H V Somashekara vs Sri. C K Moganna Gowda @ Gopala ...
2021 Latest Caselaw 6167 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 15TH DAY OF DECEMBER, 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO. 520 OF 2021

BETWEEN:

H.V. SOMASHEKARA
S/O. LATE VEERAPPA SHETTY,
AGED ABOUT 35 YEARS,
AGRICULTURIST/COFFEE PLANTER,
R/AT ALDUR HOSAHALLI VILLAGE,
ALDUR POST,
CHIKKAMAGALURU TALUK,
AND DISTRICT-577 111.
                                     ...PETITIONER
(BY SRI. GIRISH B. BALADARE, ADVOCATE)

AND:

SRI. C.K. MOGANNA GOWDA,
@ GOPALA GOWDA,
S/O. LATE C.B. KENCHE GOWDA,
AGED ABOUT 67 YEARS,
AGRICULTURIST/COFFEE PLANTER,
R/AT BEHIND ALDUR PLANTERS,
CLUB, TUDKUR ROAD, ALDUR P.O,
CHIKKAMAGALURU TALUK AND
DISTRICT-577 111
.
                                     ...RESPONDENT
(BY SRI. PRASANNA B.R, ADVOCATE)
                               2


     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED
29.03.2021 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS      JUDGE,     CHIKKAMAGALURU      IN
CRL.A.NO.118/2020 AND JUDGMENT DATED 29.02.2020
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC,
CHIKKAMAGALURU IN C.C.NO.706/2016 AND THE
PETITIONER TO BE ACQUITTED FOR THE OFFENCE
ALLEGED AGAINST HIM.

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

                            ORDER

Though the matter is listed for orders, with the

consent of both the parties, the matter is taken up for

final disposal.

2. Heard Sri. Girish B. Baladare, learned

counsel for the petitioner and Sri. Prasanna B.R, learned

counsel for respondent and perused the records.

3. This revision petition is filed by the revision

petitioner/accused challenging the order dated

29.02.2020 passed in C.C. No.706/2016 on the file of

the Principal Civil Judge and JMFC at Chikkamagaluru,

which was confirmed in Crl.A.No.118/2020 dated

29.03.2021 passed by the Principal District and Sessions

Judge at Chikkamagaluru.

4. The accused, who suffered an order of

conviction under the provisions of Section 138 of the

Negotiable Instruments Act, 1881 (for short N.I. Act)

and ordered to pay a fine of Rs.8,25,000/- to the

complainant, out of which Rs.8,20,000/- to be paid as

compensation to the complainant by the judgment dated

29.02.2020, whereby the accused came to be convicted

and sentenced as under:

"Accused is sentenced to pay a fine of Rs.8,25,000/- for the offence punishable under Section 138 of N.I.Act. In default of payment of fine amount, he shall undergo simple imprisonment for one month. As per Section 357(3) of Cr.P.C., the accused shall pay the compensation of Rs.8,20,000/- to the complainant".

which was confirmed in Crl.A.No.118/2020. Hence, this

revision challenging the validity of both the orders.

5. The brief facts of the case are as under:-

The revision petitioner issued a cheque for a sum of

Rs.5,50,000/- bearing No.029661 dated 11.04.2016,

which on representation, came to be dishonored with an

endorsement 'funds insufficient'. Statutory notice was

issued to the complainant and the same is served on the

accused and despite the same, there is no compliance of

the notice, calling of notice or any reply sent.

Therefore, respondent-complainant was forced to

approach the jurisdictional Magistrate to take action

against the revision petitioner-accused.

6. The presence of the accused was secured

and plea was recorded. Since accused pleaded not

guilty, trial was held. In order to prove the case of the

prosecution, the complainant got examined himself as

P.W-1 and relied on twelve documents which were

exhibited and marked as Exs.P1 to P12 and relied on

certified copy of the sale deed as Ex.D1 The trial

Magistrate having noticed that the cheque was issued is

for legally recoverable debt and accused having failed to

comply the callings of notice, convicted the accused and

ordered to pay a fine of Rs.8,25,000/- of which

Rs.8,20,000/- was ordered to be paid as compensation

to the complainant. Being aggrieved by the same, both

the complainant and accused filed an appeal in

Crl.A.No.102/2020 and Crl.A.No.118/2020. The

complainant sought for enhanced fine amount, where as

accused challenged the very validity of imposing fine of

Rs.8,25,000/-. Learned judge in the First Appellate

Court after re-appreciating the entire material evidence

on record, allowed the appeal of the complainant by

ordering default sentence of simple imprisonment for a

period of six months and dismissing the appeal of

revision petitioner. Being aggrieved by the same, the

accused is before this Court in this revision.

7. Sri. Girish B. Baladare, learned counsel for

revision petitioner contended that both the Courts have

not properly appreciated the material evidence on record

and wrongly convicted the accused and prayed for

allowing the revision. Whereas the learned counsel for

the respondent supported the impugned judgment.

8. Heard the arguments of the earned counsel

for the parties and perused the records.

9. It is an admitted fact that cheque marked at

Ex.P1 came to be issued by the revision petitioner and

the signature found on it is marked at Ex.P1(a) is that of

the revision petitioner. Notice was issued as per Ex.P3,

which was returned unserved as the accused failed to

receive the notice. The agreement between the parties

is marked at Ex.P11. It is contended that the cheque

was issued towards the return of the advance amount in

respect of the sale transaction. Under the

circumstances, the material evidence on record is rightly

appreciated by the trial Magistrate especially in the

absence of any reply notice. The initial burden cast on

the respondent-complainant is discharged by placing

necessary oral and documentary evidence on record.

The complainant enjoyed the presumption under

Sections 118 and 139 of the N.I. Act., which was not

duly rebutted by placing cogent and convincing evidence

by the accused though he got examined himself as DW1

and relied on the certified copy of the sale deed marked

at Ex.D1. Admittedly, the certified copy of the sale deed

shows that the property was sold to somebody else and

not the respondent - complainant. Under the

circumstances, the amount covered under Ex.P1-Cheque

for the legally recoverable debt since it has not been

paid, the offence under Section 138 of N.I. Act stood

proved by placing necessary oral and documentary

evidence on record. However, with regard to the fine is

concerned a cheque of Rs.5,50,000/-, the trial

Magistrate imposed fine of Rs. 8,25,000/-, which is on

the higher side. In the considered opinion of this court

and with regard to nature of prosecution, the cheque is

of the year 2016, this Court is of the opinion that if fine

amount is reduced to Rs.7,50,000/- and entire amount

of Rs.7,50,000/- to be paid as compensation to the

respondent-complainant ends of the justice would be

met. Accordingly, pass the following:-

ORDER

i. Criminal Revision Petition is allowed-in-

part.

ii. While maintaining the order of conviction of the revision petitioner - accused for the offence punishable under Section 138 of N.I. Act, the fine amount awarded by the learned trial Magistrate is reduced to Rs.7,50,000/- in default of payment of fine amount, he shall undergo simple imprisonment for six months as ordered by the first appellate court.

iii. Amount-in-deposit, if any, is ordered to be withdrawn by the respondent-complainant under due identification and the balance amount to be paid on or before 31.12.2021.

Sd/-

JUDGE

AG