Sri. Ajay Gupta S/O Ram Avad Gupta vs Sri. Banakar Manjunath S/O ...
2021 Latest Caselaw 1646 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

  DATED THIS THE 26th DAY OF FEBRUARY 2021

                           BEFORE

        THE HON'BLE MR.JUSTICE K. NATARAJAN

   CRIMINAL REVISION PETITION NO.100050/2020

BETWEEN:

SRI. AJAY GUPTA, S/O RAM AVAD GUPTA,
AGE ABOUT 44 YEARS,
R/O GHORPADE NAGAR, TORANAGALLU R.S.
SANDUR TALUK, DIST. BALLARI 583 119.
                                                 .. PETITIONER
(BY SRI. T.M. NADAF, ADVOCATE)

AND:

SRI. BANAKAR MANJUNATH
S/O BHEEMEPPA
AGED ABOUT 41 YEARS,
OCC: ADVOCATE, R/O BHUJANGANAGAR VILLAGE,
SANDUR TALUK, DIST. BALLARI 583 119.
                                     .. RESPONDENT
(BY SRI. S.S.YADRAMI, ADV.)


     THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION
397 READ WITH 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
OF CONVICTION AND ORDER OF SENTENCE DATED 7.1.2019 IN CC
NO.621/2016 PASSED BY THE LEARNED CIVIL JUDGE AND JMFC,
SANDUR AND THE JUDGMENT DATED 30.09.2019 PASSED BY THE II
ADDL. DISTRICT AND SESSIONS JUDGE, BALLARI, IN CRL.A.9/2019 FOR
THE OFFENCE UNDER SECTION 138 OF NI ACT.
                                          2




     THIS PETITION COMING ON FOR ADMISSION THROUGH PHYSICAL
HEARING/VIDEO CONFERENCING HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:

                                  ORDER

This criminal revision petition is filed by the

petitioner/accused under Section 397 of the Code of Criminal

Procedure, 1973, for setting aside the judgment of conviction and

sentence dated 07.01.2019 passed by the learned Civil Judge and

JMFC, Sandur, (hereinafter referred to as the 'trial Court') in CC

No.621/2016 and upheld by the learned II Additional District and

Sessions Judge, Bellary (hereinafter referred to as the 'first

appellate Court'), in Criminal Appeal No.9/2019 dated 30.09.2019

for having convicted the petitioner for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881 (hereinafter

referred to as the 'NI Act') and sentenced to undergo imprisonment

for one year and to pay fine of `5,000/- in default of payment of

fine, to undergo simple imprisonment for one month and ordered

that accused shall pay compensation of `30,000/- to the

complainant as contemplated under Section 357 of Cr.P.C.

2. Heard the arguments of the learned counsel for the

petitioner and the learned counsel for the respondent.

3. The rank of the parties before the trial Court is retained

for convenience.

4. The case of the complainant before the trial Court is

that the accused had borrowed a loan of `30,000/- from the

complainant and to discharge the said loan, he issued a cheque

bearing No.958956 dated 30.05.2016 and when the same was

presented for encashment, it was dishonoured with an endorsement

"funds insufficient" and a legal notice was issued to the accused on

05.07.2016 but the accused gave vague reply. Hence, a complaint

came to be filed under Section 138 of NI Act.

After cognizance, the trial Court secured the presence of the

accused. The accusation was read over to the accused. He has

denied the same and pleaded not guilty. The complainant in support

of his case examined himself as PW-1 and got marked 5 documents

and after completion of evidence, statement of the accused under

Section 313 of Cr.P.C. was recorded. The case of the accused is

one of total denial and he himself examined as DW-1. After hearing

the arguments, the trial Court found the accused guilty and

convicted and sentenced as stated supra. Assailing the same, the

accused approached the first appellate Court which also came to be

dismissed confirming the judgment of conviction and sentence

passed by the trial Court. Hence, the accused is before this Court.

5. Learned counsel for the petitioner contended that the

judgment of both the Courts below is not sustainable. There is

material contradictions in the evidence of PW-1 and the documents.

There is no document produced to show that the amount has been

actually borrowed by the accused. The cheque was given to the

complainant much earlier to the said date but the same was

misused by the complainant and the same is not considered by the

trial Court and the first appellate Court. However, the learned

counsel alternatively argued that sentence imposed by the trial

Court, both, imposing imprisonment as well as fine, is too harsh

and disproportionate to the offence committed. Therefore, prayed

for modification of the sentence by imposing fine alone.

6. Per contra, the learned High Court Government Pleader

supported the judgment of conviction and sentence passed by both

the Courts below and contended that the accused borrowed money

and issued a cheque which is not in dispute, the signature is also

not in dispute. Such being the case, the question of disbelieving

the evidence of PW-1 does not arise. Presumption under Section

139 of NI Act is in favour of the complainant. However, there is no

illegality committed by both the Courts below in passing the

judgment of conviction and sentence. Hence, prayed for dismissing

the petition.

7. Upon hearing the arguments of the learned counsel for

the parties, and on perusal of the records, it is clear that the

relationship between the parties is not in dispute. The accused has

also not disputed issuance of cheque to the complainant and the

evidence of PW-1 and Exs.P-1 to P-5 documents, the cheque and

notice corroborates with the evidence of PW-1. Though DW-

1/accused examined himself and stated that there is no such due

payable by the accused but no documents are produced or

examined any witnesses. Therefore, the contention of the accused

was not accepted by the trial Court. The trial Court after

appreciation of the evidence on record, has rightly come to the

conclusion that offence is committed by the accused. Therefore,

the concurrent findings of both the courts below are not required to

be interfered with. The finding of conviction does not require re-

consideration. However, in respect of the sentence passed by the

trial Court is one year imprisonment and fine of `5,000/-. The

offence under Section 138 of NI Act provides imposing

imprisonment up to two years and to pay fine double the cheque

amount or with both. Here in this case, the cheque amount is only

`30,000/- and in my considered opinion, imposition of both

imprisonment and fine is little bit harsh and disproportionate to the

offence committed by the accused. Therefore, the sentence of

imprisonment requires to be set aside and modified.

8. Accordingly, I pass the following order.

The Criminal Revision Petition is allowed in part. The

judgment of conviction dated 07.01.2019 passed by the learned

Civil Judge and JMFC, Sandur, in CC No.621/2016 and upheld by

the learned II Additional District and Sessions Judge, Bellary, in

Criminal Appeal No.9/2019 dated 30.09.2019 is hereby confirmed.

However, the sentence imposed by the trial Court is hereby set

aside and modified as under:

The petitioner/accused is sentenced to pay fine of `35,000/-

and in default of payment of fine, the petitioner shall undergo

imprisonment for one month. Fine amount shall be paid within two

weeks from the date of receipt of a copy of this order. The amount

if any deposited shall be adjusted. Out of the fine amount

collected, `30000/- shall be paid to the complainant as

compensation as contemplated under Section 357 of Cr.P.C.

The amount in deposit before this Court is ordered to be

released in favour of the respondent/complainant on due

identification.

Sd/-

JUDGE

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