Karnataka High Court
Mr B S Mahesh vs M/S Karnataka Merchants Finance on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:24729
CRL.RP No. 1014 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. 1014 OF 2021
BETWEEN:
MR. B.S. MAHESH,
S/O LATE H.V. SWAMY,
AGED ABOUT 44 YEARS,
R/AT NO. E-83,
SRI. GURU SHANESHWARA SWAMY MAHAKSHETRA,
KEMPABUDIKERE,
KEMPEGOWDA NAGARA,
BENGALURU - 560 019.
...PETITIONER
(BY SRI. KUMARA K.G., ADVOCATE)
AND:
M/S KARNATAKA MERCHANTS FINANCE
Digitally
signed by REGISTERED OFFICE SITUATED AT NO.565,
YAMUNA K L 2ND FLOOR, HMT LAYOUT, 2ND BLOCK,
Location: High 8TH MAIN ROAD,
Court of
Karnataka VIDYARANYAPURA,
BANGALORE-560 097.
AND ALSO BRANCH OFFICE AT NO.897,
1ST FLOOR, 12TH MAIN , 4TH CROSS,
NEAR MARUTHI CIRCLE, HANUMANTHNAGAR,
BANGALORE-560 019.
REPRESENTED BY ITS AUTHORISED PERSON
SRI ABDUL SUBHAN.
...RESPONDENT
(RESPONDENT SERVED)
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NC: 2024:KHC:24729
CRL.RP No. 1014 of 2021
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY THE HONBLE
COURT, THE PETITIONER HAS PREFERRED APPEAL BEFORE THE
LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-64)
AT BENGALURU IN CRL.A.NO.1131/2016 DATED 08.12.2020
AND JUDGMENT PASSED BY XLII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE NRUPATUNGA ROAD,
BENGALURU CITY IN C.C.NO.14967/2015 DATED 29.08.2016
TO ACQUIT THE PETITIONER OF THE CHARGE UNDER SEC.138
OF NI ACT BY ALLOWING THIS CRIMINAL REVISION PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Kumara. K. G., learned counsel for the revision petitioner. None present on behalf of the respondent.
2. Accused who has convicted for the offence punishable under Section 138 of the Negotiable Instrument Act(for short 'NI Act'), in C.C.No14967/2015 confirmed in Crl.A.No.1131/2016 has preferred the present revision petition.
3. The facts in brief which are utmost necessary for disposal of the revision petition are as under:
4. A complaint came to be lodged under Section 200 of Cr.P.C. by the respondent contending that accused being a -3- NC: 2024:KHC:24729 CRL.RP No. 1014 of 2021 member of the complainant finance company, borrowed a sum of Rs.3,00,000/- as loan on 07.02.2012 and in that regard, he had executed necessary documents. Towards the repayment of the said loan amount with interest, he issued a cheque bearing No.793621 drawn on Vijaya Bank, Hanumanthanagara branch, Bangalore, on 20.03.2015 in a sum of Rs.2,77,500/- which is the balance outstanding in the loan amount and the said cheque on presentation came to be dishonored with an endorsement 'Account Blocked Situation Covered 2125'.
5. Legal notice was issued and the same was served on the accused. There was no reply nor compliance to the calling of the notice. Therefore, action against the accused was sought.
6. The learned Trail Court took cognizance for the offence punishable under Section 138 of the NI Act and summoned the accused and recorded plea. Accused pleaded not guilty. Therefore, Trial was held.
7. In order to prove the case of the complainant, complainant himself got examined as PW.1 and placed on record documentary evidence which are executed and marked as Exs.P1 to P16. Cross-examination of PW1 did not yield any -4- NC: 2024:KHC:24729 CRL.RP No. 1014 of 2021 material to dislodge the presumption under Section 139 of NI Act. Thereafter, accused statement under Section 313 of Cr.P.C was recorded, wherein accused has denied incriminating materials. As against the evidence placed on record by the complainant, accused got examined himself as DW.1 and as many as 11 documents were placed on record on behalf of the accused which were executed and marked as Exs.D1 to D11. Among them Ex.D1 to D10 are the pigmy slips which was confronted to PW.1 and admitted by PW.1 and as such those documents were in the cross examination of PW.1.
