S.B. Lakshmikantha vs Zaffer Ahmed
2021 Latest Caselaw 784 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF JANUARY, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

   CRIMINAL REVISION PETITION NO.123/2015

BETWEEN:

S. B. LAKSHMIKANTHA
AGED ABOUT 53 YEARS
S/O BYRAPPA, RETIRED STORE KEEPER
P.W.D DEPARTMENT
RESIDENT OF 'ASHA NILAYA'
3RD CROSS, 1ST MAIN, 3-A
HANUMANTHAPURA
TUMKUR - 572 102.
                                       ... PETITIONER
(BY SRI. AHAMED S. N., ADV.)

AND:

ZAFFER AHMED
AGED ABOUT 51 YEARS
SHAIK AHAMED HUSSAIN
HOLAVANAHALLY VILLAGE
KORATAGERE TALUK
TUMKUR DISTRICT - 572 12             ... RESPONDENT

(BY  SRI.  K.  NAGABHUSHAN       REDDY,   ADV.    NO
REPRESENTATION)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CRP.C PRAYING
TO SET ASIDE THE ORDER DTD.15.04.2014 PASSED IN
C.C.NO. 35/2010 ON THE FILE OF THE CIVIL JUDGE AND
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JMFC COURT AT KORTAGERE AND ALSO SET ASIDE THE
ORDER OF CONFIRMATION DTD. 07.01.2015 PASSED IN
CRL. A. NO. 5008/14 ON THE FILE OF THE IV-ADDL. DIST.
AND SESSIONS JUDGE AT MADHUGIRI AND ORDER OF
ACQUITTAL OF THE PETITIONER.

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

                           ORDER

The accused is in Revision challenging the order

dated 7th January, 2015 passed by the learned IV Addl.

District and Sessions Judge, Madhugiri in Criminal Appeal

No.5008/2014; whereby the learned District and Sessions

Judge confirmed the order of conviction dated 15th April,

2014 passed by the learned Civil Judge and JMFC,

Koratagere in CC No.35/2010 and convicted the accused

for the offence punishable under Section 138 of the

Negotiable Instruments Act and ordered simple

imprisonment for a period of one year and directed the

accused to pay a sum of Rs.2,00,000/- as compensation to

the complainant under Section 357(3) of Cr.PC.,

2. The brief facts which are necessary for the

disposal of the Revision Petition are as under:

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

with Section 138 of the Negotiable Instruments Act

contending that during the month of April, 2009, for the

family necessities, accused approached the complainant for

a financial assistance of Rs.1,15,000/-. Complainant

advanced the same to the accused and on the same day,

the accused had issued post dated cheque for a sum of

Rs.1,15,000/- towards the repayment of the hand loan,

based on a post dated cheque bearing No.836867 dated

29.05.2009 drawn on Indian Overseas Bank, B.H. Road,

Tumkur Branch. The complainant presented the said

cheque on 30th May, 2009 through his Bank namely State

Bank of India, Holavana Halli Branch, wherein the cheque

got dis-honoured with an endorsement "Funds insufficient"

on 5.6.2009 and thereafter, a statutory legal notice was

issued to accused calling upon him to comply with the

notice. The legal notice came to be returned with an

endorsement 'not claimed' on 22.06.2009 which

necessitated the complainant to file a complaint to take

action against the accused.

3. The learned Magistrate took cognizance recorded

the sworn statement and issued summons. The accused

entered appearance and plea was recorded. The accused

pleaded not guilty. Therefore, the trial was held. In order

to prove the complaint averments, the complainant got

himself examined as PW-1 and relied on six documentary

evidence which were exhibited and marked as Exhibits P-1

to P-6 comprising of dishonoured cheque, Bank challan,

Endorsement for dishonour, copy of the legal notice issued

to the accused, returned RPAD cover and the

acknowledgement. On behalf of the complainant, the

Manager of the Indian Overseas Bank was examined as

PW-2.

4. The accused as contemplated u/s.313 Cr.PC.,

statement was recorded, wherein the accused has denied

all the incriminating materials put to him. For question

No.8, which is pertaining to examination of witnesses on

behalf of the accused, he has answered that 'he would

examine a witness'. The accused also got himself

examined as DW-1 and produced the statement of

accounts which were exhibited and marked as Ex.D1.

5. Learned Magistrate on cumulative consideration

of the oral and documentary evidence on record, came to

the conclusion that the accused has committed an offence

u/s.138 of the Negotiable Instruments Act and connected

him for the said offence and awarded the sentence as

referred to supra.

