Karnataka High Court
Sri. B.H. Lokesh vs Sri. B.M. Chandregowda on 25 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:29368
CRL.RP No. 112 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 112 OF 2016
BETWEEN:
SRI. B.H. LOKESH,
S/O B.M. HANUMANTHARAYAPPA,
AGED 45 YEARS,
NO.301 A, SITE NO. 217,
RANKA ENCLAVE APARTMENTS,
SADASHIVANAGAR, RMV EXTENSION,
BANGALORE - 560 080.
...PETITIONER
(BY SRI. VINOD KUMAR M., ADVOCATE)
AND:
SRI. B.M. CHANDREGOWDA,
S/O LATE MUNISWAMAIAH,
Digitally AGED 56 YEARS,
signed by
MALATESH NO.804, 18TH CROSS,
KC 5TH BLOCK, HMT LAYOUT,
Location: VIDHYARANYAPURA,
HIGH BANGALORE - 560 078.
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI. M. RAMASWAMY, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT/ORDER OF
CONVICTION DATED 20.09.2014 PASSED IN
C.C.NO.26471/2007 BY THE XVIII A.C.M.M., BANGALORE AND
THE JUDGMENT DATED 04.01.2016 PASSED BY THE LXVI
ADDL. CITY CIVIL AND S.J., BANGALORE (CCH-67) IN
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NC: 2024:KHC:29368
CRL.RP No. 112 of 2016
CRL.A.NO.1133/2014 AND ACQUIT THE PETITIONERS FROM
THE OFFENCE P/U/S 138 OF N.I. ACT.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Vinod Kumar N., learned counsel for the revision petitioner/accused No.2 and Sri.M.Ramaswamy, learned counsel for the respondent/complainant.
2. Revision petition is filed by accused No.2 challenging the order of conviction and sentence passed in CC No.26471/2007 dated 20.09.2014 on the file of XVIII Addl. Chief Metropolitan Magistrate, Bangalore for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to pay fine in a sum of Rs.10,25,000/-, out of which sum of Rs.10,00,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.25,000/- towards the defraying expenses of the State which was confirmed in Criminal Appeal No.1133/2014 dated 04.01.2016 on the file of LXVI Addl. City Civil and Sessions Judge, Bangalore. -3-
NC: 2024:KHC:29368 CRL.RP No. 112 of 2016
3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:
3.1. A complaint came to be filed under Section 200 of Cr.P.C. alleging the commission of offence under Section 138 of the Negotiable Instruments Act by contending that accused has issued two cheques bearing No.931837 and another cheque bearing No.931838 in a sum of Rs.5,00,000/- each, dated 30.12.2006 and 30.01.2007 respectively, drawn on Bank of Baroda, APMC Yard, Bangalore. The said cheques on presentation came to be dishonored with an endorsement 'exceeds arrangements'.
3.2. Thereafter, legal notice was issued. There was no compliance to the callings of the legal notice.
Therefore, complainant sought for action against the accused.
4. The learned Trial Magistrate after taking cognizance, summoned the accused and recorded the -4- NC: 2024:KHC:29368 CRL.RP No. 112 of 2016 plea. Accused did not plead guilty. Therefore, trial was held.
5. In order to prove the case of the complainant, complainant got examined himself as P.W.1 and relied on twenty six documents which were exhibited and marked as Exs.P.1 to Ex.P.26 comprising of two cheques as Ex.P.1, signatures of the accused as Exs.P.1(a) and 2(a), two bank endorsements as Exs.P.3 and 4, office copy of the demand notice as Ex.P.5, UCP receipt as Ex.P.6, two unserved legal notices opened in open Court as Exs.P.7 and 8, two postal covers in which unserved legal notices were kept as Exs.P.7(a) and 8(a), reply as Ex.P.9, complaint as Ex.P.10, deposition copies of D.W.1 in CC No.488/2008 as Exs.P.11 and 12, letters issued by Bharat Oversead Bank as Exs.P.13 to 18, letter addressed to the Bank as Ex.P.19, five payment made receipts as Exs.P.20 to 24, VRS letter from HMT as Ex.P.25 and document showing monetary benefits of the complaint as Ex.P.26. -5-
NC: 2024:KHC:29368 CRL.RP No. 112 of 2016
6. Detailed cross-examination of P.W.1, did not yield any positive material so as to disbelieve the version of the complainant nor dislodge the presumption available to the complainant under Section 139 of the Negotiable Instruments Act.
