sessions Judge confirmed the order of conviction dated 15th April, 2014 passed by the learned Civil Judge and JMFC, Koratagere in CC No.35/2010 and convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered simple imprisonment for a period of one year and directed the accused to pay a sum of Rs.2,00,000/- as compensation to the complainant under Section 357(3) of Cr.PC., 3
2. The brief facts which are necessary for the disposal of the Revision Petition are as under:
The complaint came to be filed u/s.200 Cr.PC., read with Section 138 of the Negotiable Instruments Act contending that during the month of April, 2009, for the family necessities, accused approached the complainant for a financial assistance of Rs.1,15,000/-. Complainant advanced the same to the accused and on the same day, the accused had issued post dated cheque for a sum of Rs.1,15,000/- towards the repayment of the hand loan, based on a post dated cheque bearing No.836867 dated 29.05.2009 drawn on Indian Overseas Bank, B.H. Road, Tumkur Branch. The complainant presented the said cheque on 30th May, 2009 through his Bank namely State Bank of India, Holavana Halli Branch, wherein the cheque got dis-honoured with an endorsement "Funds insufficient" on 5.6.2009 and thereafter, a statutory legal notice was issued to accused calling upon him to comply with the notice. The legal notice came to be returned with an endorsement 'not claimed' on 22.06.2009 which 4 necessitated the complainant to file a complaint to take action against the accused.
3. The learned Magistrate took cognizance recorded the sworn statement and issued summons. The accused entered appearance and plea was recorded. The accused pleaded not guilty. Therefore, the trial was held. In order to prove the complaint averments, the complainant got himself examined as PW-1 and relied on six documentary evidence which were exhibited and marked as Exhibits P-1 to P-6 comprising of dishonoured cheque, Bank challan, Endorsement for dishonour, copy of the legal notice issued to the accused, returned RPAD cover and the acknowledgement. On behalf of the complainant, the Manager of the Indian Overseas Bank was examined as PW-2.
4. The accused as contemplated u/s.313 Cr.PC., statement was recorded, wherein the accused has denied all the incriminating materials put to him. For question No.8, which is pertaining to examination of witnesses on 5 behalf of the accused, he has answered that 'he would examine a witness'. The accused also got himself examined as DW-1 and produced the statement of accounts which were exhibited and marked as Ex.D1.
5. Learned Magistrate on cumulative consideration of the oral and documentary evidence on record, came to the conclusion that the accused has committed an offence u/s.138 of the Negotiable Instruments Act and connected him for the said offence and awarded the sentence as referred to supra.
6. Being aggrieved by the judgment of the learned Magistrate, the accused preferred an appeal on the file of the IV Additional District and Sessions Judge, Madhugiri in Criminal Appeal No.5008/2014. The learned Judge in the first Appellate Court secured the presence of the parties as well as the records, heard the parties in detail and dismissed the appeal whereby confirmed the judgment of the Trial Court. It is this which is the subject matter of this Revision Petition.
6
7. Learned counsel for the Revision Petitioner Sri. Ahamed, vehemently contended that both the courts have failed to note that there was a material alteration in the cheque whereby the cheque itself rendered invalid and thus the conviction is improper. It is the specific contention of the learned counsel for the petitioner that the date which was written on the cheque as 29.05.2008 has been altered as 29.05.2009 and therefore, the conviction order passed by the Trial Court and confirmed in the first Appellate Court is incorrect, illegal and thus sought for allowing the Revision Petition.
8. The learned counsel for the Revision Petitioner further contended that initial burden has not been discharged by the complainant and his lending capacity has also not been pleaded and proved and this fact has totally been ignored by both the courts and sought for allowing the appeal. It is also contended that on the date of lending loan itself, the cheque was issued according to the complainant but the date as is found in the cheque is 7 as 29.05.2009 and thus, there is a serious discrepancy as to the case of the complainant which has been ignored by both the courts and thus sought for allowing the appeal.
9. In support of the contention, the learned counsel for the Revision Petitioner has relied on the judgment of this court in the case of B Krishna Reddy Vs. B.K. Somashekara Reddy reported in 2007 (2) DCR 391 which has been held as under:
"Held: Negotiable Instruments Act
declares that "any material alteration of
negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties". If the endorsee were to make an alteration, the liability of the endorser is discharged. It is mandatory that in order to attract prosecution under Section 138 of the Negotiable Instruments Act there should be any debt or legal liability. In view of admitted material placed on the part of PW-1, 8 instrument has become void in law. Therefore, no action in law under Section 138 of the Negotiable Instruments Act could lie. ....."
10. In this Revision Petition, though the Revision Petitioner is represented by an advocate, the Advocate is not present before the Court and there was no representation on behalf of the respondent/complainant when the matter was heard.
11. In the light of the arguments advanced on behalf of the Revision Petitioner and after perusal of the records of both the courts, the following points that would arise for consideration:
(i) Whether the finding recorded by the learned Magistrate that accused has committed an offence under Section 138 of the Negotiable Instruments Act confirmed by the first Appellate Court is erroneous? 9
(ii) Whether the sentence passed by the learned Magistrate in CC No.35/2010 and confirmed in Criminal Appeal is erroneous?
