Karnataka High Court
Smt Vijayalakshmi vs Sri C N Nataraj on 25 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:29320
CRL.RP No. 1 of 2022
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. 1 OF 2022
BETWEEN:
SMT VIJAYALAKSHMI
AGED 52 YEARS
W/O SRI. RAMESH B.M
NO.6, 4TH MAIN
BCC LAYOUT, CHANDRA LAYOUT
BENGALURU - 560 040.
...PETITIONER
(BY SRI. LANKESH L, ADVOCATE)
AND:
SRI C. N. NATARAJ
S/O SRI. NARASIMHA NAIK
AGED ABOUT 49 YEARS
RESIDING AT KOTE EXTENSION
CHIKKAMAGALUR TOWN
PIN CODE - 577 101.
Digitally
signed by ...RESPONDENT
MALATESH
KC THIS CRL.RP. IS FILED U/S. 397 R/W 401 OF CR.P.C
Location: PRAYING TO SET ASIDE THE ORDER DATED 17.02.2020
HIGH PASSED BY THE COURT OF THE II ADDITIONAL DISTRICT AND
COURT OF SESSIONS JUDGE, CHIKKAMAGALURU IN CRL.A.NO.168/2019
KARNATAKA HAVING CONFIRMED THE ORDER DATED 28.06.2019 PASSED
BY THE 2ND ADDITIONAL CIVIL JUDGE AND J.M.F.C.,
CHIKKAMAGALURU IN C.C.NO.1474/2016 AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
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NC: 2024:KHC:29320
CRL.RP No. 1 of 2022
ORAL ORDER
(PER: HON'BLE MR JUSTICE V SRISHANANDA)
1. Heard Sri.Lankesh L., learned counsel for the petitioner. Respondent served and unrepresented.
2. Accused who suffered an order of conviction in C.C.No.1474/2016 confirmed in Crl.A.No.168/2019 for the offence punishable under Section 138 of Negotiable Instruments Act, has preferred this revision petition.
3. The facts of the case in brief are as under:
The complainant brought in action for the offence punishable under Section 138 of the Negotiable Instruments Act by contending that cheque bearing No.726857 dated 06.03.2016 in a sum of Rs.4,00,000/- drawn on Andhra Bank, Poorna Pragna Layout Branch, Bengaluru came to be dishonored on the ground of insuffcient funds and there was no compliance of calling to the notice.-3-
NC: 2024:KHC:29320 CRL.RP No. 1 of 2022
4. Learned trial Judge after securing the presence of the accused recorded the plea. Accused pleaded not guilty. Therefore, the trial was held.
5. In order to prove the case of the complainant, complainant got himself examined as PW-1 and placed on record four documents comprising of dishonoured cheque, Bank endorsement, legal notice and return envelop cover.
6. Detailed cross examination of the complainant with regard to the lending capacity and misuse of cheque did not yield any positive materials so as to disbelieve the case of the complainant not to 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 incriminating materials. In order to rebut the presumption available to the complainant, the accused -4- NC: 2024:KHC:29320 CRL.RP No. 1 of 2022 got examined herself as DW-1 and did not place any documentary evidence on record.
8. Defence of the accused is that the cheque was actually given in favour of Smt. Sharadamma and after the death of Smt. Sharadamma, her son by name Ravindra Prasad has colluded with the complainant and filed the false case against the accused and therefore, there was no legally recoverable debt covered under the Ex.P1-Cheque and therefore, sought for dismissal of the complaint.
9. Learned Judge after considering the oral and documentary evidence placed on record, especially, when the complainant has stated that he had the money to lend the same to the accused through Ginger business, has rightly raised the presumption under Section 139 of the Negotiable Instruments Act and convicted the accused holding that rebuttable evidence was not sufficient enough to dislodge the presumption.
10. Learned Judge in the First Appellate Court, thereafter, dismissed the appeal of the accused in Crl.A.No.168/2019 by judgment dated 17.02.2020. -5-
NC: 2024:KHC:29320 CRL.RP No. 1 of 2022 Subsequent thereto, the accused is before this Court in this revision petition.
11. Sri.Lankesh L., learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition, vehemently contended that complainant is a total stranger to the accused and it is the Ravindra Prasad, who is the son of the Smt. Sharadamma has colluded with the complainant and got foisted a false case against the accused and sought for allowing the revision petition.
12. He also pointed out that complainant did not have the lending capacity to lend the amount which has not been properly appreciated by the Trial Magistrate and sought for allowing the revision petition.
13. Respondent though served with the notice, remained absent. Therefore, this Court perused the material on record in the light of the argument put forth on behalf of the revision petitioner. -6-
NC: 2024:KHC:29320 CRL.RP No. 1 of 2022
14. On such perusal of the material on record, it is crystal clear that there is no dispute that the cheque is dishonoured with an endorsement funds insufficient and signature of the accused in the said cheque is not in dispute.
15. Theory put forward by the accused is that the cheque was actually handed over to Smt. Sharadamma and she died. Son of Smt. Sharadamma by name Ravindra Prasad has colluded with the complainant and got filed a false case against the accused.
16. If that is so, nothing prevented the accused to summon Ravindra Prasad and examine on behalf of the accused. No positive action about the alleged misuse has been taken by the accused either by filing the criminal complaint against the Ravindra Prasad or by filing any other proceedings. In the absence of any such positive proof placed on record about the alleged misuse, learned trial Judge was justified in raising the presumption in favour of the complainant and convicting the accused. -7-
NC: 2024:KHC:29320 CRL.RP No. 1 of 2022
17. Learned Judge in the First Appellate Court has rightly re-appreciated the material evidence on record.
18. This Court, that too, in the revisional jurisdiction, cannot revisit into the factual aspects in annulling the findings recorded by both the Courts. Accordingly, conviction is to be maintained.
19. Having said thus, it is noticed that both the Courts have erred in imposing sum of Rs.10,000/- as the fine amount towards the defraying expenses of the State in as much lis is privy to the parties and State machinery is involved. Accordingly, the fine amount of Rs.10,000/- is to be set aside.
20. Hence, the following:
ORDER
i) The criminal revision petition is allowed in part.
ii) While maintaining the conviction of the accused for the offence punishable under Section 138 of N.I Act, fine amount awarded by the Trial Magistrate confirmed by the -8- NC: 2024:KHC:29320 CRL.RP No. 1 of 2022 First Appellate Court in a sum of Rs.4,60,000/- is reduced to Rs.4,50,000/-.
iii) The entire amount of Rs.4,50,000/- to be paid as compensation on or before 31.08.2024, failing which, the petitioner shall undergo simple imprisonment for a period of four months.
iv) Amount of Rs.10,000/- awarded towards defraying expenses of the State is hereby set aside.
Sd/-
(V SRISHANANDA) JUDGE UN List No.: 1 Sl No.: 43