Karnataka High Court

Sri Rayappa vs Ms M Agnes Mary on 22 December, 2021

Bench: V Srishananda

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 22ND DAY OF DECEMBER, 2021

                      BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO. 160 OF 2013

BETWEEN:

SRI. RAYAPPA,
S/O. SRI. ANTHONAPPA,
AGED ABOUT 41 YEARS,
RESIDING AT:
DODDABASAVANAPUR (LOURD NAGAR)
VIRGO NAGAR POST,
BENGALURU-560 049.
                                     ...PETITIONER
(BY SRI. JAVEED S, AMICUS CURIAE)

AND:

MS. M. AGNES MARY,
D/O. SRI. MARISWAMY,
AGED ABOUT : MAJOR,
RESIDING AT:
DODDABASAVANAPUR (LOURD NAGAR)
VIRGO NAGAR POST,
BENGALURU - 560 049

SINCE DEAD
REPRESENTED BY HIS LRS

R1(a) MS.REJINIMMA
     W/O ANTHONY
                        2

    AGE 61 YEARS,
    R/O. NO.1 HOOVANAGARA STREET,
    ANEKAL, BENGALURU-562 106.

R1(b) MS.. THERASAMMA,
     W/O. JACOB P.R,
     AGED ABOUT 60 YEARS,
     R/O. 24/6, 1ST CROSS,
     PRIYANKA NAGAR MAIN ROAD,
     NEAR GOVT SCHOOL, K.R. PURAM,
     SEEGEHALLI, BENGALURU-560 049.

R1(c) MS.VERONICA,
      C/O. ANTHONY P,
      AGED ABOUT 52 YEARS,
      R/O. 259, NEW NO.305,
      HOSUR ROAD, MAHALINGESWARA LAYOUT,
      AUDOGODI, BENGALURU-560 030.

R1(d)MR. BALARAJU,
     S/O. LATE MARISWAMY,
     AGED ABOUT 46 YEARS,
     R/O. CHURCH ROAD,
     DODDABASAVANAPURA,
     K.R.PURAM, BENGALURU-560 036

                                  ...RESPONDENTS
(BY SRI. S KASINAGALINGAM, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 17.09.2012 PASSED BY THE ADDITIONAL
SENIOR JUDGE, PRESIDING OFFICER, FAST TRACK
COURT-III,   MAYO    HALL,    BENGALURU    IN
CRL.A.NO.25130/2011 CONFIRMING THE JUDGMENT
AND ORDER DATED 18.07.2011 PASSED BY THE XIV
                                  3

ACMM, BENGALURU IN                   C.C.NO.35681/2009            AND
ACQUIT THE PETITIONER.

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

                            ORDER

The accused, who suffered an order of conviction

under Section 138 of Negotiable Instrument Act, 1881

(hereinafter referred as 'N.I.Act' for short), in

C.C.No.35681/2009, which was confirmed in

Crl.A.No.25130/2011 is in this revision petition.

2. During the pendency of this revision petition,

learned counsel Sri. H.K. Singh on behalf of Singh and

Rani Associates failed to address the arguments and this

court appointed Sri. Javeed S, learned Amicus Curiae, to

represent the revision petitioner.

     3.    Heard     Sri.        Javeed      S    and      Sri.     S

Kasinagalingam for R1 (a-d).           During the pendency of

the revision petition, original respondent-complainant

died and therefore legal representatives of deceased

respondent are brought on record as R1(a to d).

4. The brief facts of the case are that :

The cheque, which was issued by the accused

towards legally recoverable debt in a sum of

Rs.2,00,000/- came to be dishonored and the statutory

notice having been issued stood not complied by and

there is no compliance to the callings of notice by the

accused resulting in filing of the complaint seeking

action against the accused. On completing the

formalities, the learned Magistrate took cognizance of

the offence and secured the presence of the accused

and recorded a plea. The accused pleaded not guilty

and therefore, trial was held. In order to prove the

case of the complainant, complainant got himself

examined as DW1 and the prosecution relied on eight

documents which are marked at Exs.P1 to P8. The

accused statement as contemplated under Section

313 Cr.P.C was recorded, wherein the accused denied

all the incriminatory materials. The accused also got

examined himself as PW1 and relied on documentary

evidence as Ex.D1. On conclusion of the trial, the trial

Magistrate heard the parties in detail and recorded an

order of conviction against the accused for the offence

punishable under Section 138 of N.I.Act and awarded

a fine of Rs.2,50,000/- with default sentence of simple

imprisonment for one year. Out of the fine amount,

sum of Rs.2,40,000/- was ordered to be paid as

compensation to the complainant.

5. Being aggrieved by the same, the accused

preferred an appeal before the District Court in First

Appellate Court, Mayo Hall Unit, Bengaluru in

Crl.A.No.25130/2011. The learned judge in the First

Appellate Court after securing the records and hearing

the parties in detail, in the light of the appeal grounds,

dismissed the appeal by judgment dated 17.09.2012

confirming the order of trial Magistrate. Being

aggrieved by the same, the accused is before this

Court in this revision.