7. Thereafter, the learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.P.C. wherein, accused has denied all the incriminatory materials.
8. To rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act, accused No.2 got examined himself as D.W.1 and did not place any documentary evidence on record.
9. On conclusion of the recording of evidence, learned Trial Magistrate heard the parties in detail and convicted the accused and sentenced as referred to supra. -6-
NC: 2024:KHC:29368 CRL.RP No. 112 of 2016
10. Being aggrieved by the said order of conviction and sentence, accused preferred an appeal before the First Appellate Court in Crl.A.No.1133/2014.
11. Learned Judge in the First Appellate Court after reconsidering the oral and documentary evidence placed on record, reappreciated the material evidence, in the light of the arguments put forth on behalf of the parties and vide judgment dated 04.01.2016 dismissed the appeal.
12. Being further aggrieved by the same, accused No.2 is before this Court, in this revision.
13. Reiterating the grounds urged in the revision petition, Sri.Vinod Kumar N., learned counsel for the revision petitioner vehemently contended that case of the complainant is having different versions in the sworn statement, examination-in-chief and the contents of the legal notice which clearly establishes that the cheques in question were not issued towards the legally recoverable debt but same was stolen away by wife of the complainant who worked as Director of accused No.1 Company and -7- NC: 2024:KHC:29368 CRL.RP No. 112 of 2016 complainant misused the same which has not been properly appreciated by both the Courts and sought for allowing the revision petition.
14. He pointed out that there is no proper service of the legal notice and therefore, taking cognizance of offence under Section 138 of the Negotiable Instruments Act by learned Trial Magistrate itself stood vitiated and sought for allowing the revision petition.
15. He also pointed out that lending capacity of the complainant was questioned in the cross-examination in detail by the accused and there was no sufficient material placed on record by the complainant to establish that he had the lending capacity to lend the amount of Rs.10,00,000/- to the accused No.1 - company and therefore, there is no legally recoverable debt under Exs.P.1 and 2 and thus, sought for allowing the revision petition.
16. He further pointed in cross-examination of P.W1, he has categorically admitted that the amount is not -8- NC: 2024:KHC:29368 CRL.RP No. 112 of 2016 lent to accused No.1 - Company but it was lent to accused No.2 and therefore, the issuance of the cheques by accused No.1 is incorrect and sought for allowing the revision petition.
17. Per contra, Sri.M.Ramaswamy, learned counsel for the respondent/complainant supports the impugned judgments.
18. Having heard the parties in detail, this Court perused the material on record meticulously.
19. On such perusal of the material on record, it is crystal clear that the signature found in Exs.P.1 and 2 are not in dispute.
20. The complaint averments would go to show that the cheques were issued towards the legally recoverable debt and thereafter, learned Trial Magistrate has taken cognizance and perused the material evidence on record especially the documentary evidence placed on record by the complainant.
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21. The oral and documentary evidence placed on record by the complainant was sufficient enough to raise initial presumption in favour of the complainant as is contemplated under Section 139 of the Negotiable Instruments Act.
22. The procedure and the reasoning adopted by the learned Trial Magistrate in the case on hand is in consonance with the principles of law enunciated in the case of Rajesh Jain V/s. Ajay Singh reported in 2023 (10) SCC 148.
