Karnataka High Court
Smt Kalpana vs Sri Neelakanteshwara on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:24917
CRL.RP No. 1330 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.1330 OF 2019
BETWEEN:
SMT KALPANA
W/O SHIVARAJ
AGED ABOUT 50 YEARS
R/AT NO.1/8, 9TH MAIN,
VENKATAPPA LAYOUT,
BSK III STATE, HOSAKEREHALLI,
BENGALURU-560085.
...PETITIONER
(BY SRI VIJAY SHETTY B, ADVOCATE)
AND:
SRI NEELAKANTESHWARA
S/O LATE RACHAPPA
SINCE DEAD BY HIS LEGAL REPRESENTATIVES
Digitally
signed by
MALATESH SMT.GOWRAMMA
KC W/O LATE SRI NEELAKANTESHWARA
Location: AGED ABOUT 60 YEARS
HIGH RESIDING AT NO.6, 2ND 'B' CROSS
COURT OF BANASHANKARI 3RD STAGE
KARNATAKA KATHRIGUPPE MAIN ROAD
BANGALORE -560 085
...RESPONDENT
(BY SRI NAGABHUSHAN.R, ADVOCATE FOR LEGAL
REPRESENTATIVE OF DECEASED RESPONDENT)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER OF DISMISSAL OF CRIMINAL APPEAL PASSED BY THE
HONBLE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
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NC: 2024:KHC:24917
CRL.RP No. 1330 of 2019
BENGALURU (CCH-57) IN CRL.A.NO.129/2017 DATED
14.10.2019 FILED AGAINST THE JUDGMENT AND SENTENCE
PASSED BY THE HONBLE XVI ACMM AT BENGALURU IN
C.C.NO.27346/2014 DATED 02.01.2017 BY ALLOWING THE
ABOVE PETITION AND BY ACQUITTING THE
PETITIONER/ACCUSED.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Vijaya Shetty B., learned counsel for the revision petitioner. No representation on behalf of the respondent.
2. Accused - revision petitioner challenged the order of conviction passed by the XVI Addl.C.M.M., Bengaluru in C.C.No.27346/2014, dated 02.01.2017, confirmed by the LVI Additional City Civil and Sessions Judge, Bengaluru, in Crl.A.No.19/2017, dated 14.10.2019.
3. Facts in brief which are utmost necessary for disposal of the revision petition are as under:
The accused is the family friend of the complainant and during second week of April 2014, he approached complainant for financial help in a sum of Rs.5,00,000/- for construction of her house. The same was lent by the complainant on -3- NC: 2024:KHC:24917 CRL.RP No. 1330 of 2019 21.04.2014 and towards the repayment of the said amount, cheque bearing No.311701, dated 23.07.2014, in a sum of Rs.5,00,000/-, drawn on Canara Bank, Padmanabhanagara Branch, was issued by the accused, which on presentation came to be dishonoured with an endorsement funds insufficient.
4. Legal notice came to be issued, which was not complied, Therefore, the complainant was constrained to file a complaint before the jurisdictional Magistrate.
5. Learned Trial Magistrate took cognizance, secured the presence of the accused, recorded the plea, accused pleaded not guilty, therefore trial was held.
6. In order to prove the complainant's case, complainant himself examined as P.W.1 and placed on record as many as 15 documents which were exhibited and marked as Exs.P.1 to P.15 comprising of original cheque, bank memo, copy of legal notice, postal receipt and acknowledgement, complaint, true copy of letter issued by Deputy Director, true copy of cheques, statement of accounts and certified copies of the ordersheet. No useful material is elicited in cross-examination so as to -4- NC: 2024:KHC:24917 CRL.RP No. 1330 of 2019 dislodge the presumption under Section 139 of Negotiable Instruments Act.
7. Accused statement as is contemplated under Section 313 of Cr.P.C., was recorded, wherein accused denied all the incriminating evidence available on record.
