Jayaram S/O Narasimhegowda vs G N Suresh Babu
2021 Latest Caselaw 5481 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 4TH DAY OF DECEMBER, 2021

                     BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA


 CRIMINAL REVISION PETITION NO.411/2012


BETWEEN:

JAYARAM,
S/O NARASIMHEGOWDA,
AGED ABOUT 45 YEARS,
R/AT HULLENAHALLI VILLAGE,
NONAVINAKERE HOBLI,
TIPTUR TALUK.
                                    ... PETITIONER

(BY SRI.RAVI H.K., ADVOCATE FOR
    M/S.H.KANTHARAJA ASSOCIATES, ADVOCATES)

AND:

G.N.SURESH BABU,
S/O LATE G.K.NARAYANASHETTY,
AGE: MAJOR,
R/AT HULLENAHALLY,
NONAVINAKERE HOBLI,
TIPTUR.
                                    ...RESPONDENT

(BY SRI.B.G.THAMMAIAH, ADVOCATE)
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     THIS CRIMINAL REVISION PETITION IS FILED
UNDER     SECTION 397    READ WITH 401 OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 27.02.2012
PASSED BY THE P.O., FTC, TIPTUR IN CRL.A.NO.36/2010
AND ORDER DATED 09.03.2010 PASSED BY THE PRL. C.J.,
(JR.DN.) AND JMFC, TIPTUR IN C.C.NO.940/2005.


     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-


                        ORDER

Heard Sri. Ravi H K, learned counsel for revision

petitioner and Sri. B.G. Thammaiah, learned counsel

for respondent and perused the records.

2. This revision petition is filed by the accused

challenging the judgment dated 09.03.2010 passed in

C.C. No.940/2005 on the file of Prl. Civil Judge (Jr.Dn)

& JMFC, Tiptur whereby the accused convicted for the

offences punishable under Section 138 of Negotiable

Instruments Act and ordered to pay a fine amount of

Rs.9,90,000/- as compensation to the complainant

and also simple interest for one year which was

confirmed by the First Appellate Court in Criminal

Appeal No. 36/2010.

3. Sri. Ravi, learned counsel for the revision

petitioner submitted that he has issued notice to the

accused by RPAD but the acknowledgment has not yet

received. After taking note of the said aspect, he may

be permitted to address further arguments in the

matter.

4. Brief facts of the case are as follows:

In respect of loan transaction between the

complainant and the accused, the accused has issued

cheque bearing No.361019 dated 24.06.2005 for

Rs.10,00,000/- drawn on Vijaya Bank, Tiptur Branch

which on presentation came to be dishonoured with an

endorsement "Funds insufficient". The legal statutory

notice was issued on 26.01.2005. The said legal

notice was not served as the accused refused to

receive the notice. There was no compliance and a

complaint came to be filed seeking action against the

revision petitioner under Section 138 of Negotiable

Instruments Act. Accused appeared before the Court

and plea was recorded. Since the accused pleaded

not guilty, trial was held.

5. In order to establish the case of the

complainant, the complainant got examined himself as

PW.1. and relied on 6 documents which comprising of

original cheque, bank endorsement, memo, returned

cover with acknowledgment and complaint which were

marked and exhibited as Exs.P1 to Ex.P6.

6. On conclusion of the trial, the accused

statement as contemplated under Section 313 of

Cr.P.C. was recorded and he denied all the

incriminatory circumstances. However, the accused

was not examined as a witness and did not place any

documents to rebut the presumption available to the

revision petitioner under Sections 118 and 139 of the

N.I. Act.

7. Learned Magistrate after considering the

necessary oral and documentary evidence on record,

convicted the accused for the offence punishable

under Section 138 of the Act and ordered to pay fine

amount of Rs.10,00,000/- with a default sentence of

simple imprisonment for a period of one year. Out of

which a sum of Rs.9,90,000/- was ordered to be paid

as compensation to the complainant. Being aggrieved

by the same, an appeal was filed by the complainant

in Crl.A.No.36/2010 on the file of Fast Track Court,

Tiptur.

8. The learned judge in the First Appellate

Court secured the records and after hearing the

parties, dismissed the criminal appeal by confirming

the judgment and order of sentence passed by the

learned Magistrate. Being aggrieved by the same, the

accused is in this revision.

9. In the revision petition, following grounds

were raised:

"1. The Courts below have committed serious error in convicting the petitioner without sufficient evidence of record and passing the sentence on the self serving statement of PW.1.

2. The judgment and order of both the Courts are perverse being opposed to the evidence on record and illegal.

3. That the judgment and orders of both the courts below are contrary to the evidence on record.

4. That Trial Court utterly failed in providing fair opportunity to the petitioner to lead evidence to disprove the case of the respondent at the state of trial.

