Puttaswamy vs Krishnegowda M K
2021 Latest Caselaw 470 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 8TH DAY OF JANUARY, 2021

                          BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

   CRIMINAL REVISION PETITION No.51 OF 2015

BETWEEN :
Puttaswamy,
S/o. Puttegowda,
Aged about 63 years,
R/at Kogilur Village,
Chunchanakatte Hobli,
K.R.Nagara Taluk,
Mysore District-571617.
                                                 ...Petitioner
(By Sri. Chandrashekara K.A., Advocate)

AND :
Krishnegowda M.K.,
S/o. Keseregowda,
Aged about 58 years,
R/at Makodu Village,
Ravandur Hobli,
Periyapatana Taluk,
Mysore District-571107.
                                               ...Respondent

(By Sri. N.V.Nagesh, Advocate for
    Sri. P.M.Siddamallappa, Advocate)

       This Criminal Revision Petition is filed under Section
397 read with 401 of Cr.P.C. praying to set aside the order
of conviction and sentence dated 02.04.2014 passed by
learned Additional Senior Civil Judge and JMFC, Hunsur
sitting at Periyapatna, in C.C.No.26/2014 and confirmed by
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the Learned III Additional Sessions Judge at Mysore by the
judgment     and     order    dated     15.11.2014,   vide
Crl.A.No.96/2014, for the offence punishable under
Sections 138 of N.I.Act and to Acquit the petitioner.

      This Criminal Revision Petition coming on for Final
Hearing, this day, the Court made the following:

                         ORDER

Heard both sides.

2. This revision petition is filed against the order

passed by the learned Senior Civil Judge and JMFC,

Hunasuru sitting at Periyapatna in C.C.No.26/2014 dated

02.04.2014 whereby the revision petitioner/accused was

convicted for the offence under Section 138 of Negotiable

Instruments Act (hereinafter referred to as 'N.I.Act' for

short) and ordered to pay a sum of Rs.95,000/- as

compensation to the complainant/respondent and

Rs.3,000/- towards fine to the State and also to undergo

simple imprisonment for a period of six months, which was

confirmed in Crl.A.No.96/2014 on the file of the III

Additional Sessions Judge, Mysuru vide judgment dated

15.11.2014.

3. The brief facts which are necessary for disposal

of the revision petition are as under:

A complaint came to be filed under Section 200 of

Cr.P.C. read with Section 138 of N.I.Act stating that the

revision petitioner/accused has borrowed a sum of

Rs.50,000/- for his personal necessities on 15.07.2011 and

in order to repay the said loan amount, he had issued a

cheque on 15.07.2011 bearing No.067838 in favour of the

complainant drawn on State Bank of Mysuru, Haleyur

Branch, K.R.Nagar. It is further contended that the

cheque on presentation came to be dishonored and

statutory legal notice is issued; which came to be returned

with an endorsement 'unclaimed' and the accused has not

repaid the amount within 15 days of the issuance of

notice; whereby he has committed an offence punishable

under Section 138 of N.I.Act.

4. Before the learned Magistrate, presence of the

accused was secured and plea was recorded and the

accused did not plead guilty and as such the trial was held.

5. In order to prove the complaint averments the

complainant got examined himself as PW1 and another

witness as PW2 and 6 documents were exhibited and

marked as Ex.P.1 to P.6. All the incriminating

circumstances were put to the accused at the time of

recording his statement as contemplated under Section

313 of Cr.P.C. Thereafter the accused got examined

himself as DW1, but no documents were marked on his

behalf.

6. Learned Magistrate on cumulative

consideration of the oral and documentary evidence on

record convicted the accused and ordered that a sum of

Rs.98,000/- as compensation and six months simple

imprisonment for the offence punishable under Section 138

of N.I.Act. Out of the fine amount a sum of Rs.95,000/-

was ordered to be paid as compensation to the

complainant as contemplated under Section 357(3) of

Cr.P.C.

7. Being aggrieved by the said conviction

judgment, the accused approached the District and

Sessions Court, Mysuru in Crl.A.No.96/2014.

8. The first appellate Court secured the presence

of the parties as well as the records and after hearing the

arguments and re-appreciation of the entire material,

confirmed the order passed by the learned Magistrate. It

is that judgment which is subject matter of this revision

petition.

9. Learned counsel for the revision petitioner Sri

Chandrashekara K.A., vehemently contended that both

Courts have not taken into consideration the relevant

aspects of the matter and erred in convicting the accused.

He also contend that even if the conviction order is to be

maintained, sentence as passed by the learned Magistrate

confirmed by the first appellate Court is excessive having

regard to the nature of the offence. Hence prayed for

allowing the revision petition.

10. Per contra, Sri N.V.Nagesh, learned counsel

appearing for Sri P.M.Siddamallappa, learned counsel for

the respondent/complainant vehemently contended that

the accused has taken inconsistent stand throughout the

trial and there is no proper rebuttal evidence placed by the

accused and therefore the order of conviction passed by

the learned Magistrate and confirmed by the first appellate

Court requires no interference. Insofar as the sentence is

concerned, learned counsel for the complainant/

respondent contended that the cheque is of the year 2011

and the accused was successful in dragging the matter till

2014 and therefore the learned Magistrate used his

discretion while imposing fine of Rs.98,000/- for the

offence under Section 138 of the Act and also ordered six

months simple imprisonment which is perfectly justified in

the facts and circumstances of the case on hand and thus

prayed for dismissal of the revision petition.