12. My answer to the above point No.(i) is in the 'Negative' and point No.(ii) is 'Partly in the Affirmative'.
13. The Trial Court as well as the first Appellate Court while holding that the accused has committed an offence under Section 138 of the Negotiable Instruments Act, have taken into consideration the material evidence on record. No doubt there is an alteration in the cheque which is marked as Ex.P1 as to the date 28.05.2008 has been altered as 28.05.2009 which is visible to the naked eye. However, there is a signature underneath the said correction. In this regard, PW-1 was cross examined extensively. The defence taken by the accused is that while he was proceeding in a Car, he met with an accident, wherein he lost the cheques and one of those cheques have been mis-used by the complainant. In the cross 10 examination of PW-1, he has answered that accused has obtained the loan in the month of April, 2009. In the complaint averments also, it has been clearly mentioned that accused borrowed money in the month of April, 2009. When such is the factual aspects, the alteration as to the date which has been found on Ex.P1 from 29.05.2008 to 29.05.2009, in the considered opinion of this court is properly explained by the complainant.
14. It is the accused who has taken the contention that there is a material alteration in Ex.P-1. It was required for the accused to make an application seeking necessary orders to refer the Ex.P-1 for hand-writing expert. No such application is filed by the accused before the learned Magistrate or atleast before the first Appellate Court. All along, the accused tried to impress upon the Court that a cheque has been mis-used by the complainant. But, no complaint is filed by the accused as against the complainant even after he came to know about the filing of the criminal complaint against him in CC 11 No.35/2010. Why accused did not take any action against the complainant about the mis-use of Ex.P1 is not explained by the accused. PW-2 who is the Manager of the Indian Overseas Bank, Tumkur has specifically deposed before the Court that the signatures found in Ex.P1 tallies with the specimen signatures maintained by the Bank.
15. These aspects of the matter has been properly appreciated by the learned Magistrate as well as the first Appellate Court in the impugned judgment.
16. This court in the revisional jurisdiction with the limited scope of revision, cannot re-visit to the minute details in the case especially when there is a concurrent finding of facts of both the courts. Suffice to say when the materials available on record and the reasonings recorded by both the courts in the impugned judgments, do not suffer from legal infirmity so as to interfere with the same in this Revision Petition there cannot be any dispute as to the principles of law enunciated in the judgments cited by the learned counsel for the Revision Petitioner. But the 12 facts in the said case and the facts of the case on hand are altogether different and in the absence of any positive evidence placed by the accused, the finding recorded and the alteration found in Ex.P1 signed by accused is not a material alteration and therefore, the said decision, principles cited in the said case is not of much avail to the revision to seek an order of interference by this court. REGARDING POINT NO.2:
17. The Trial Court while passing the impugned judgment has passed conviction order sentencing the accused to undergo simple imprisonment for a period of one year for the offence punishable under Section 138 of the Negotiable Instruments Act. For ready reference, the same is culled out hereunder:
"Acting under section 225 (2) of the Cr.P.C., the accused is here by convicted for the offence punishable under section.138 of N.I. Act. 13
Further, accused is sentenced to undergo simple imprisonment for a period of one year for the offence punishable under section 138 of N.I.
Act
Acting under section 357 (3) of Cr.P.C
accused is directed and liable to pay
compensation in a sum of Rs.2,00,000/-
(Rupees two lakhs only) to the complainant.
The bail bands of the accused shall stand cancelled.
Office is here by directed to supply free copy of the judgment to the accused forth with."
18. It is pertinent to note that the operative portion of the order do not contain a sentence of fine ordered as against the accused but only compensation of Rs.2 lakhs is ordered. In paragraph 28 of the judgment, there is a discussion as to why the learned Magistrate is imposing fine of Rs.2,00,000/-. The learned Magistrate has rightly 14 observed that accused has set up all possible evidence that are available to the accused to failed to substantiate the said defence and therefore, he has caused mandatory loss to the complainant and hence ordered for compensation of a sum of Rs.2,00,000/-.
19. Whenever a compensation is awarded in a matter of this nature, it is needless to emphasize that the accused must be sentenced to pay a fine of Rs.5,000/- and out of the fine amount, but the Trial Court has not fined the accused and passed an order of imprisonment for one year. Though there is a serious legal flaw in such an evidence, the first Appellate Court unfortunately did not bestow its attention to correct the same. The Trial Court did not assign any reasons for ordering the imprisonment of one year while dealing with Point No.2.
20. It is well settled principle of law and requires no emphasis that assigning the reasons to reach a conclusion is a cine qua non. In fact, the reasons are heart beat of any judgment. This aspect of the matter is ignored by the 15 first Appellate Court while confirming the order passed by the learned Magistrate.
21. Thus, in the considered opinion of this court both the courts have himself directed themselves in passing the appropriate the sentence in the case on hand.
22. Having regard to the fact that the accused failed to prove his defence that he lost the cheques and the same has been mis-used by the complainant, awarding a sum of Rs.2,00,000/- as the compensation payable to the complainant as against the cheque amount of Rs.1,25,000/- is reasonable. However, since the accused has not lodged any complaint or stated the same before the learned Magistrate, it is necessary for this court to pass an appropriate sentence. This Court to interfere with such findings passed an appropriate sentence. Accordingly, I pas the following:
ORDER
(i) The Revision Petition is allowed in part while maintaining the conviction for the offence punishable 16 under Section 138 of the Negotiable Instruments Act, the accused is sentenced only to pay a sum of Rs.2,05,000/-. Out of which, a sum of Rs.5,000/- shall be payable to the State as fine and a sum of Rs.2,00,000/- shall be payable to the complainant as compensation on or before 31st of May, 2021. In default of payment of fine amount, the accused is ordered to undergo simple imprisonment for one month.
Sd/-
JUDGE PL*