23. No doubt, said presumption is a rebuttable presumption. To rebut the presumption, accused No.2 got examined himself as D.W.1. In his oral evidence, D.W.1 has specifically stated that the cheques were not issued towards the legally recoverable debt and wife of the complainant was one of the Directors of the Company and when accused No.2 was on tour, she was looking after the affairs of the Company and for smooth running of the company, he had left few signed cheques and same has
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NC: 2024:KHC:29368 CRL.RP No. 112 of 2016 been given by the wife of the complainant to the complainant to misuse the same and foist a false case.
24. In the cross-examination, he admits that he is an Engineering graduate and he is the Managing Director of accused No.1 - company.
25. He has also stated that the address shown in the complaint is his same address and he continues to stay the same address. He admits that if any letter is addressed to door No.33/1, it would reach him. He also admits that the accounts of the company was being audited and he does not remember the relevant year of audit report.
26. He also admits that there is another case pending against him in CC No.488/2008 and same is pending for consideration.
27. In his further cross-examination, he admits that he had obtained sum of Rs.17,00,000/- from M/s. Digiana
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NC: 2024:KHC:29368 CRL.RP No. 112 of 2016 Computers as loan. He also admits about the pending criminal case in that regard.
28. With the above evidence on record, the accused wanted to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act. It is pertinent to note that if the wife of the complainant has misused the cheques vide Exs.P.1 and 2; being an Engineering graduate, accused should have taken positive action against the wife of the complainant or the complainant by filing necessary criminal complaint for the alleged misuse of the cheques. No such action is forthcoming in that regard.
29. In that regard, Sri.Vinod Kumar N., learned counsel submits that accused is a close relative of the complainant and therefore, no criminal action was taken. Accepting such a submission on behalf of the revision petitioner would not arise for the simple reason that the relationship if any, got spoiled because of the present criminal case and also another criminal case where the
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NC: 2024:KHC:29368 CRL.RP No. 112 of 2016 case is now pending before the First Appellate Court where the accused has issued the cheque in the personal capacity and he got acquittal in the said order.
30. Therefore, when there is a specific answer in the deposition of D.W.1 that the cheques bears the signatures and it was misused by the wife of the complainant having not been accepted by the learned Trial Magistrate, learned Trial Magistrate was justified in convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and with the aid of presumption available to the complainant under Section 139 of the Negotiable Instruments Act. The said reasoning recorded by the learned Trial Magistrate is in consonance with the principles of law enunciated in the case of Rajesh Jain V/s. Ajay Singh as referred to supra.
31. Learned Judge in the First Appellate Court on thorough reappreciation of the material on record,
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NC: 2024:KHC:29368 CRL.RP No. 112 of 2016 concurred with the finding recorded by the learned Trial Magistrate.
32. This Court, that too, in the revisional jurisdiction cannot revisit into the factual aspects of the matter in analying the findings recorded by both the Courts. Accordingly, order of conviction recorded by the learned Trial Magistrate confirmed by the First Appellate Court needs no interference.
33. Having said thus, it is noticed that learned Trial Magistrate has imposed sum of Rs.10,25,000/- as fine amount, out of which sum of Rs.10,00,000/- is ordered to be paid as compensation to the complainant and balance sum of Rs.25,000/- towards the defraying expenses of the State cannot be countenanced in law as lis is privy to the parties and no State machinery is involved. To that extent impugned judgments needs interference by this Court in this revision.
34. Accordingly, the following:
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NC: 2024:KHC:29368 CRL.RP No. 112 of 2016 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 the Negotiable Instruments Act, the compensation amount ordered by the learned Trial Magistrate confirmed by the First Appellate Court in a sum of Rs.10,25,000/- is modified to the sum of Rs.10,00,000/- and sum of Rs.25,000/- imposed as fine towards the State is hereby set aside.
iii. Entire amount of Rs.10,00,000/- is to be paid as compensation to the complainant. iv. In default of payment fine amount, accused shall undergo simple imprisonment for a period of two years.
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NC: 2024:KHC:29368 CRL.RP No. 112 of 2016 v. Time is granted for the accused to pay the balance amount till 31.08.2024.
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(V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 11 CT: BHK