Mr. Santhosh Nayak vs Mr. Naveen Devadiga
2021 Latest Caselaw 665 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 12TH DAY OF JANUARY, 2021

                          BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

  CRIMINAL REVISION PETITION No.261 OF 2015

BETWEEN :
Mr. Santhosh Nayak
S/o Mrs. Sunanda Nayak
Aged about 41 years,
'Bailoor Cafe', Bailoor-574102
Karkala Taluk, Udupi District
                                                ...Petitioner
(By Sri K.Shashikanth Prasad, Advocate)

AND :
Mr. Naveen Devadiga
S/o Mr. Gopal Devadiga
Aged about 44 years
Naer Shabari Ashrama
Tellar Road, Karkala Kasba Taluk
Karkala-574104, Udupi District
                                               ...Respondent
(By Sri Ramesh Chandra, Advocate)

       This Criminal Revision Petition is filed under Section
397 and 401 of Cr.P.C., praying to set aside the judgment
dated 20.02.2015 passed by the Principal Sessions Judge,
Udupi District in Crl.A.No.70/2013 and the judgment dated
25.05.2013 passed by the Prl. Civil Judge and JMFC,
Karkala in C.C.No.603/2009 convicted the revision
petitioner for the offence punishable under Sections 138 of
N.I.Act and to Acquit the petitioner.
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      This Criminal Revision Petition coming on for Final
Hearing, this day, the Court made the following:

                        ORDER

Heard both sides. Perused the records.

2. This revision petition is filed challenging the

order passed by the learned Prl. Civil Judge and JMFC,

Karkala in C.C.No.603/2009 dated 25.05.2013 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.1,00,000/- as compensation to the

complainant/respondent and Rs.10,000/- towards fine to

the State and also to undergo simple imprisonment for a

period of one year and default sentence of three months

simple imprisonment, which was confirmed in

Crl.A.No.70/2013 on the file of the Prl. District and

Sessions Judge, Udupi vide judgment dated 20.02.2015.

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 the N.I.Act contending

that the revision petitioner/accused has borrowed a sum of

Rs.1,00,000/- from the complainant on 12.04.2009

promising to repay the same within one month from the

date of borrowing and despite repeated demands, he failed

to repay the same; ultimately issued a cheque on

20.05.2009 bearing No.886363 in favour of the

complainant drawn on South Canara District Central Co-

operative Bank, Bailoor Branch. Said cheque on

presentation came to be dishonored with an endorsement

'insufficient funds' on 10.06.2009 and thereafter a

statutory notice was issued to the accused on 20.06.2009

calling upon the accused to pay the cheque amount within

a period of 15 days; despite service of notice, accused

neither complied the callings of the notice nor replied the

same. Therefore, the complainant constrained to file a

complaint against the accused; whereby the accused has

committed an offence punishable under Section 138 of

N.I.Act.

4. On registration of the case, learned Magistrate

took cognizance of the offence and secured the presence of

the accused and recorded the plea of the accused. The

accused pleaded not guilty and as such the trial was held.

5. In order to prove the complaint averments, the

complainant got examined himself as PW1 and 6

documents were exhibited and marked as Exs.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. On cumulative consideration of the oral and

documentary evidence on record, learned Magistrate

convicted the accused for the offence under Section 138 of

N.I.Act and passed the sentence as referred to supra.

7. Being aggrieved by the said conviction

judgment, the accused approached the District and

Sessions Court, Udupi in Crl.A.No.70/2013.

8. Learned Prl. District and Sessions Judge,

Udupi, the first appellate Court, secured the records and

after hearing the arguments in detail and re-appreciation

of the entire material, concurred with the judgment passed

by the learned Magistrate and dismissed the appeal of the

accused. It is those judgments which are the subject

matter of this revision petition.

9. Learned counsel for the revision petitioner /

accused Sri K.Shashikanth Prasad, vehemently contended

that both the Courts have grossly erred in convicting the

accused for the offence punishable under Section 138 of

N.I.Act. He further contended that both the Courts have

not properly appreciated the materials available on record

and accepted the evidence placed by the complainant

blindly and did not appreciate the documentary evidence in

a proper perspective and thus erred in law and convicted

the accused which is totally ignored by the first appellate

Court. He also contended that the accused never borrowed

any loan from the complainant and therefore the question

of repayment does not arise at all and Courts below have

wrongly appreciated the evidence on record in this regard

and thus misdirected the things in convicting the accused

and sought for allowing the revision petition.