11. In view of the rival contentions of the parties,

the following points that would arise for consideration are:

(i) Whether the finding recorded by the learned Magistrate that the revision petitioner/accused has committed an offence under Section 138 of N.I.Act, is erroneous and thus calls for interference?

(ii) Whether the sentence passed by the learned Magistrate for the offence punishable under Section 138 of N.I.Act is excessive?

12. The answer to the above points is as under:

Point No.1 : In the Negative

Point No.2 : Partly in affirmative for the following:

REASONS

13. POINT NO.1:- In the case on hand,

issuance of the cheque and the signature found on it and

borrowing of loan i.e., by the accused/revision petitioner

stand proved in the absence of the effective cross

examination of complainant by accused. The accused went

on changing his version during the trial and took

inconsistent stand as he was unable to establish that there

was no transaction as is alleged by the complainant which

has been rightly appreciated by the learned Magistrate in

the trial Court and reached a conclusion that accused has

committed an offence punishable under Section 138 of

N.I.Act.

14. Learned Judge in the first appellate Court also

held in detail about the material aspects involved and

rightly upheld the judgment of the trial Court in so far as

the conviction of the accused for the offence under Section

138 of N.I.Act.

15. Therefore from the above discussion this Court

is the considered opinion that there is no merit in the

contention urged on behalf of the revision petitioner that

the accused has not committed an offence punishable

under Section 138 of the N.I.Act. Accordingly point No.1 is

answered.

16. POINT NO.2:- Learned Magistrate in the

impugned judgment, has dealt the question of awarding a

sum of Rs.95,000/- as compensation payable to the

complainant and Rs.3,000/- as fine amount to the State

for the offence under Section 138 of N.I.Act. In para 20 of

the judgment, the reason assigned by the learned

Magistrate in ordering a sum of Rs.98,000/- as

compensation and fine amount is that the inconvenience

and hardship caused by the accused by dragging the

matter from 2011 to 2014.

17. It is unfortunate that first appellate Court did

not assign any reasons whatsoever for upholding the

sentence.

18. No doubt Section 138 of N.I.Act contemplates

awarding double the cheque amount as fine amount in a

given case. However the said power is discretionary in

nature and while ordering for proper fine amount or

ordering imprisonment, it is the bounden duty of the

learned Magistrate to assign proper reasons for awarding

appropriate sentence. The records made available before

this Court do not reflect on this aspect of the matter nor

there is nothing available in the impugned judgment to

show that in fact the learned Magistrate who has heard the

accused regarding sentence and his contentions having

been taken on record dealt with by a reasoned order.

19. Learned first appellate Court was duty bound

to consider the sentence aspect and did not bestow these

contentions as to why the sentence as is passed by the

learned Magistrate should to be accepted. It is pertinent

to note that in para 20 of the judgment, learned Judge in

the first appellate Court has only referred that the learned

Magistrate has rightly sentenced the accused without

assigning any reason whatsoever to uphold the sentence

portion. Under these circumstances there is sufficient

force in the arguments advanced on behalf of the learned

counsel for the revision petitioner that both the Courts

have not taken into account the right of the accused in

getting an order of appropriate sentence in a given case.

20. Learned counsel appearing for the complainant

Sri N.V.Nagesh for Sri P.M.Siddamallappa is also unable to

convince this Court as to how the sentence passed by the

learned Magistrate and confirmed by the first appellate

Court is appropriate sentence in the facts and

circumstances of the case.

21. Accordingly, in the considered opinion of the

Court having regard to the nature of the offence and the

materials available on record, the sentence of simple

imprisonment for six months as ordered by the learned

Magistrate and confirmed by the first appellate Court as

well as the fine amount needs interference.

22. Having regard to attendant circumstances and

the contentions taken by the parties to the lis this Court is

of the considered opinion that for the offence under

Section 138 of N.I.Act, if accused ordered to pay fine of

Rs.88,000/- would meet the ends of justice. The accused

has made some deposits before the trial Court during

pendency of the appeal as well as this revision petition.

Balance amount if ordered to be paid within a period of

two months would meet the ends of justice. If the

accused/revision petitioner fails to make payment of the

amount as aforesaid, the order of the learned Magistrate

stands restored. With the above observations, point No.2

is answered and following order is passed:-

ORDER Revision Petition is allowed in part.

While maintaining the conviction of the revision petitioner/accused for the offence under Section 138 of N.I.Act, the revision petitioner/accused is directed to pay fine of Rs.88,000/- out of which a sum of Rs.85,000/- is payable to the complainant / respondent as compensation and remaining sum of Rs.3,000/- is payable to the State as fine.

The revision petitioner/accused is directed to make the balance payment within two months from today failing which the order of the learned Magistrate stands restored.

No order as to costs.

Sd/-

JUDGE

KMV