8. As against the evidence placed on record, accused got examined herself as D.W.1 and placed seven documents which were exhibited and marked as Ex.D.1 to D.7, comprising of certified copies of the complaint, chief examination affidavit of complainant, certified copy of cheque, certified copy of the legal notice, certified copy of the postal receipt, certified copy of the postal acknowledgement and certified copy of thecross- examination of complainant in C.C.No.30587/2014.
9. Learned Trial Magistrate heard the parties in detail and passed the order of conviction, wherein accused is convicted for the offence punishable under Section 138 of Negotiable Instruments Act and the Trial Magistrate imposed the fine of Rs.6,00,000/-, of which sum of Rs.5,85,000/- as compensation to the complainant and Rs.15,000/- as cost towards the State exchequer.
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NC: 2024:KHC:24917 CRL.RP No. 1330 of 2019
10. Being aggrieved by the same, accused preferred an appeal before the Sessions Court in Crl.A.No.129/2017.
11. Learned Judge in the First Appellate Court after securing the records and hearing the parties, by judgment dated 14.10.2019 dismissed the appeal, whereby the order of conviction and sentence imposed by the Trial Magistrate was confirmed by the learned Judge in the First Appellate Court.
12. Being aggrieved by the same, accused is before this Court.
13. Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, vehemently contended that both the Courts have not properly appreciated the material evidence on record insofar as the capacity of the complainant to lent sum of Rs.5,00,000/- to the accused and therefore, conviction of the accused for the offence punishable under Section 138 of Negotiable Instruments Act is incorrect and sought for allowing the revision.
14. He also pointed out that the evidence placed on record by the accused in the form of certified copy of the proceedings in -6- NC: 2024:KHC:24917 CRL.RP No. 1330 of 2019 C.C.No.30587/2014, where under the proceedings was one against Smt. Selvee. Though the said document is produced by the accused, the learned Trial Magistrate and Judge in the First Appellate Court have not properly considered and therefore, sought for allowing the revision.
15. Since the counsel for the respondent is absent, this Court perused the material on record meticulously in the light of the argument put forth on behalf of the revision petitioner. On such perusal, it is crystal clear that issuance of the cheque and signature therein that of the accused is not contested.
16. According to the accused, the said cheque was issued in favour of Bhagyamma, who in turn handed it to the complainant and there was no transaction of the complainant and the accused which has not been probably considered by the learned Trial Magistrate. In paragraphs 36 and 37 of the impugned judgment, learned Trial Magistrate considered in detail about the issuance of the cheque by the accused to the complainant.
17. It is also pertinent to note that the alleged misuse of the cheque by Bhagyamma in collusion with the complainant, no -7- NC: 2024:KHC:24917 CRL.RP No. 1330 of 2019 positive action has been taken by the accused either by filing the criminal complainant or by getting the legal notice issued. No prudent person would keep quiet when there is a misuse of cheque that too in a sum of Rs.5,00,000/- even after having the services of an Advocate, when the accused was first appeared before the Trial Magistrate.
18. Under such circumstances, the learned Trial Magistrate raising the presumption in favour of the complainant and also taking note of the probative value of the documentary evidence placed on record by the complainant, this Court is of the considered opinion that the order of conviction passed by the learned Trial Magistrate and confirmed by the First Appellate Court does not require any interference in this revision petition.
19. However, since the lis between the two private parties, and no State machinery is involved, imposition of fine of Rs.15,000/- to be paid to the State, towards the defraying expenses to the State, cannot be countenanced in law and therefore, same needs to be set aside.
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NC: 2024:KHC:24917 CRL.RP No. 1330 of 2019 Accordingly, following:
ORDER
(i) Criminal revision petition is allowed in part.
(ii) While maintaining the conviction of the accused for the offence punishable under Section 138 of Negotiable Instruments Act, fine amount imposed by the Trial Court is modified to sum of Rs.5,85,000/- and the same be paid as compensation to the complainant, failing which, accused should undergo simple imprisonment for a period of one year.
(iii) Imposition of the fine amount of Rs.15,000/-
payable to the State is hereby set aside.
(iv) Revision petitioner shall deposit the balance amount on or before 31.07.2024.
Sd/-
JUDGE MR List No.: 1 Sl No.: 26