Karnataka High Court
Mr Sudheer Shetty vs Mr P Ramachandra on 2 December, 2021
Bench: V Srishananda
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.1051 OF 2014
BETWEEN:
MR. SUDHEER SHETTY
MAJOR
S/O VISHWANATH SHETTY
R/AT MANIKANTA HOUSE
TAILORY ROAD, MULIHITHLU
BOLAR, MANGALORE-576001 ... PETITIONER
(BY SMT. PARINEETA S. CHANAL, ADVOCATE FOR
SRI. B.V. PINTO, ADVOCATE-PH)
AND:
MR. P. RAMACHANDRA
MAJOR
S/O LATE B.V. HEGDE
PROP: FALCON SECURITY CONSULTANTS
KAIRANNA BUILDINGS
OPP: JOYTHI TALKIES
BALMATTA, MANGALORE-575001 ...RESPONDENT
(BY SRI. P.P. HEGDE, ADVOCATE-PH)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 CR.P.C, PRAYING TO SET ASIDE THE
ORDER OF CONVICTION AND SENTENCE PASSED BY THE
J.M.F.C. (VTH COURT) AT MANGALORE IN CC NO.1486/2010
DATED 15.01.2013 AND THE ORDER DATED 16.09.2014, IN
CRIMINAL APPEAL NO.60/2014 PASSED BY THE COURT OF THE
2
IV ADDITIONAL DISTRICT JUDGE & SESSIONS JUDGE, D.K.
MANGALORE BY ACQUITTING THE PETITIONER.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
1. The accused is in the Revision Petition
challenging the order passed in C.C.No.1486/2010
whereby the accused convicted for the offence
punishable under Section 138 of Negotiable
Instrument Act, 1881 and ordered to pay a fine of
Rs.15,00,000/- and out of which, a sum of
Rs.14,95,000/- was ordered to be paid as
compensation to the complainant with default
sentence of one year simple imprisonment, which was
confirmed in the Criminal appeal No.60/2013 by the
first Appellate Court.
2. Brief facts of the case are as under:
A complaint came to be lodged by the
respondent herein contending that the accused has
borrowed a sum of Rs.13,50,000/- as loan with a
condition to repay the same. Towards the repayment
of the same, the accused issued a cheque bearing
No.101848 drawn on Bank of Maharastra,
Hampanakatta, Mangalore, which on presentation
came to be dishonored with an endorsement as
'Exceeds Arrangements' on 16.07.2008. Thereafter,
statutory notice has been issued to the accused. The
notice was served and a vague reply was sent in
respect of the same and there was no compliance of
calling of notice and therefore, the action was sought
against the revision petitioner. Thereafterwards, the
learned Magistrate took cognizance of the offence and
after completing the formalities, secured the presence
of the accused and plea was recorded. The accused
pleaded not guilty. In order to prove the case of the
complainant, the complainant got examined himself as
PW-1 and a private witness by name Sri.K.Sanjeev
Shetty was examined as PW-2 and relied on 12
documents, which were exhibited and marked as
Exs.P1 to P12. In order to rebut the presumption,
accused himself got examined as DW-1 and relied on
3 documents, which were marked as Exs.D1 to D3. In
the accused statement, accused has denied all the
incriminating circumstances found in the prosecution
case. Thereafter, the learned Magistrate heard the
matter in detail and convicted the accused for the
offence punishable under Section 138 of the
Negotiable Instrument Act and ordered to pay a fine
of Rs.15,00,000/- and out of which, a sum of
Rs.14,95,000/- was ordered to be paid as
compensation to the complainant. Being aggrieved by
the same, the accused preferred an appeal before the
District Court in Crl.A.No.60/2013.
3. The learned Judge in the first Appellate
Court after securing the trial Court records and
considering the arguments of the parties in detail,
dismissed the appeal filed by the accused by judgment
dated 16.09.2014. Being aggrieved by the same, the
accused is before this Court in the revision.
