Karnataka High Court
M S Nagaraj vs Dhathathriya Batta on 26 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:23626
CRL.RP No. 69 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.69 OF 2020 (397)
BETWEEN:
M S NAGARAJ
S/O M. SUBRAMANYA SHETTY
AGED ABOUT 52 YEARS
NO.263/1, CHELUVAMBA
AGRAHARA, K.R.MOHALLA
MYSORE-570028.
...PETITIONER
(BY SRI. VEERABHADRA SWAMY H P., ADVOCATE)
AND:
DHATHATHRIYA BATTA
S/O NARASHIMA BATTA,
AGE 46 YEARS, D.NO.1,
Digitally SRI SEETHARAMASWAMY TEMPLE,
signed by R SEETHA VILASA ROAD,
MANJUNATHA OPP: MARIMALLAPPA COLLEGE,
Location: MYSORE-560024.
HIGH COURT ...RESPONDENT
OF
KARNATAKA
(BY SRI. DHATHATHRIYA BATTA- SERVED)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 06.09.2019
MADE IN CRL.A.NO.104/2016 ON THE FILE OF THE HON'BLE
VII ADDITIONAL SESSIONS JUDGE AT MYSURU AND
JUDGEMENT AND ORDER DATED 25.04.2016 MADE IN
C.C.NO.1075/2015 ON THE FILE OF THE HON'BLE COURT C/C
JUDICIAL MAGISTRATE FIRST CLASS (IV COURT) MYSURU
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NC: 2024:KHC:23626
CRL.RP No. 69 of 2020
(JMFC III COURT AT MYSURU) AND CONSIDERED THE SAID
CRL.RP ON MERITS.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Veerabhadra Swamy H.P, learned counsel for the revision petitioner.
2. Learned counsel for the revision petitioner submits that despite his best efforts, he could not get the presence of the respondent. Further, he also submits that he is ready to address the arguments on merits. Accordingly, the matter is heard on merits.
3. The accused who has suffered an order of conviction in C.C.No.1075/2015 confirmed in Crl.A.No.104/2016 has filed this revision petition challenging the validity of the judgments of both the Courts.
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NC: 2024:KHC:23626 CRL.RP No. 69 of 2020
4. Brief facts of the case which are utmost necessary for the disposal of the present revision petition are as under:
The complainant lodged the complaint against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I Act' for brevity), by filing a private complaint under Section 200 of Cr.P.C. The complaint averments reveals that accused approached the complainant in the month of June 2011 and requested him to advance hand loan in a sum of Rs.25,000/- with a promise to repay the same as early as possible. Towards repayment of the said hand loan, accused issued a cheque bearing No.471281 dated 20.10.2011 for a sum of Rs.25,000/- drawn on Karur Vysya Bank. Said cheque on presentation came to be dishonoured with an endorsement as 'insufficient funds'. Legal notice issued to the accused, but there is no compliance nor any reply, but accused in turn issued a untenable reply. Therefore, the complainant sought for action.-4-
NC: 2024:KHC:23626 CRL.RP No. 69 of 2020
5. Learned trial Magistrate after taking cognizance of the offence under Section 138 of N.I Act, secured the presence of the accused and recorded plea. Accused pleaded not guilty. Therefore, the trial was held. In order to prove the case of the complainant, the complainant got examined himself as PW.1 and placed on record 4 documents namely cheque, Bank endorsement, copy of legal notice and reply notice. Accused statement as is contemplated under Section 313 of Cr.P.C was recorded, wherein accused denied all the incriminating circumstances. Thereafter, accused got examined himself as DW.1, but did not place any documentary evidence on record.
6. Learned trial judge thereafter heard the parties in detail and after considering the rival contentions of the parties, convicted the accused for the offence punishable under Section 138 of the N.I Act and ordered to pay fine of Rs.36,000/- , out of sum of Rs.35,000/- was ordered to be -5- NC: 2024:KHC:23626 CRL.RP No. 69 of 2020 paid as compensation to the complainant and Rs.1,000/- towards defraying expenses of the State.
7. Being aggrieved by the same, accused has preferred an appeal in Crl.A.No.104/2016 before the District court.
8. Learned judge of the first appellate Court after securing the records and hearing the parties, dismissed the appeal dated 06.09.2019. Subsequent thereto, accused is before this Court in this revision petition.
9. Sri. Veerabhadra Swamy, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that both the courts have failed to appreciate the material evidence on record in proper perspective and sought for allowing the revision petition.
10. He also contends that in the reply notice there is specific contention taken by the accused that accused lost his money purse wherein the signed cheque was also -6- NC: 2024:KHC:23626 CRL.RP No. 69 of 2020 kept and thereafter, the same has reached the hands of the complainant and there is a misuse of the cheque.
11. To probablise the said defence, no material evidence is placed on record in the form of police complaint for the loss of the money purse or misuse of the cheque. Therefore, trial Magistrate believed the version of the complainant and convicted the accused. Since the material evidence on record does not indicate any legal infirmity, the theory loss of purse as is contended by the accused cannot be countenanced in law which has been rightly appreciated by the trial Magistrate and learned judge in the first appellate Court.
12. Therefore, this Court, that too in the revision jurisdiction, cannot interfere in the said finding.
13. Having said thus, since lis is privy to the parties and no State machinery is involved, imposition of fine of Rs.1,000/- to the State cannot be countenance in law, to that extent revision petition is to be allowed. -7-
NC: 2024:KHC:23626 CRL.RP No. 69 of 2020
14. Accordingly, I proceed to pass the following:
ORDER i. The 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 Negotiable Instruments Act, 1881, fine imposed by the trial Court for a sum of Rs.36,000/- is reduced to a sum of Rs.35,000/. Entire sum of Rs.35,000/- is ordered to be paid as compensation to the complainant, failing which, the accused shall undergo simple imprisonment for a period of three months.
iii. Fine amount of Rs.1,000/- imposed by the trial Court confirmed by the first Appellate -8- NC: 2024:KHC:23626 CRL.RP No. 69 of 2020 Court towards the defraying expenses of the State is hereby set aside.
iv. Time is granted for the accused to pay the balance sum of fine amount till 25th July 2024.
Sd/-
JUDGE SKS List No.: 1 Sl No.: 58