Karnataka High Court
Smt Chandramati Hegde vs Sri K S Ramesh on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:24893
CRL.RP No. 878 of 2021
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.878 OF 2021
BETWEEN:
SMT CHANDRAMATI HEGDE
W/O LAKSHMI NARAYANA
AGED ABOUT 53 YEARS
R/A GANESH KRUPA NILAYA
NO.1093, MAHESHWARI NAGAR
5TH CROSS, T DASARAHALLI
BENGALURU-560 057
...PETITIONER
(BY SRI MADHUKAR M DESHPANDE, ADVOCATE)
AND:
SRI K S RAMESH
S/O SATHYANARAYANA RAO
AGED ABOUT 55 YEARS
RESIDING AT NO.2217, DEVI NILAYA
PAMPA MAHAKAVI ROAD
Digitally T DASARAHALLI
signed by R BANGALORE-560057
MANJUNATHA
...RESPONDENT
Location: (RESPONDENT - SERVED)
HIGH COURT
OF THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
KARNATAKA
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 18.01.2021
PASSED IN CRL.A.NO.2566/2018 WHEREIN THE APPELLANT
COURT WAS PLEASED TO UPHOLD THE CONVICTION PASSED
IN C.C.NO.26763/2016 DATED 27.11.2018 PASSED BY THE
SMALL CAUSES AND XXVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
THIS PETITION COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC:24893
CRL.RP No. 878 of 2021
ORDER
Heard arguments of Sri B.S.Venkata Narayana, appearing on behalf of Sri Madhukar Deshpande, learned counsel for the revision petitioner. There is no representation on behalf of the respondent.
2. Time was granted to find out the feasibility of amicable settlement, if any. Since the respondent is absent. Amicable settlement is impermissible.
3. Revision petitioner is the accused who suffered an order of conviction in C.C.No.26763/2016, dated 27.11.2018, on the file of Small Causes and XXVII ACMM at Bengaluru, confirmed in Crl.A.No.2566/2018, dated 18.01.2021, on the file of LXV Additional City Civil and Sessions Judge, Bengaluru, where under the accused has been convicted for the offence punishable under Section138 Negotiable Instruments Act and order to pay fine amount of Rs.4,00,000/- of which sum of Rs.3,90,000/- was ordered to be paid as compensation to the complainant and balance of Rs.10,000/- towards the defraying expenses to the State, with default sentence of simple imprisonment of six months.
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4. Facts in brief which are utmost necessary for disposal of the revision petition are asunder:
A complaint came to be lodged under Section 200 Cr.P.C., by the complainant, alleging the commission of the offence under Section 138 of Negotiable Instruments Act by contending that in August 2013, accused borrowed sum of Rs.3,00,000/- from the complainant in respect of his business M/s. Lakshmi Venkateshwara Enterprises.
5. It was his contention that the said amount would be repaid within a period of three years from the date of borrowing. It is further contended that the accused pledged his house as security with the complainant at the time of receiving the loan amount. Thereafter, the accused said to have approached the Peenya Police and some settlement took place therein, where under the accused issued a cheque on 17.10.2016 in a sum of Rs.3,66,000/- as full and final settlement and obtained the sale deed which was pledged with the complainant. Said cheque on presentation came to be -4- NC: 2024:KHC:24893 CRL.RP No. 878 of 2021 dishonoured with an endorsement payment stopped by the drawer.
6. Legal notice did not yield in the compliance of callings of the notice. Therefore, action was sought.
7. Later, Trial Magistrate took cognizance and summoned the accused. Plea was recorded, accused pleaded not guilty and therefore trial was held.
8. In order to prove the case of the complainant, complainant got examined as P.W.1 and Smt. Jayamma as P.W.2. Eight documentary evidence were placed on record as Ex.C.1 to C.8. Cross-examination of P.W.1 did not yield any positive material to dislodge the presumption under Section 139 of Negotiable Instruments Act.
9. Accused statement as contemplated under Section 313 Cr.P,.C., is recorded under Section 313 of Cr.P.C., wherein, accused denied all the incriminating circumstances put to her.
10. As against the evidence placed on record by the complainant, accused got examined herself as D.W.1 and -5- NC: 2024:KHC:24893 CRL.RP No. 878 of 2021 placed on record six documentary evidence which were exhibited and marked as Exc.D.1 to D.6.
11. Thereafter, Learned Trial Judge heard the parties and convicted the accused as aforesaid.
12. Being not satisfied with the judgment of the Trial Magistrate, accused preferred an appeal before the District Court in Crl.A.2566/2018.
13. Learned Judge in the First Appellate Court dismissed the appeal of the revision petitioner. Thereafter accused is before this Court.
14. Sri B.S. Venkata Narayana, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, vehemently contended that the alleged loan transaction took place in August 2013 and cheque issued on 17.10.2016 is admittedly a time barred debt and therefore, Trial Magistrate ought not to have convicted the accused and sought for allowing the revision petition. -6-
NC: 2024:KHC:24893 CRL.RP No. 878 of 2021
15. He further pointed out that the sale deed said to have been pledged by the accused with the complainant is an afterthought by the complainant. Therefore, prays to allow the revision.
16. Respondent though served with the notice, remained absent.
17. In the light of the arguments put forth on behalf of the revision petitioner, this Court perused the material on record meticulously. On such perusal of the material on record, it is not in dispute that the cheque in question marked at Ex.C.1 has reached the hands of the complainant. The signature found therein is that of the accused, is not in dispute.
18. According to the complainant there was a loan transaction which is not denied by the revision petitioner. However, it is the case of the revision petitioner that the cheque is filled by complainant to cover a time barred debt. As such, its a misuse. If it is so, no action has been taken by the accused till today.
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NC: 2024:KHC:24893 CRL.RP No. 878 of 2021
19. Complainant has specifically stated that the matter was tried to be sorted out in Peenya police station, where under the sale deed was returned to the accused by the complainant by accepting the cheque in question in a sum of Rs.3,66,000/-. Therefore, the presumption as is available to the complainant under Section 139 of Negotiable Instruments Act has been rightly raised in favour of the complainant by the Trial Magistrate by convicting the accused for the aforesaid offence. No doubt it is a rebuttable presumption.
20. In order to rebut the said presumption, no positive action has been taken by the accused by filing the police complainant or by issuing legal notice. Said inaction on the part of the accused even after appearing before the Trial Magistrate would go to show that there was no misuse of the cheque as is alleged by the accused.
21. Under such circumstances, recorded an order of conviction by the Trial Magistrate, confirmed by the First Appellate Court is just and proper. Therefore, the interference of this Court, that too in the revisional jurisdiction, does not call for.
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22. But on the ground of proper sentence, since it is a lis between the two private parties, order of fine of Rs.10,000/- to the State as fine is an error, which needs interference by this Court in this revision petition.
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.3,90,000/- and the same be paid as compensation to complainant.
(iii) Imposition of the fine amount of Rs.10,000/-
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.: 74