10. Per contra, Sri Ramesh Chandra, learned

counsel for the complainant/respondent supported the

impugned judgment and also pointed out that on

20.03.2012 a joint memo came to be filed before the

learned Magistrate whereby the parties have agreed to

settle the dispute amicably and the complainant had

agreed to receive a sum of Rs.65,000/- as full and final

settlement towards the cheque amount. He further

contended that despite granting several opportunities the

accused did not comply with the terms of the joint memo

thereby learned Magistrate constrained to proceed with the

case in accordance with law and rightly convicted the

accused and the same was rightly confirmed by the first

appellate Court and thus sought for dismissal of the

petition.

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

the following points that would arise for consideration are:

(i) Whether the revision petitioner makes out any error apparent on the record so as to interfere with the findings of the leaned Magistrate in C.C.No.603/2009, which has been confirmed by the first appellate Court in Crl.A.No.70/2013?

(ii) Whether the sentence passed by the learned Magistrate and confirmed by the first appellate Court 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, learned

Magistrate has taken into consideration that the cheque

came to be issued by the accused. It is pertinent to note

that the cross examination of PW1 would indicate that the

cheque was given to one Mr. Mohan and it was misused by

the complainant. But such a contention was not proved by

adducing cogent evidence on record. It is also pertinent to

note that there is no reply to statutory notice issued to the

complainant nor said Mohan is examined as witness on

behalf of the accused. Thus learned Magistrate on

cumulative consideration of the entire material came to the

conclusion that the accused has committed the offence

under Section 138 of N.I.Act.

14. Learned Magistrate ordered simple

imprisonment of one year for the offence under Section

138 of N.I.Act and also ordered a fine of Rs.1,10,000/- out

of which Rs.10,000/- to be paid to the State as fine and

remaining Rs.1,00,000/- shall be paid to the complainant

as compensation.

15. Being aggrieved by the same, the accused

preferred an appeal before the Sessions Court. Learned

Prl. District and Sessions Judge, Udupi on cumulative

consideration of entire material on record and after re-

appreciating the evidence on record concluded that the

findings recorded by the learned Magistrate in holding that

the accused has committed an offence under Section 138

of the Act is based on sound reasons and thus dismissed

the appeal and did not interfere with the sentence passed

by the learned Magistrate.

16. Before this Court, learned counsel for the

respondent Sri Ramesh Chandra pointed out that the

conduct of the accused must be taken note of while

accepting the arguments canvassed on behalf of the

revision petitioner. In that regard he pointed out that a

joint memo came to be filed before the learned Magistrate.

If at all it is the case of the accused that the cheque that

has been given to Mr. Mohan has been misused by the

complainant, there is no occasion for the accused to enter

into a joint memo and file the same before the learned

Magistrate. The fact remains that, even the joint memo

was not acted upon the accused. In view of the foregoing

discussions this Court does not find any infirmity in the

finding recorded by the learned Magistrate and upheld by

the first Appellate Court. Accordingly point No.1 is

answered.

17. POINT NO.2:- Having held that the accused

committed an offence under Section 138 of N.I.Act, the

argument put-forth on behalf of the revision petitioner that

sentence is excessive needs re-consideration before this

Court. No doubt statute accords power to the learned

Magistrate to award double the cheque amount as fine and

also imprisonment which may extend to two years for the

offence under Section 138 of N.I.Act. In the case on hand

there is no proper and sound reasons assigned by the

learned Magistrate for awarding imprisonment for the

offence under Section 138 of N.I.Act along with fine of

Rs.1,10,000.00. Perhaps the joint memo which was filed

by the accused being not acted upon, must have

persuaded the learned Magistrate to award sentence of

imprisonment. In the considered opinion of this Court

awarding of simple imprisonment for one year for the

offence under Section 138 of N.I.Act with fine of

Rs.1,10,000/- and default sentence of 3 months

imprisonment is excessive and therefore, the same needs

to be modified.

18. Suffice to say that if the accused is directed to

pay fine of Rs.1,10,000/- out of which Rs.10,000/- is

ordered as fine to the State and Rs.1,00,000/- as

compensation to the complainant and the sentence of

imprisonment imposed on the accused needs to be set-

aside. However, if the accused fails to make payment of

fine amount and thereby the complainant is not able to

recover the compensation amount as ordered by the

learned Magistrate, the simple imprisonment as well as the

default sentence which is ordered by the learned

Magistrate shall stand restored. With the above

observations point No.2 is answered accordingly 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 sentence as ordered by the learned Magistrate is modified as under:

i) The revision petitioner/accused is directed to pay fine of Rs.1,10,000/- out of which a sum of Rs.1,00,000/- is payable to the complainant / respondent as compensation and remaining sum of Rs.10,000/- is payable to the State as fine.

ii) The revision petitioner/accused is directed to make payment of the said fine amount after deducting the amount, if any, already paid, on or before 30.06.2021 failing which the order of sentence passed by the learned Magistrate stands restored.

No order as to costs.

SD/-

JUDGE

KMV