Karnataka High Court
Sri Goveindappa B K vs Sri Girisha K B on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 859 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. 859 OF 2021
BETWEEN:
SRI. GOVEINDAPPA B. K.,
S/O LATE KRISHNAPPA,
AGEDA BOUT 50 YEARS,
R/AT NO.96, 1ST MAIN ROAD,
2ND CROSS, KANAKANAGAR,
GKVK POST, YELAHANKA SATELLITE TOWN,
CHIKKABOMMASANDRA,
BENGALURU 560 065.
...PETITIONER
(BY SRI. C. SHANKAR REDDY, ADVOCATE)
AND:
SRI. GIRISHA K. B.,
Digitally
signed by S/O BYRASHETTY,
MALATESH AGED ABOUT 50 YEARS,
KC R/AT NO.1/1,
Location: SRI SHAKTHI NILAYA, 8TH CROSS,
HIGH 5TH MAIN ROAD,
COURT OF
KARNATAKA SANJEEVININAGAR,
BENGALURU-560 072.
...RESPONDENT
(BY SRI. ANAND R.V., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT & ORDER
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CRL.RP No. 859 of 2021
DATED 21.12.2020 CRL.A.NO.758/2018 PASSED BY THE LXIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
AND THEREBY ALSO SET ASIDE THE JUDGMENT AND
SENTENCE DATED 02.04.2018 PASSED IN C.C.NO.4383/2015
BY THE XVIII ACMM, BANGALORE AND ACQUIT THE
PETITIONER IN THE ABOVE OFFENCE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Nataraj.D., learned counsel for the revision petitioner, Smt. Jayashri. G., learned counsel for the respondent.
2. Accused who suffered an order of conviction in C.C.No.4383/2015 for the offence pus 138 of the Negotiable Instrument Act (for short 'NI Act') and ordered to pay fine amount of Rs.2,85,000/- out of which a sum of Rs.2,75,000/- is ordered to pay as compensation to the complainant and the balance amount of Rs.10,000/- towards the defraying expenses of the State confirmed in Crl.A.No.758/2018 has preferred this present revision petition.
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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. alleging the commission of the offence punishable under Section 138 of the NI Act contending that the complainant was introduced to the accused by one Nanjappa, who was working in HAL. With that acquaintance, accused approached the complainant for financial assistance in the month of December-2013 and he agreed to repay the same within 4 to 5 months. Based on the said request, complainant advanced a sum of Rs.2,25,000/- for which accused has agreed to pay interest at the rate of 18% per annum. Despite the lapse of 4 to 5 months, accused did not repay the amount borrowed by him and therefore, when the complainant started demanding the accused to repay the amount, accused issued a cheque in a sum of Rs.2,25,000/- bearing No.162468 drawn on Syndicate Bank, Vidyaranyapura branch, Bengaluru dated 05.12.2014. The said cheque on presentation came to be dishonored with an endorsement 'insufficient funds' on 06.12.2014. Therefore, legal notice came to be issued on 23.12.2014. -4-
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5. The legal notice is returned with an endorsement 'Not claimed'. Thereafter, complainant has sought for an action against the accused for the offence punishable under Section 138 of NI Act.
6. The learned Trial Magistrate took cognizance for the offence punishable under Section 138 of the NI Act and summoned the accused and recorded the plea. Accused pleaded not guilty. Therefore, Trial was held.
7. In order to prove the case of the complainant, complainant got examined himself as PW.1 and placed on record 5 documents comprising of dishonored cheque, bank endorsement, office copy of the legal notice, postal receipt and postal returned covers. Cross examination of PW.1 did not yield any positive materials to dislodge the presumption in favour of complainant under Section 139 of NI Act.
8. Accused statement as is contemplated under Section 313 of Cr.P.A was recorded wherein, accused denied all the incriminatory circumstances.
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9. As against the evidence placed on record by the complainant, accused got examined himself as DW.1 and did not choose to place any documentary evidence on record.
10. It was the case of the defense before the Trial Court that the complainant had no lending capacity inasmuch as he was doing the job of a cable operator and therefore, the cheque is misused by the complainant in active collusion with one Nanjappa, who is a common friend to the complainant and accused and therefore, the cheque did not involve any legally recoverable debt and sought for dismissal of the complaint.
11. The said defense was not probabalized by placing necessary evidence on record by the accused, is the finding recorded by the learned Trial Magistrate while passing the order of conviction as referred supra.
12. Learned judge in the First Appellate Court re- appreciating the material evidence on record dismissed the appeal of the accused. Thereafter, accused is before this Court.
13. Sri. Nataraj learned counsel for the revison petitioner reiterating the grounds urged in the revision petition vehemently contended that both the Courts have not -6- NC: 2024:KHC:24727 CRL.RP No. 859 of 2021 properly appreciated the material evidence on record especially the lending capacity of the complainant resulting in mis-carriage of justice and sought for allowing the petition.
14. Per contra Smt. Jayashri, learned counsel for the respondent supports the impugned judgment.
15. Having heard the parties in detail, this Court perused the material on record meticulously. On such perusal of the material on record, issuance of the cheque and the signature found there in is not in dispute.
16. It is the defense of the accused that Nanjappa had possession of the cheque issued by the accused which has some how reached the hands of the complainant and both of them colluded together and mis-used the same. To probabalize the theory of the mis-use, no positive evidence is placed on record by the accused. No criminal complaint has been lodged against one Nanjappa or the accused. Nanjappa is neither cited as a witness as against the complainant in favour of the accused. All these factors have been properly appreciated by the learned Trial Magistrate while invoking the presumption available to the complainant under Section 139 of the NI Act. -7-
NC: 2024:KHC:24727 CRL.RP No. 859 of 2021 Therefore, when the theory of misuse, which is not proved, the question of lending capacity of the complainant cannot be countenanced. As such the learned Trial Magistrate and the learned Judge in the First Appellate Court have rightly appreciated the material evidence on record in recording an order of conviction.
17. This Court, that too in the revisional jurisdiction, can not interfere with the well reasoned finding of the Trial Magistrate and confirmed by the First Appellate Court.
18. As such, the conviction order passed by the Trial magistrate and confirmed by the First Appellate Court is maintained.
19. Having said thus, the learned Trial Magistrate has imposed a sum of Rs.2,85,000/- as the fine amount of which a sum of Rs.2,75,000/- is ordered to be paid as compensation to the complainant and Rs.10,000/- towards the defraying expenses of the State. In view of the fact that the lis is privy to the parties and no state machinery is involved, Rs.10,000/- towards the defraying expenses of the State can not be countenanced in law.
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20. To that extent the order of the Trial Magistrate and confirmed by the First Appellate Court needs to interference in this revision. Accordingly, the following:
ORDER i. Criminal Revision Petition is allowed in part.
ii. While maintaining the order of 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.2,85,000/- is modified to the sum of Rs.2,75,000/- and sum of Rs.10,000/- imposed as fine towards the State is hereby set aside.
iii. Entire amount of Rs.2,75,000/- is to be
paid as compensation to the
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CRL.RP No. 859 of 2021
complainant; failing which, the accused shall undergo simple imprisonment for a period of one year.
iv. Time is grant till 25.07.2014 to pay the balance amount.
Sd/-
JUDGE LDC List No.: 1 Sl No.: 42