Karnataka High Court
Sri M Prasad vs Sri R Nagaraj on 4 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:25330
CRL.RP No. 431 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 431 OF 2021 (397)
BETWEEN:
SRI. M PRASAD,
S/O MUNIYAPPA,
AGED ABOUT 55 YEARS,
R/AT: KUMBARA STREET,
NEAR SRINIVASA WINES CENTER,
VARTHURU, BANGALORE-560087.
...PETITIONER
(BY SRI. ANIL GHOSH G.R., ADVOCATE)
AND:
SRI. R NAGARAJ,
S/O G N RAMANNA,
AGED ABOUT 58 YEARS
R/AT BYADABALE VILLAGE
INORAHOSAHALLI POST,
KASABA HOBLI, BANGARPET TALUK,
Digitally signed KOLAR DISTRICT-563114.
by NANDINI D
Location: High
...RESPONDENT
Court of (RESPONDENT - SERVED.)
Karnataka
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT PASSED IN CRL.A.NO.86/2019
DATED 06.05.2020 ON THE FILE OF THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, KOLAR CONFIRMING THE
JUDGMENT PASSED BY THE LEARNED ADDITIONAL CIVIL
JUDGE AND JMFC, BANGARPET IN C.C.NO.233/2008 DATED
12.09.2019 CONVICTING THE PETITIONER FOR THE OFFENCE
P/U/S 138 OF N.I ACT AND SENTENCING HIM TO PAY A FINE
OF RS.85,000/- IN DEFAULT OF PAY THE FINE THE ACCUSED
SHALL UNDERGO S.I FOR PERIOD OF 6 MONTHS.
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CRL.RP No. 431 of 2021
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Anil Ghosh, learned counsel for revision petitioner.
Though respondent served with the notice, remained absent.
The accused who suffered an order of conviction in C.C.No.233/2008 confirmed in Crl.A.No.86/2019has filed this revision petition.
2. Facts in brief which is utmost necessary for disposal of this revision petition is as under:
The complaint came to be lodged under Section 200 of Cr.P.C. for the alleged commission of offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I. Act' for short) by contending that the accused borrowed a sum of Rs.50,000/- (Rupees Fifty thousand only) from the complainant and towards the repayment of said loan, he -3- NC: 2024:KHC:25330 CRL.RP No. 431 of 2021 issued a cheque in a sum of Rs.50,000/- (Rupees Fifty thousand only) bearing No.589641 dated 24.01.2008. The said cheque on presentation came to be dishonoured and legal notice was issued. There was no reply to the callings of notice and there was an untenable reply. Therefore, the action was sought.
3. Accused was summoned after completing the formalities and plea was recorded. Accused pleaded not guilty and therefore, the trial was held.
4. In order to prove the case of complainant, complainant got examined himself as PW.1 and placed on record eight documents which were exhibited and marked as Ex.P1 to Ex.P8 comprising of original cheque, bank endorsement, copy of the legal notice, postal receipt and reply notice. In the cross examination of PW1, no useful material is elicited so as to dislodge the presumption under Section 139 of N.I.Act.
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5. As against the evidence placed on record by the complainant, accused got examined as DW.1 and he also examined two witnesses by name Girijamba and Chandrappa as DWs.2 and 3.
6. Learned Trial Judge recorded the statement of accused as is contemplated under Section 313 of Cr.P.C. wherein the accused has denied all incriminating circumstances.
7. Thereafter, the learned Trial Magistrate heard the parties and convicted the accused for the offence punishable under Section 138 of N.I.Act and impose fine amount in a sum of Rs.85,000/- (Rupees Eighty Five thousand only) of which Rs.5,000/- is towards defraying expenses to the State and a balance of Rs.80,000/- (Rupees Eighty thousand only) towards the compensation to the complainant.
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8. Being aggrieved by the same, the accused preferred an appeal before the District Court in Crl.A.No.86/2019.
9. Learned Judge in the First Appellate Court after securing the records and hearing the parties in detail and in view of the grounds urged in the appeal memorandum, dismissed the appeal by judgment dated 06.05.2020.
10. Thereafter, the accused is before this Court in this revision petition.
11. Sri. Anil Ghosh, learned counsel for the revision petitioner reiterating the grounds urged in this revision petition vehemently contended that the cheque of Girijamba has been misused by Chandrappa and therefore, evidence of Chandrappa and Girijamba has to be considered before accused was convicted by the Trial Magistrate and their evidence not properly appreciated by the learned Judge of the First Appellate Court and sought for allowing revision petition.
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12. In the light of the arguments put forth by the learned counsel for revision petitioner, this Court perused the material on record meticulously.
13. On such perusal of material on record, it is found that the cheque in question issued by the accused duly signed by him admittedly got dishonoured. There is no dispute with the signature of the accused.
14. According to the accused, the said cheque was given as security for the transaction of Girijamba and Chandrappa. To substantiate the said aspect of the matter, Girijamba and Chandrappa were examined as DWs.2 and 3.
15. It is pertinent to note that if there is misuse of the cheque as contended by the accused, some positive action should have been taken as a normal prudent person. No police complaint is filed nor any criminal action has been launched against Girijamba, Chandrappa and the -7- NC: 2024:KHC:25330 CRL.RP No. 431 of 2021 complainant by the accused to probablise the theory of misuse of cheque.
16. Under such circumstances, there is no rebuttal evidence placed on record to rebut the presumption that is available to the complainant under Section 139 of N.I.Act which has been rightly appreciated by both the Courts in convicting the accused.
17. Therefore, this Court, that too in the revisional jurisdiction, cannot revisit into the factual aspects in annulling the findings recorded by the Trial Court as well as the First Appellate Court in convicting the accused for the offence punishable under Section 138 of N.I.Act.
18. The evidence of DWs.2 and 3 do not have any impact as the cheque is admittedly belonging to the accused and not belonging to Girijamba and Chandrappa. Therefore, the conviction order is maintained.
19. Having said thus, it is noticed that a sum of Rs.5,000/- (Rupees Five thousand only) has been imposed -8- NC: 2024:KHC:25330 CRL.RP No. 431 of 2021 towards defraying expenses to the State by the Trial Magistrate confirmed by the First Appellate Court and the same needs interference in this revision in view of the fact that the lis to the privy to the parties and no State machinery is involved.
20. Accordingly, the following:
ORDER
1. Revision petition allowed in part.
2. While maintaining the conviction against the accused for the offence punishable under Section 138 of N.I.Act, fine awarded by the Trial Magistrate in a sum of Rs.85,000/- (Rupees Eighty five thousand only) is reduced to sum of Rs.80,000/- (Rupees Eighty thousand only).
3. The entire fine amount of Rs.80,000/- (Rupees One lakh sixty thousand only) is ordered to be paid as compensation to the complainant on or before 25.07.2024 failing which, the accused to undergo simple imprisonment for a period of six months.
4. The fine amount of Rs.5,000/- (Rupees Five thousand only) awarded by the Trial Magistrate -9- NC: 2024:KHC:25330 CRL.RP No. 431 of 2021 towards defraying expenses to the State is hereby set aside.
5. Office is directed to return the Trial Court records along with a copy of this order forthwith.
Sd/-
JUDGE SSD List No.: 1 Sl No.: 34