6. Being aggrieved by the judgment of the learned

Magistrate, the accused preferred an appeal on the file of

the IV Additional District and Sessions Judge, Madhugiri in

Criminal Appeal No.5008/2014. The learned Judge in the

first Appellate Court secured the presence of the parties as

well as the records, heard the parties in detail and

dismissed the appeal whereby confirmed the judgment of

the Trial Court. It is this which is the subject matter of

this Revision Petition.

7. Learned counsel for the Revision Petitioner Sri.

Ahamed, vehemently contended that both the courts have

failed to note that there was a material alteration in the

cheque whereby the cheque itself rendered invalid and

thus the conviction is improper. It is the specific

contention of the learned counsel for the petitioner that

the date which was written on the cheque as 29.05.2008

has been altered as 29.05.2009 and therefore, the

conviction order passed by the Trial Court and confirmed in

the first Appellate Court is incorrect, illegal and thus

sought for allowing the Revision Petition.

8. The learned counsel for the Revision Petitioner

further contended that initial burden has not been

discharged by the complainant and his lending capacity

has also not been pleaded and proved and this fact has

totally been ignored by both the courts and sought for

allowing the appeal. It is also contended that on the date

of lending loan itself, the cheque was issued according to

the complainant but the date as is found in the cheque is

as 29.05.2009 and thus, there is a serious discrepancy as

to the case of the complainant which has been ignored by

both the courts and thus sought for allowing the appeal.

9. In support of the contention, the learned counsel

for the Revision Petitioner has relied on the judgment of

this court in the case of B Krishna Reddy Vs. B.K.

Somashekara Reddy reported in 2007 (2) DCR 391

which has been held as under:

           "Held:    Negotiable          Instruments     Act
     declares that       "any material alteration of

negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties". If the endorsee were to make an alteration, the liability of the endorser is discharged. It is mandatory that in order to attract prosecution under Section 138 of the Negotiable Instruments Act there should be any debt or legal liability. In view of admitted material placed on the part of PW-1,

instrument has become void in law. Therefore, no action in law under Section 138 of the Negotiable Instruments Act could lie. ....."

10. In this Revision Petition, though the Revision

Petitioner is represented by an advocate, the Advocate is

not present before the Court and there was no

representation on behalf of the respondent/complainant

when the matter was heard.

11. In the light of the arguments advanced on

behalf of the Revision Petitioner and after perusal of the

records of both the courts, the following points that would

arise for consideration:

(i) Whether the finding recorded by the

learned Magistrate that accused has

committed an offence under Section 138 of

the Negotiable Instruments Act confirmed

by the first Appellate Court is erroneous?

(ii) Whether the sentence passed by the

learned Magistrate in CC No.35/2010 and

confirmed in Criminal Appeal is erroneous?

12. My answer to the above point No.(i) is in the

'Negative' and point No.(ii) is 'Partly in the

Affirmative'.

13. The Trial Court as well as the first Appellate

Court while holding that the accused has committed an

offence under Section 138 of the Negotiable Instruments

Act, have taken into consideration the material evidence

on record. No doubt there is an alteration in the cheque

which is marked as Ex.P1 as to the date 28.05.2008 has

been altered as 28.05.2009 which is visible to the naked

eye. However, there is a signature underneath the said

correction. In this regard, PW-1 was cross examined

extensively. The defence taken by the accused is that

while he was proceeding in a Car, he met with an accident,

wherein he lost the cheques and one of those cheques

have been mis-used by the complainant. In the cross

examination of PW-1, he has answered that accused has

obtained the loan in the month of April, 2009. In the

complaint averments also, it has been clearly mentioned

that accused borrowed money in the month of April, 2009.

When such is the factual aspects, the alteration as to the

date which has been found on Ex.P1 from 29.05.2008 to

29.05.2009, in the considered opinion of this court is

properly explained by the complainant.

14. It is the accused who has taken the contention

that there is a material alteration in Ex.P-1. It was

required for the accused to make an application seeking

necessary orders to refer the Ex.P-1 for hand-writing

expert. No such application is filed by the accused before

the learned Magistrate or atleast before the first Appellate

Court. All along, the accused tried to impress upon the

Court that a cheque has been mis-used by the

complainant. But, no complaint is filed by the accused as

against the complainant even after he came to know about

the filing of the criminal complaint against him in CC

No.35/2010. Why accused did not take any action against

the complainant about the mis-use of Ex.P1 is not

explained by the accused. PW-2 who is the Manager of the

Indian Overseas Bank, Tumkur has specifically deposed

before the Court that the signatures found in Ex.P1 tallies

with the specimen signatures maintained by the Bank.