5. That the relationship between the petitioner with respondent is only a guarantor, to secure the loan which was advanced by the respondent in favour of D.Shashikumar resident of House

No:MIG1/15, Housing Board Colony Chikkamagalur Town and he executed agreement dated 21.03.2005. On that day only the petitioner was known to this respondent and no other transactions have taken place between the petitioner and respondent till today.

6. That the presumption of debt or liability has not arisen in this case as enunciated under Section 139 of the Negotiable Instruments Act are not attracted in the instant case.

7. That the Courts below erroneously have come to the conclusion without appreciating the matter in right perspective.

8. That the reasons assigned by both the Courts below are unsustainable in the eye of law.

9. Thus looking at any angle, both the courts below have seriously erred in passing the order of conviction and sentence against the petitioner.

10. That the petitioner craves leave of this Court to urge other grounds at the time of arguments."

10. Reiterating the above grounds, learned

counsel for the revision petitioner contended that both

the Courts have not properly appreciated the evidence

on record. He pointed out that when the revision

petitioner entered into an agreement dated

21.03.2005 the transaction between Suresh Babu and

the present revision petitioner was treated as secured

and therefore, the liability cast on the present revision

petitioner and hence in the absence of any legally

recoverable debt cannot be taken note of by the

accused for the offence punishable under Section 138

of N.I. Act and sought for allowing the revision

petition.

11. Per contra, learned counsel appearing for

the respondent/complainant supported the impugned

judgment and contended that the alleged agreement

dated 21.03.2005 has not seen the light of the day as

the revision petitioner has failed to place the

documents to rebut the presumption available to the

complainant. He also contended that the Trial Court

and the First Appellate Court has rightly convicted the

accused for the aforesaid offence and sought for

dismissal of the revision petition.

12. In view of the rival contentions, the

following points would arise for consideration:

1. Whether the finding recorded by the learned Magistrate that the accused is guilty of the offence punishable under Section 138 of the N.I. Act is suffering from legal infirmity or perversity and thus calls for interference?

2. Whether the sentence is excessive?

13. In the case on hand, issuance of cheque

and the signature found on it, is not in dispute. Even

according to the revisionary grounds in order to

substantiate the same, the revision petitioner has

produced the agreement dated 21.03.2005 before this

Court. The fact that issuance of cheque and signature

not being in dispute, automatically the complainant

enjoys the presumption under Section 118 and 139 of

N.I. Act. The revision petitioner stood as a guarantor

and there is no evidence placed on record and for the

reasons best known to the revision petitioner, he did

not examine himself before the Trial Magistrate. In

the absence of any such evidence, to rebut the

presumption in the finding recorded by the Trial

Magistrate that the accused failed to pay the loan

amount and cheque issued by him having been

dishonoured for want of time.

14. It is settled principle of law that the

complainant enjoys the presumption under Sections

118 and 139 of the N.I. Act. It is for the accused to

rebut the said presumption as the judgment of the

Hon'ble Apex Court in the case of INDIAN BANK

ASSOCIATION AND OTHERS Vs. UNION OF

INDIA AND OTHERS reported in (2014) 5 SCC

590. In the case on hand, accused did make an

attempt not only to examine herself but also by

examining the other witnesses to rebut the

presumption. But the materials on record, clearly

indicate that the accused has failed to rebut the

presumption and there is a factual finding by both the

Courts that there exists a legally recoverable debt and

the cheques were issued for the purpose of repayment

of the legally recoverable debt. Accordingly, there is

no factual error or jurisdictional error in recording the

finding that the accused is guilty of the offence

punishable under Section 138 of the N.I. Act. Hence,

point No.1 is answered in the negative.

15. Insofar as the sentence is concerned, in

respect of the total sum of Rs.10,00,000/- fine

amount, the learned Magistrate has ordered a sum of

Rs.9,90,000/- as compensation payable to the

complainant since it is a private affair between the

accused ordering Rs.10,000 towards expenses to the

State cannot be countenanced in law. Further,

awarding simple imprisonment and payment of fine

would act harshly on the Revision Petitioner. Hence,

the same needs interference by this court.

Accordingly, point No.2 is answered partly in

affirmative and pass the following:

ORDER

a. Criminal revision petition is allowed-in-part.

b. While maintaining the order of conviction as against the accused, the accused is directed to pay the entire sum of Rs.10,00,000/- as compensation to the complainant. In default, the revision petitioner shall undergo simple imprisonment for a period of one year.

c. The amount in deposit if any is ordered to be withdrawn by the complainant and the balance amount to be paid by the revision petitioner on or before 31.01.2022.

Sd/-

JUDGE SSD