Sri Jagadeesh vs Sri Gopalakrishna Beede
2021 Latest Caselaw 785 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.241 OF 2015

BETWEEN:

       SRI JAGADEESH
       S/O. KITTU POOJARI,
       AGED ABOUT 47 YEARS,
       AUTO DRIVER,
       C/O. MOHAMMED SHARIFF,
       RESIDING AT JAT PATT NAGAR,
       OLD BALAGADI ROAD,
       KOPPA POST, KOPPA TALUK,
       CHIKMAGALUR DISTRICT - 562 101.
                                             ... PETITIONER

   (BY SRI A.P. PRABHATH, ADV., FOR SRI K. PRASANNA SHETTY)

AND:

       SRI GOPALAKRISHNA BEEDE
       S/O. LATE LAXMINARAYANA BEEDE,
       AGED ABOUT 56 YEARS,
       AGRICULTURIST,
       RESIDING AT KANUPU POST,
       N.R. PURA TALUK,
       CHIKMAGALUR DISTRICT - 562 101.
                                          ... RESPONDENT

       (RESPONDENT IS SERVED AND UNREPRESENTED)


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      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING
TO SET ASIDE THE ORDER DATED 17-12-2014 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKMAGALUR, IN
CRIMINAL APPEAL NO.397 OF 2013 AND ALSO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 30-10-2013 PASSED BY THE
CIVIL JUDGE AND J.M.F.C., KOPPA, IN CRIMINAL CASE NO.194 OF
2009.

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

                        ORDER

This revision petition is filed by the accused in

Criminal Case No.194 of 2009 on the file of the Civil Judge

and J.M.F.C., Koppa, challenging the validity of the

judgment dated 30-10-2013, whereby the accused was

convicted for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881 (for short, 'the N.I.

Act') and sentenced to undergo simple imprisonment for a

period of six months and to pay a fine of Rs.2,000/- and

Rs.37,000/- as compensation to the complainant, which

was confirmed by the I Additional District and Sessions

Judge, Chikmagalur, in Criminal Appeal No.397 of 2013

by judgment dated 17-12-2014.

2. Brief facts which are necessary for disposal of

the revision petition are as under:

A complaint came to be filed under Section 200 of

the Code of Criminal Procedure, 1973, (for short, 'the

Cr.P.C.') read with Section 138 of the N.I. Act contending

that on 12-9-2007, the accused, by name, Jagadeesh

borrowed a sum of Rs.50,000/- from the complainant to

meet his urgent necessities. It is further contended that

in order to discharge his legal liability, the accused issued

Ex.P.1-Cheque dated 18-8-2008 drawn on Indian Bank,

Koppa, to the complainant. On presentation, the cheque

came to be dishonoured with an endorsement "in sufficient

funds". Thereafter, the complainant issued statutory

notice dated 12-11-2008 and despite the service of legal

notice, the accused failed to repay the cheque amount nor

replied, which necessitated the complainant to file a

complaint against the accused.

3. Learned Magistrate after taking cognizance of the

offence, secured the presence of the accused and plead

was recorded. The accused pleaded not guilty and hence,

the trial held. In order to prove the fact, the complainant

examined himself as P.W.1 and got marked six documents

as per Ex.P.1 to Ex.P.6. The statement of the accused as

contemplated under Section 313 of the Cr.P.C. was

recorded, wherein the accused denied all incriminating

circumstances put to him. The accused also examined

himself as D.W.1, but did not place any documentary

evidence. The learned Magistrate on cumulative

consideration of the oral and documentary evidence on

record passed the following order:

"The accused is found guilty.

Acting under section 255 (2) of Cr.P.C., the accused is convicted for an offence punishable under section 138 of N.I. Act.

The accused shall sentence to undergo Simple Imprisonment for a period of six months and pay a fine of Rs.2,000/- for an offence punishable under section 138 of N.I.

     Act.    In default of payment of fine, the
     accused     shall   further   undergo   Simple
     Imprisonment for a period 15 days.

