B C Neelakantappa vs H Nijalingappa
2021 Latest Caselaw 484 Kant

  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.48/2015

BETWEEN:

B. C. NEELAKANTAPPA
S/O. CHANNABASAPPA
AGED ABOUT 38 YEARS
CEMENT AND FERTILIZER MERCHNAT
R/O BEGUR VILLAGE
HOSADURGA TALUK
PIN CODE - 577 527                  ... PETITIONER

(BY SRI. SHARASS CHANDRA, ADV.,)

AND:

H. NIJALINGAPPA
S/O. HOLIYAPPA
AGED ABOUT 50 YEARS
DRIVER BY PROFESSION
ILAPURA VILLAGE, KASABA HOBLI
HOSADURGA TALUK
PIN CODE - 577 527                  ...RESPONDENT

(BY SRI. K. S. HARISH, ADV.,)

     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
25.11.2014 IN CRL.A.NO. 12/2014 PASSED BY THE ADDL,
DIST. AND SESSIONS JUDGE, CHITRADURGA, AND THE
                               2


JUDGMENT AND ORDER DATED 10.01.2014 PASSED BY
THE CIVIL JUDGE AND JMFC AT HOSADURGA IN C.C.NO.
117/2011    AND   CONSEQUENTLY    ACQUIT     THE
PETITIONER/ACCUSED.

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

                          ORDER

This Revision Petition is by the accused against the

conviction order dated 10.1.2014 passed in CC

No.117/2011 on the file of the Principal Civil Judge and

JMFC at Hosadurga whereby the accused has been

convicted for the offence punishable under Section 138 of

the Negotiable Instruments Act; which was confirmed in

Criminal Appeal No.12/2014 on the file of the Addl. District

and Sessions Judge, Chitradurga, by judgment dated

25.11.2014.

2. Brief facts which are necessary for disposal of the

Revision Petition are as under:

A complaint came to be filed u/s.200 Cr.PC., read

with Section 138 of the Negotiable Instruments Act

contending that there was a monetary transaction between

the complainant and the accused whereby the accused

borrowed a sum of Rs.3,00,000/- from the complainant as

a hand loan with an assurance to repay the same within

four months and thereafter, when the complainant

repeatedly demanded for repayment, ultimately, the

accused issued a cheque bearing No.629310 dated

21.2.2011 for a sum of Rs.2,00,000/- which on

presentation came to be dishonoured. It is further

contended that statutory notice was issued on 22.2.2011.

The same is served on the accused but accused did not

comply with the callings of notice nor replied the same

which necessitated the complainant to approach the court

seeking suitable action against the accused. On

presentation of the complaint after completing all the

formalities, the learned Magistrate took cognizance of the

accused and secured the presence of the accused and plea

was recorded. Accused pleaded not guilty. Therefore, trial

was held. In order to prove the case, the complainant got

examined himself as PW-1 and relied on six documentary

evidence which were exhibited and marked as Exhibits P1

to P6. On completion of the evidence on record, the

accused statement as contemplated u/s.313 Cr.PC., was

recorded wherein the accused pleaded all incriminating

circumstances which were put to him. However, the

accused did not plead any oral evidence nor pleaded any

documentary evidence on his behalf. Thereafter, the

learned Magistrate on cumulative consideration of the

materials on record, convicted the accused for the offence

punishable under Section 138 of the Negotiable

Instruments Act and sentenced him to undergo simple

imprisonment for one month and ordered Rs.3,05,000/- as

fine with a default sentence of six months simple

imprisonment and out of the fine amount, a sum of

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

the complainant as contemplated u/s.357 of Cr.PC., and a

sum of Rs.5,000/- is to the State as fine.

3. Being aggrieved by the said judgment, the

accused approached the first appellate court in Criminal

Appeal No.12/2014. The learned Judge in the first

appellate court on securing the records, and after hearing

the parties in detail, re-appreciated the entire materials on

record and allowed the appeal of the accused in part by

modifying the sentence to pay a sum of Rs.1,65,000/- as

fine amount with default sentence of six months and

ordered a sum of Rs.1,60,000/- as compensation to be

paid to the complainant and the balance Rs.5,000/- is to

be credited to the State. It is those judgments which are

under challenge in this Revision Petition.

4. Learned counsel for the Revision Petitioner Sri

Sharass Chandra vehemently contended that both the

courts have not appreciated the case on hand properly and

wrongly convicted the accused for the offence punishable

under Section 138 of the Negotiable Instruments Act and

prayed for allowing the Revision Petition.

5. It is pertinent to note that in the case on hand,

the complainant-PW1 has stated that he is working as a

lorry driver and also growing onion crop on lease basis and

therefore, he has sufficient means to lend money. It is

also contended that accused borrowed money in the first

week of October 2010 for his business necessities and for

repayment of the loan amount cheque Ex.P1 came to be

issued, which on presentation came to be dishonoured and

there is no compliance to the callings of statutory notice

nor the notice was replied by the accused. The material

available on record clearly indicate that the initial burden

cast on the complainant has been discharged by placing

necessary materials on record. Suggestion was made to

PW-1 that complainant work as a driver of the tractor

owned by the accused and in that regard he had taken the

Ex.P1 cheque and mis-using the said cheque he foisted a

false case against the accused. It is pertinent to note that

no reply was sent to the legal notice nor any positive steps

have been taken about the alleged mis-use of the cheque

by the complainant. No prudent person would keep quiet

when it has come to his knowledge that the cheque

belonged to him has been misused by somebody.

6. Further, there is no materials on record to rebut

the presumption available to the complainant as is

contemplated u/s.139 of the Negotiable Instruments Act.

Under such circumstances, the finding recorded by the

learned Magistrate which was confirmed by the first

appellate court that accused has committed the offence

punishable under Section 138 of the Negotiable

Instruments Act does not suffer from any patent error on

record or improper exercise of jurisdiction or suffering

from any legal infirmity.

7. However, the first appellate court, re-appreciated

the entire materials on record and also noticed that the

order sheet maintained in the Trial Court shows that

between the period from 17.4.2012 to 8.5.2013 accused

paid a sum of Rs.1,40,000/- to the complainant and

therefore, the first Appellate Court modified the sentence

passed by the Trial Court by levying fine of Rs.1,65,000/-

and set aside the sentence of imprisonment of one year

passed by the learned Magistrate for the offence

punishable under Section 138 of the Negotiable

Instruments Act.

8. No explanation of whatsoever is forthcoming from

the learned counsel for the Revision Petitioner as to why

the accused made those payments before the Trial Court

when the accused is not liable to pay the cheque amount

and the cheque issued by the accused has been misused

by the complainant.

9. In view of the above factual aspects, this court is

of the considered opinion that the impugned judgments do

not call for any interference at the hands of this court.

Accordingly, the point is answered and following order is

passed.

The Revision Petition is dismissed. However, having regard to the difficulties pleaded by the learned counsel for the Revision Petitioner, time is granted till 31st March, 2021 to the Revision Petitioner to pay the balance amount to be deposited before the Trial Court.

Sd/-

JUDGE PL*