4. In this revision petition, the grounds raised
by the revision petitioner have been culled out
hereunder:
6. The conviction and sentence passed by both
the courts below are illegal and not on
proper appreciation of facts on record. The
courts below having come conclusion that
the complainant has failed to produce the
adequate evidence to prove the debt or
liability and the cheque in question issued in
discharge of the same. Failure on the part of
the complainant to prove the essential
ingredients constituting an offence
punishable under section 138 of the N.I. Act,
and ought to have dismissed the complaint.
7. The impugned judgment of conviction and
sentence are illegal and not sustainable both
on question of law and fact. The court below
failed to frame proper points for
consideration before recording the findings.
8. The petitioner submits that, the
complainant/respondent has not produced
alleged agreement entered into between the
respondent and petitioner and the income
tax returns have not produced, even though
the trail court is passed order of conviction is
illegal and not justifiable in law.
9. The lower court has not appreciated the
fact pleaded and the evidence placed
before it, its proper perspective. As such
reasoning given by the lower court is
opposed to the provisions of the Negotiable
Instrument Act and settled principles of
law".
5. Reiterating the said grounds, the learned
counsel for the revision petitioner Smt. Parineeta A
Chanal representing Sri.B.V.Pinto, learned Senior
Counsel contended that both the Courts have wrongly
convicted the accused resulting in miscarriage of
justice and sought for allowing the revision petition.
6. The learned counsel for the respondent
supports the impugned judgment and prays for
dismissal of the revision petition.
7. In view of the rival contentions and having
regard to the scope of the revision petition, the
following points would arise for consideration:
i. Whether the finding recorded by the
trial Magistrate that the accused is
guilty of offence punishable under
Section 138 of Negotiable Instrument
Act, 1881 and ordered to pay a fine of
Rs.15,00,000/- confirmed by the first
Appellate Court is suffering from legal
infirmity or perversity and thus, calls
for interference?
ii. Whether the sentence is excessive?
8. In the case on hand, issuance of the
cheque and the signature found in the cheque is not in
dispute. Admittedly, the loan transaction between the
accused and the complainant is proved by producing
the necessary documentary evidence on record. In
fact, the amount of loan was lent through the cheque.
These aspects of the matter have been properly
considered by raising the presumption in favour of the
complainant by the trial Magistrate. In order to rebut
the presumption, the accused got himself examined as
DW-1 and relied on three documents, which were
exhibited and marked as Exs.D1 to D3. However, in
such evidence, the material evidence placed by the
complainant was not rebutted by placing cogent and
convincing evidence on record by the accused. DW-1
in his cross-examination has admitted that there are
number of loans availed by him. He has also
answered that he has seen the cheque which was
given by him has been torned by the complainant.
When such is the situation, how can the very same
cheque has been presented before the Court and got
dishonourned is a question that remains unanswered.
9. In view of the same, the trial Magistrate
has rightly concluded that the accused has committed
the offence punishable under Section 138 of
Negotiable Instrument Act, which has been rightly
appreciated by the learned Judge in the first Appellate
Court while dismissing the appeal of the accused.
There is no material on record or which would tend to
establish the legal infirmity or perversity in the finding
recorded by the trial Magistrate and confirmed by the
first Appellate Court. Accordingly, point No.1 is
answered in the negative.
10. The dishonored cheque-Ex.P.1 amount is
Rs.13,50,000/- which was issued on 17.04.2010. The
trial Magistrate using the discretion by taking note of
the fact that the cheque got dishonored in the year
2010 awarded fine of Rs.15,00,000/- out of which
Rs.14,95,000/- was ordered to be paid as
compensation to the complainant. In the facts and
circumstances of the case, this Court is of the
considered opinion that no case is made out by the
accused to reduce the compensation amount or fine
amount. Accordingly, point no.2 is answered in
negative and, pass the following;
ORDER
i) Revision Petition sans merit for
consideration and hereby dismissed;
ii) The amount in deposit is permitted to be
withdrawn by the complainant under due
identification and the balance amount to be
paid by the accused on or before
31.12.2021.
Sd/-
JUDGE
Prs*