Acting under section 357 of Cr.P.C., the accused shall pay a sum of Rs.37,000/- to the complainant as a compensation."

4. Being aggrieved by the same, the accused

preferred an appeal before the District and Sessions

Court, Chikmalagur, in Criminal Appeal No.397 of 2013.

The learned Judge of the First Appellate Court on securing

the records and hearing the parties, confirmed the

judgment passed by the Civil Judge by dismissing the

appeal, which are subject matter of the revision petition.

5. Heard Sri A.P. Prabhath, learned counsel for the

revision petitioner, who vehemently contended that both

the Courts erred in holding that the accused has

committed an offence punishable under Section 138 of the

N.I. Act. He further contended that the material placed

by the parties, especially oral testimony of the accused

has not been properly considered by the learned

Magistrate and the same has been blindly accepted by the

First Appellate Court and thus, sought for allowing the

revision petition.

6. In this revision petition, though the complainant

is served, he remains unrepresented. Thus, in the light of

the arguments advanced by the learned counsel for the

revision petitioner, the following points arise for my

consideration:

i. Whether the finding recorded by the learned Magistrate that the accused has committed an offence under Section 138 of the N.I. Act which was confirmed in Criminal Appeal No.397 of 2013 passed by the I Additional District and Sessions Judge is erroneous?

ii. Whether the sentence is excessive?

7. In the case on hand, Ex.P.1-cheque issued to the

complainant is signed by the accused. Admittedly, cheque

came to be dishonoured with an endorsement "insufficient

funds". Later, legal notice came to be issued by the

complainant. Though the notice is served upon the

accused, he did not repay the amount or reply to the

notice. The learned Magistrate after considering the oral

testimony of the complainant-P.W.1 and on the strength of

the document of Ex.P.1 came to the conclusion that

cheque has been issued for discharge of debt or legal

liability and the accused has failed to repay the same and

has made part payment of Rs.15,000/-. Hence, the

accused was convicted for the offence punishable under

Section 138 of the N.I. Act and sentenced to undergo

simple imprisonment for a period of six months with fine

of Rs.39,000/-. Out of which, Rs.2,000/- was ordered to

be paid to the State and balance of Rs.37,000/- to the

complainant as compensation.

8. Learned Judge of the First Appellate Court after

re-appreciation of the entire material on record confirmed

the judgment of the learned Magistrate.

9. On hearing of the arguments of the revision

petitioner and on perusal of the record, this Court did not

notice any error apparent on record with the well reasoned

orders of the learned Magistrate and the learned First

Appellate Court. Suffice to say that, though under

Section 138 of the N.I. Act, the Court is entitled to order

for double the cheque amount as fine and imprisonment

for two years, having regard to the facts and

circumstances of the case on hand, the learned Magistrate

awarded fine of Rs.39,000/-, out of which, Rs.37,000/-

was ordered to be paid as compensation to the

complainant along with imprisonment of six months.

10. In the considered opinion of the Court, awarding

simple imprisonment for a period of six months is not

supported by valid reasons. Therefore, to that extent,

this Court is of the opinion that the simple imprisonment

of six months is excessive and the same needs to be set

aside. However, having regard to the facts and

circumstances of the case, especially in the pandemic

COVID-19, granting three months with fine of Rs.39,000/-

less the amount deposited before the First Appellate Court

would meet the ends of justice. Accordingly, the points

raised in the present revision petition is answered in

negative and partly affirmative and following order is

passed:

i. The revision petition is allowed-in-part;

ii. While maintaining the conviction of the

accused for the offence punishable under

Section 138 of the N.I. Act, the order

passed by the learned Magistrate

sentencing the accused for simple

imprisonment for a period of six months is

hereby set-aside; and

iii. The accused is granted three months time

to pay the fine and compensation, less the

amount already deposited/paid, failing

which, the order of sentence passed by the

learned Magistrate is restored.

Sd/-

JUDGE

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