8. The learned Trial Judge thereafter heard the parties in detail and convicted the accused for the offence punishable under Section 138 of the NI Act and imposed fine of Rs.7,000/- towards the defraying expenses of the State and a sum of Rs.3,00,000/- was ordered as compensation to the complainant.
9. Being aggrieved by the same, accused preferred an appeal before the district court in Crl.A.No.1131/2016.
10. The learned Judge in the First Appellate Court, after securing the records and hearing the parties in detail dismissed -5- NC: 2024:KHC:24729 CRL.RP No. 1014 of 2021 the appeal of the accused by upholding findings recorded by the Trial Magistrate.
11. Thereafter, accused is before this Court.
12. The learned counsel for the petitioner Sri.Kumara. K. G., vehemently contended that the Trial Magistrate has not properly appreciated the material evidence on record especially Ex.D1 to D11 and wrongly convicted the accused which has been mechanically upheld by the learned Judge in the First Appellate Court and sought for allowing the revision petition.
13. He also pointed out that transaction is of the year 2012 and to be more specific the loan was borrowed on 07.02.2012 and the cheque came to be issued on 20.03.2015 whereby the debt was clearly time barded and therefore, there was no liability on the part of the accused to repay the cheque amount and sought for allowing the petition.
14. Respondent though served with the notice by the revision petitioner remained absent.
15. In the light of the arguments put-forth, this Court perused the material evidence on record meticulously. On such perusal of the material evidence placed on record, issuance of -6- NC: 2024:KHC:24729 CRL.RP No. 1014 of 2021 cheque by the accused to the complainant is not in dispute so also the signature found there in.
16. The defense that has been put forth on behalf of the accused before the Trial Magistrate is that the complainant has not given proper deductions to his claim in respect of Exs.D1 to D11.
17. In the cross examination of DW.1 to DW.11 it has been clearly admitted that D1 to D10 pertains to the loan transaction of the year 2011 and not 2012. So also in respect to Ex.D11 there is a dispute.
18. Even though the loan amount was in a sum of Rs.3,00,000/- as could be seen from the demand promissory note produced before the Court, the cheque came to be issued vide Ex.P11 in a sum of Rs.2,77,500/- which means to say the payments made by the accused has been given due deduction in respect of the on demand promissory note executed by the accused in favour of the complainant vide Ex.P9.
19. When some payments have been made by the accused to the complainant and the same has been given due deductions, it should not lie in the mouth of the accused that -7- NC: 2024:KHC:24729 CRL.RP No. 1014 of 2021 cheque has been misused and the cheque pertains to some other transaction.
20. Further, since the payments have been made and the same has been given due deductions, the cheque dated 20.03.2015 is well within the time and the debt is not time bared. Accordingly, viewed from any angle the grounds urged in the revision petition are hardly sufficient to interfere with the order of the Trial Court convicting the accused for the offence punishable under Section 138 of the NI Act and confirmed in the First Appellate Court.
21. Having said thus, as against the sum of Rs.2,77,500/ the Trial Judge has ordered compensation of a sum of Rs.3,00,000/- , which needs no interference.
22. However, since the lis is privy to the parties and no state machinery is involved, awarding sum of Rs.7,000/- towards the defraying expenses of the State needs interference in this revision. Hence, the following:
ORDER i. Criminal Revision Petition is allowed in part.-8-
NC: 2024:KHC:24729 CRL.RP No. 1014 of 2021 ii. While maintaining the conviction of the accused for the offence punishable under Section 138 of the NI Act, the fine amount ordered by the learned Trial Magistrate confirmed by the First Appellate Court in a sum of Rs.7000/- towards the defraying expenses of the State is hereby set aside. iii. Compensation in a sum of Rs.3,00,000/-
awarded by the Trial Magistrate confirmed by the First Appellate Court payable to the complianant is hereby confirmed. iv. Time is granted till 25.07.2024 to pay the balance amount; failing which the accused shall undergo simple imprisonment for a period of 6 months.
Sd/-
JUDGE LDC:List No.: 1 Sl No.: 50