Karnataka High Court

Sri Mahadevaiah vs Sri M Jagadeesh on 16 December, 2021

Bench: V Srishananda

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IN THE HIGH COURT OF KARNATAKA, BENGALURU

  DATED THIS THE 16TH DAY OF DECEMBER 2021

                      BEFORE

   THE HON'BLE MR.JUSTICE V. SRISHANANDA

            CRL.RP. NO.118 OF 2018

BETWEEN:

SRI. MAHADEVAIAH
(WRONGLY SHOWN AS MADESHA
IN COURTS BELOW)
S/O VENKATAPPA
AGED ABOUT 45 YEARS
R/AT MUDDINA PALYA
DODDANNA CIRCLE
YASHWANTHAPURA HOBLI
VISHWANEEDAM POST
BENGALURU - 560 091                   ... PETITIONER

(BY SRI. PRASANNA V. R., ADVOCATE)

AND:

SRI. M. JAGADEESH
S/O MADAPPA
AGED MAJOR
R/AT BTS LAYOUT
HEROHALLI
ULLALA MAIN ROAD
NEAR BYADARAHALLI
BENGALURU - 560 091                  ... RESPONDENT

(BY SRI. R. SRINIVAS, ADVOCATE [ABSENT])

    THIS CRIMINAL REVISION PETITION IS    FILED
UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED
12.12.2017 IN CRL.A.NO.32/2017 PASSED BY THE
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LEARNED I ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE
AND ORDER DATED 25.02.2017 IN C.C.NO.8492/2015
PASSED    BY  THE   LEARNED   CHIEF   JUDICIAL
MAGISTRATE,    BANGALORE    RURAL    DISTRICT,
BANGALORE CONVICTING THE PETITIONER FOR THE
OFFENCES PUNISHABLE UNDER SECTION 138 OF THE
NEGOTIABLE INSTRUMENTS ACT AND THE PETITIONER
BE ACQUITTED BY ALLOWING THIS REVISION
PETITION.

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

                       ORDER

Though this matter is listed for admission,

with the consent of both parties, the matter is

taken up for final disposal.

2. Heard Sri.Prasanna V.R., learned counsel

for the revision petitioner and perused the records.

Learned counsel for the respondent is absent.

This revision petition is filed against the order

passed by the learned Magistrate whereby accused

came to be convicted for the offence punishable

under Section 138 of Negotiable Instrument Act,

1881 (hereinafter referred to as 'N.I. Act' for short)

and ordered to pay fine of Rs.3,25,000/- with

simple imprisonment for a period of three months

and with default sentence of simple imprisonment

for a period of one month and out of the fine

imposed on accused i.e., Rs.3,25,000/-, a sum of

Rs.3,00,000/- was ordered to be paid as

compensation to the complainant, which was

confirmed in Criminal Appeal No.32/2017.

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

4. Accused stood trial for the offence

punishable under Section 138 of N.I. Act. As

admittedly, the cheque passed on by him got

dishonored and he failed to comply with callings of

statutory notice. The trial Magistrate after

considering the oral and documentary evidence on

record including the oral testimony of DW-1, the

accused was convicted for the offence punishable

under Section 138 of N.I. Act and passed an order

of sentence whereby, accused was required to

undergo Simple Imprisonment for a period of three

months for the offence punishable under Section

138 of N.I. Act and ordered to pay fine of

Rs.3,25,000/- out of which, a sum of Rs.3,00,000/-

was ordered to be paid as compensation to the

complainant and remaining amount of Rs.25,000/-

shall vest with the State towards defraying

expenses, which was confirmed by the First

Appellate Court. The accused has challenged the

orders passed by the trial Court as well as First

Appellate Court on the following grounds:-

1. "The Judgment and Orders impugned in this petition are opposed to law, facts and circumstances of the case.

2. The Judgment and orders impugned passed by the Courts below are unsustainable and passed without proper appreciation of the entire case of the parties.

3. The Judgment and orders of conviction are based on assumption and presumption without there being any independent

documentary evidence except cheque in question.

4. The Respondent has filed Complaint under Section 138 of the N.I.Act, 1881. The burden is on the Respondent complainant to prove the fact that the said Cheque was issued in order to discharge a legally enforceable debt. Admittedly, there is no documentary evidence by the Complainant on order to prove the existence of legally recoverable debt from the Accused, except the cheque in dispute. Even there is no whisper either in the legal notice or in the Complaint or in his affidavit in lieu of examination in chief, when and where he advanced the loan of Rs.2,50,000/- to the accused, what are the documentary proof thereof showing agreed rate of interest and payable and at what time, etc., In the absence of the above, the Courts below ought not to have order for conviction of the accused merely because presumption under Section 118 & 139 of N.I.Act, 1881 is in favour of the Complainant unless there are supporting evidence. Under the circumstances, therefore, the Courts below are erred in holding that the provisions of Section.138 of the NI Act is attracted.