6. In the revision petition following grounds

have been raised:

• The learned trial judge erred in convicting the appellant for the offence under Section 138 of Negotiable Instruments Act, sentencing him to a fine of Rs.2,50,000/- and in default to pay the fine to suffer simple imprisonment for one year. The judgment of the trial Court is opposed to law and natural justice.

• That the Courts below have committed serious error in coming to go conclusion that the mandatory requirement of Section 138 of Negotiable Instruments Act has been fulfilled by the respondent.

• The trial Court further erred in imposition of fine amount of Rs.2,50,000/- is illegal, against to the natural justice. There is no evidence on record on order for conviction of the appellant. The essential ingredients of the offence are not established.

• The complainant is not produced any proof for having given money to the

accused. Although the appellant has submitted that he has evidence to defend himself, in his statement recorded under Section 313 of Criminal Procedure Code, 1973 the trial Court has failed to give him an opportunity to lead his evidence and present his defence, as such the order is highly illegal and is liable to be set aside by this Hon'ble Court.

• The trial Court erred in convicting the appellant even though the complaint is failed to prove liability of the accused.

• That the courts below ought to have drawn adverse inference against the respondent as no material documents have been produced by the respondent to show that the respondent had capacity to give amount as loan.

• The trial Court erred in convicting the appellant that the cheque in question was not issued for discharge of any legally enforceable debt or liability.

• That the courts below have not appreciated the materials elicited by the petitioner in a proper perspective.

• The trial Court further erred in convicting the appellant accused even though the respondent has not proved the service of notice has contemplated under Section 138 of NI.Act.

• That the courts below have failed to consider the evidence of petitioner who has examined himself as DW1 and clearly disputed the transactions. Under these circumstances the burden is on the respondent to prove his case by placing cogent materials before the Court and in the absence of production of those materials the conviction of the petitioner is unsustainable.

• That the trial court has not properly construed the section 138, 139 and 140 of the Negotiable Instruments act in the absence of any corroborative evidence to prove the case.

• That the courts below ought to have accepted the reported decisions relied upon the petitioner in supported of his case.

• That the courts below have committed serious error in not taking in to account the petitioner has successfully rebutted the evidence as required under Section 138 of Negotiable Instruments Act.

•    That the sentence passed by the
Courts below is harsh and severe.

•     That the entire approached of the

Courts below is illegal, invalid and the same has resulted in mis-carriage of justice.

6. Reiterating the above grounds, learned

Amicus Curiae Sri. Javeed S, voluntarily contended

that both the Courts have wrongly recorded the order

of conviction resulting in miscarriage of justice and

sought for allowing the revision petition. He also

contended that in the event this Court is confirming

the order of the trial Court, the fine amount may be

reduced.

7. Per contra, learned High Court Government

Pleader representing the legal representatives of

deceased complainant, supported the impugned

judgment.

8. In view of the rival contentions and having

regard to the limited scope of the revisional

jurisdiction, following points would arise for

consideration:

i. Whether the finding recorded by the trial Magistrate confirmed by the First Appellate Court that accused is guilty of the offence punishable under Section 138 of N.I. Act is suffering from legal infirmity and perversity and thus calls for interference?

ii. Whether the sentence is excessive?

9. In the case on hand, issuance of cheque

and signature found therein is not in dispute.

Accordingly, there is initial presumption available to

the complainant under Section 118 and 139 of N.I.

Act. In order to rebut the said presumption, the

accused no doubt examined himself as DW1 and relied

on documentary evidence DW1. The trial Magistrate

took note of the oral testimony of DW.1 and also

evidentiary and probative value of Ex.D1. Ex.D1 is a

legal notice issue by another accused to the

complainant and same would not rebut the

presumption available to the complainant so as to

doubt the case of the complainant. Accordingly trial

Magistrate was justified in granting order of conviction

against the accused for the offence punishable under

section 138 N.I.Act, which has been rightly

appreciated by the learned judge in the First Appellate

Court.

10. Hence, this Court is of considered opinion

that there is no legal infirmity or perversity in

reaching out the finding that the accused has

committed the offence punishable under Section 138

of N.I. Act which has been rightly re-appreciated by

the learned judge in the First Appellate Court.

Accordingly, Point No.1 is answered in the 'Negative'.

11. Regarding Point No.2:

For the cheque amount of Rs.2,00,000/-, the

trial Magistrate has awarded a sum of Rs.2,50,000/-.

Taking note of the peculiar facts and circumstances of

the case on hand especially when the complainant is

dead and legal representatives are brought on record,

this Court is of considered opinion in reducing the fine

amount from Rs.2,50,000/- to 2,25,000/- and if the

entire amount of Rs.2,25,000/- is ordered to be paid

as compensation to the legal representatives of the

complainant, the ends of justice would be met and

hence Point No.2 is answered 'Partly-in-affirmative'

and no amount is needs to be paid as defraying

expenses to the State. Accordingly, 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 N.I. Act, the fine amount awarded by the trial Magistrate

confirmed by the First Appellate Court is reduced to Rs.2,25,000/- and entire amount of Rs.2,25,000/- is ordered to be paid as compensation to the legal representatives of the complainant, who are respondents No.1(a-d) under proper identification.