15. These aspects of the matter has been properly

appreciated by the learned Magistrate as well as the first

Appellate Court in the impugned judgment.

16. This court in the revisional jurisdiction with the

limited scope of revision, cannot re-visit to the minute

details in the case especially when there is a concurrent

finding of facts of both the courts. Suffice to say when the

materials available on record and the reasonings recorded

by both the courts in the impugned judgments, do not

suffer from legal infirmity so as to interfere with the same

in this Revision Petition there cannot be any dispute as to

the principles of law enunciated in the judgments cited by

the learned counsel for the Revision Petitioner. But the

facts in the said case and the facts of the case on hand are

altogether different and in the absence of any positive

evidence placed by the accused, the finding recorded and

the alteration found in Ex.P1 signed by accused is not a

material alteration and therefore, the said decision,

principles cited in the said case is not of much avail to the

revision to seek an order of interference by this court.

REGARDING POINT NO.2:

17. The Trial Court while passing the impugned

judgment has passed conviction order sentencing the

accused to undergo simple imprisonment for a period of

one year for the offence punishable under Section 138 of

the Negotiable Instruments Act. For ready reference, the

same is culled out hereunder:

"Acting under section 225 (2) of the

Cr.P.C., the accused is here by convicted for the

offence punishable under section.138 of N.I. Act.

Further, accused is sentenced to undergo

simple imprisonment for a period of one year for

the offence punishable under section 138 of N.I.

    Act


           Acting under section 357 (3) of Cr.P.C

    accused      is   directed    and    liable   to   pay

    compensation       in   a    sum    of   Rs.2,00,000/-

(Rupees two lakhs only) to the complainant.

The bail bands of the accused shall stand

cancelled.

Office is here by directed to supply free

copy of the judgment to the accused forth with."

18. It is pertinent to note that the operative portion

of the order do not contain a sentence of fine ordered as

against the accused but only compensation of Rs.2 lakhs is

ordered. In paragraph 28 of the judgment, there is a

discussion as to why the learned Magistrate is imposing

fine of Rs.2,00,000/-. The learned Magistrate has rightly

observed that accused has set up all possible evidence that

are available to the accused to failed to substantiate the

said defence and therefore, he has caused mandatory loss

to the complainant and hence ordered for compensation of

a sum of Rs.2,00,000/-.

19. Whenever a compensation is awarded in a

matter of this nature, it is needless to emphasize that the

accused must be sentenced to pay a fine of Rs.5,000/- and

out of the fine amount, but the Trial Court has not fined

the accused and passed an order of imprisonment for one

year. Though there is a serious legal flaw in such an

evidence, the first Appellate Court unfortunately did not

bestow its attention to correct the same. The Trial Court

did not assign any reasons for ordering the imprisonment

of one year while dealing with Point No.2.

20. It is well settled principle of law and requires no

emphasis that assigning the reasons to reach a conclusion

is a cine qua non. In fact, the reasons are heart beat of

any judgment. This aspect of the matter is ignored by the

first Appellate Court while confirming the order passed by

the learned Magistrate.

21. Thus, in the considered opinion of this court

both the courts have himself directed themselves in

passing the appropriate the sentence in the case on hand.

22. Having regard to the fact that the accused failed

to prove his defence that he lost the cheques and the

same has been mis-used by the complainant, awarding a

sum of Rs.2,00,000/- as the compensation payable to the

complainant as against the cheque amount of

Rs.1,25,000/- is reasonable. However, since the accused

has not lodged any complaint or stated the same before

the learned Magistrate, it is necessary for this court to

pass an appropriate sentence. This Court to interfere with

such findings passed an appropriate sentence.

Accordingly, I pas the following:

ORDER

(i) The Revision Petition is allowed in part while

maintaining the conviction for the offence punishable

under Section 138 of the Negotiable Instruments Act, the

accused is sentenced only to pay a sum of Rs.2,05,000/-.

Out of which, a sum of Rs.5,000/- shall be payable to the

State as fine and a sum of Rs.2,00,000/- shall be payable

to the complainant as compensation on or before 31st of

May, 2021. In default of payment of fine amount, the

accused is ordered to undergo simple imprisonment for

one month.

Sd/-

JUDGE

PL*