5. The actual name of the Petitioner/Accused is Mahadevaiah whereas notice of demand under Section 138 of NI Act was addressed in the name of Madesha which has not been duly served on the Accused but some body else must have been received vide Ex.P-5, as such, there is no cause of action to institute the complaint. However, the Courts below assumed that since summons in CC No.8492/2015 is served on the Accused in the same name of Madesha who appeared, the demand notice is served and his defense is untenable. The fact remains that the summons was served the Police who insisted the Accused to appear in the case and on the other hand, the cause title in the Order of conviction show as Madesha, the Petitioner was made to mention his name as Madesha only even in the appeal and in this revision petition in order to avoid technical office objections. Therefore, the Judgment and Orders impugned are liable to set-aside.

6. The courts below have failed to appreciate the fact that the judgment in Rangappa's case passed by the Hon'ble Apex Court is applicable and erred in holding that the judgment of Hon'ble Apex court in K Subramani's case is not applicable to the facts of the case. It is not the facts of the

case to be applicable but ratio and law declared by Hon'ble Apex Court is relevant.

7. The finding of the Courts below to the effect that the complainant has proved that there exist legally recoverable debt is erroneous in the absence of materials other than the presumption available. The PW-1 admits that he did not reported the factum of alleged loan to the Department of income tax and not shown in his returns which I sufficient to disbelieve the case of the Complainant. On the other hand, the Courts below proceeded on the bases that the Accused has failed to rebut the presumption even though the Complainant has not discharged his burden. There is no dispute that the Complainant had advanced Rs.20,000/- earlier which amount has been repaid, but the dispute is as to whether the Cheque in question stated to be collected towards security is returned to the Accused or not. When such being the position, it was the burden of the Complainant what are the documentary evidence to prove when and what date he advanced the money of Rs.2,50,000/- other than, Rs.20,000/- earlier.

8. The admission of PW-1 during his cross examination as to non mentioning date of

alleged advance, purpose of alleged advance, non product of document in proof of contract reg. payment of interest, his source of money to advance, no independent witness except his wife, etc., and non examination of his wife the alleged witness to the transaction are fatal to the case of the Complainant.

9. Though the Courts below have referred several Judgments of both the Hon'ble Supreme Court as well as this Hon'ble Court, the same have not been appreciated in its proper perspective. In the peculiar facts and circumstances of the present case, the burden of proving the legally enforceable debt or liability is on the Respondent Complainant since the Petitioner has pleaded that the cheque was issued towards security."

5. Reiterating the above grounds, learned

counsel for the revision petitioner contended that

both the Courts have wrongly convicted the

accused. Alternatively, Sri.Prasanna V.R., learned

counsel for the revision petitioner contended that

even if this Court were to hold that the accused is

guilty of the offence punishable under Section 138

of N.I. Act, a sum of Rs.25,000/- ordered towards

defraying expenses of the State needs to be set

aside so also imprisonment may be set aside.

6. Learned counsel for the respondent -

complainant remained absent on the previous

occasion as well as on today.

7. In the light of the arguments advanced by

the counsel for the revision petitioner, following

points would arise for consideration:-

"1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offence punishable under Sections 138 of N.I. Act, which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

8. In the case on hand, issuance of cheque

and the signature found on the cheque at Ex.P1, as

such, the complainant enjoys the presumption

available to him under the provisions of Sections

118 and 139 of N.I. Act is not in dispute. In order

to rebut the said presumption, accused got

examined himself as DW-1. However, in his

evidence there is no cogent and convincing

evidence on record to rebut the presumption

available to the complainant. As such, trial

Magistrate was justified in holding that accused is

guilty of the offence punishable under Section 138

of the N.I. Act which has been rightly re-

appreciated and confirmed by the First Appellate

Court even after reconsideration of the entire

materials on record.

9. Hence, this Court is of the considered

opinion that there is no compelling reasons for this

Court to hold that the finding recorded by the trial

Magistrate as well as First Appellate Court is

suffering from legal infirmity, perversity and thus,

calls for interference. Accordingly, point No.1 is

answered in the Negative.

Point No.2:-

10. Insofar as sentence is concerned,

admittedly cheque is in a sum of Rs.2,50,000/-.

The trial Magistrate in its discretion imposed fine of

Rs.3,25,000/- along with simple imprisonment for a

period of three months.

11. It is submitted at the Bar that already a

sum of Rs.1,62,500/- has been deposited by the

revision petitioner before the trial Court. Taking

note of the said fact and he is also willing to pay

balance sum, out of Rs.3,00,000/-, this Court is of

the considered opinion that simple imprisonment for

a period of three months needs to be set aside.

12. Primarily, the amended N.I.Act is to

serve the purpose of compensating the complainant

or the holder of the cheque and it is not intended to

punish anybody. It is only in a extreme

circumstances the imprisonment is sought for.

Therefore, taking note of the said aspect of the

matter, simple imprisonment for a period of three

months ordered by the trial Magistrate needs to be

set aside as it is excessive. Further, since it is a

private affair between complainant and accused,

ordering Rs.25,000/- towards defraying expenses

for the State also needs to be interfered with.

Accordingly, the said portion of the sentence also

need to be set aside. In view of the same, point

No.2 is answered in the Affirmative and pass the

following:-

ORDER

(i) This 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, infact the order

of sentence is modified by directing the

revision petitioner to pay a sum of

Rs.1,37,500/- on or before 15.01.2022.