Mohammed Mustaq Ahmed vs K C Rudramurthy
2021 Latest Caselaw 792 Kant

  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.307/2015

BETWEEN:

MOHAMMED MUSTAQ AHMED
S/O. BHASHA SAHEB
AGED ABOUT 52 YEARS
TEACHER AT GOVERNMENT HIGHER
PRIMARY SCHOOL, CHIKKANAHALLY
VILLAGE, ANABE POST
DODDABALLAPURA TALUK
BANGALORE RURAL DISTRICT - 562113.
                                       ... PETITIONER

(BY SRI. SURESH. D. DESHPANDE, ADV.)

AND:

K.C. RUDRAMURTHY
S/O. CHANNAPPA
AGED ABOUT : 53 YEARS
NO.223, 4TH MAIN ROAD
7TH CROSS, APMC YARD
YESHWANTHAPURA
BANGALORE - 560 022.                   ...RESPONDENT

(BY SRI. N. SONNE GOWDA, ADV.)


    THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 (1) AND 401 (1) CR.P.C, PRAYING
                                2


TO SET ASIDE THE IMPUNGED ORDER OF CONVICTION
DATED 10.7.2013 PASSED BY THE XII A.C.M.M.,
BANGALORE IN C.C.NO.23304/2009 AND ALSO THE
JUDGMENT DATED 21.02.2015 PASSED BY THE LII ADDL.
CITY CIVIL AND S.J., BANGALORE CITY (CH-53) IN
CRL.A.NO.392/2013.

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

                           ORDER:

This Revision Petition is filed by the accused against

the order dated 10.07.2013 passed in CC No.23304/2009

by the XII Addl. CMM Court, Bengaluru City, wherein the

accused was convicted for the offence punishable under

Section 138 of the Negotiable Instruments Act and

sentenced him to pay fine of Rs.2,50,000/- with a default

sentence of six months and out of the fine amount, a sum

of Rs.2,25,000/- was ordered to be paid as compensation

to the complainant, which was confirmed by the order

dated 21.02.2015 in Criminal Appeal No.392/2013 passed

by the LII Addl. City Civil and Sessions Judge, Bengaluru

City.

2. The brief facts which are necessary for the

disposal of the Revision Petition are as under:

A complaint came to be filed under Section 200 of

Cr.PC., for the offence punishable under Section 138 of the

Negotiable Instruments Act contending that the

complainant had advanced a sum of Rs.1,50,000/- to the

accused as hand loan and towards repayment, a cheque

was issued by the accused which on presentation came to

be dishonoured with an endorsement 'insufficient funds'.

Statutory notice as contemplated under the Act was

issued, the same is served on the accused., but there is no

reply or compliance of calling of notice which resulted in

filing of the Criminal case against the accused seeking

action for the offence punishable under Section 138 of the

Negotiable Instruments Act.

3. The learned Magistrate took cognizance of the

offence and summoned the accused and plea was

recorded.

4. Accused pleaded not guilty and trial was held. In

order to prove the case, complainant got examined himself

as PW-1 and a witness by name Basavaraju as PW-2. On

behalf of the complainant five documents were exhibited

and marked as Exhibits P-1 to P-5. Accused statement as

contemplated u/s.313 Cr.PC., was also recorded and

thereafter, accused lead evidence on examining himself as

DW-1 and one Manjunath was examined as DW-2.

5. The learned Magistrate on cumulative

consideration of the oral and documentary evidence placed

on record and after hearing the parties convicted the

accused for the offence punishable under Section 138 of

the Negotiable Instruments Act and passed the sentence

referred to supra.

6. Being aggrieved by the same, the accused

preferred an appeal in Criminal Appeal No.392/2013 on the

file of the LII Addl. City Civil and Sessions Judge. The

learned Judge in the first Appellate Court after securing the

record and after hearing the parties in detail confirmed the

judgment passed by the learned Magistrate. Those orders

are the subject matter of this Revision Petition.

7. The learned counsel for the Revision Petitioner Sri

Suresh D.Deshpande, vehemently contended that both the

courts have not appreciated the materials on record in

proper perspective and passed an order of conviction

which is not sustainable in law and sought for allowing the

Revision Petition. He further contended that the cheque

was actually issued in favour of the co-brother of the

complainant who is examined as DW-2 in respect of a

monetary transaction between DW-2 and the accused and

in that connection a cheque was issued to DW-2 which has

been misused by the complainant and a false complaint

came to be alleged against the accused which has not

been properly appreciated by both the courts and thus

sought for allowing the Revision Petition. He also

contended that there was no lending capacity for the

complainant in as much as there was no materials placed

by the complainant to establish that he had possessed

Rs.1,50,000/- to lend the same as a hand loan to the

accused and in the absence of the same, the learned

Magistrate holding that the accused has committed an

offence u/s.138 of the Negotiable Instruments Act cannot

be sustained in the eye of law and which has been wrongly

confirmed by the first Appellate Court and thus sought for

allowing the Revision Petition.

8. Per contra, Sri Sonnegowda, learned counsel

appearing for the complainant supported the impugned

judgments and argued that even though the co-brother of

the complainant has been cited and examined as a

witness, his evidence did not improve the case of the

accused to any extent nor atleast establish the defence

theory to any extent much less acceptable one. Therefore,

the judgment of the learned Magistrate convicting the

accused and confirmed by the first Appellate Court is

based on the sound reasons and thus prayed for dismissal

of the Revision Petition.

9. In view of the rival contentions, the following

points that would arise for consideration:

(i) Whether the finding recorded by the learned Magistrate in convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and confirmed by the first Appellate Court in Criminal Appeal No.392/2013 is erroneous?

(ii) Whether the sentence is excessive?

My answer to the above points are in the Negative for the

following reasons:

10. In the case on hand, Ex.P-1 cheque and the

signature found therein is not in dispute. So also, the

dishonor of cheque and issuance of statutory legal notice is

also not in dispute. Perusal of cross examination of PWs.1

& 2 depicts that the accused has taken a defence that he

had a monetory transaction with DW-2 and in that regard

he had issued Ex.P-1 cheque to DW-2, who is none other

than the co-brother of the complainant and Ex.P1 has been

mis-used by the complainant to foist a false case against

the accused herein. To probabalise such a defence, the

accused did take the responsibility of not only examining

himself as DW-1 but also summoned Sri Manjunath; the

co-brother of the complainant who is examined as DW-2.

In his cross examination, it has been categorically elicited

that the cheque in question Ex.P1 was not collected by

Manjunath from accused and handed over to the

complainant for the purpose of presenting it and marking it

as cause of action for filing a complainant. In the teeth of

such evidence on record, the learned Magistrate with the

available materials on record came to the conclusion that

accused failed to rebut the presumption available under

the statute u/s.139 of the Negotiable Instruments Act and

convicted the accused for the offence punishable under

Section 138 of the Negotiable Instruments Act passed a

sentence of Rs.2,50,000/- as against the cheque amount

of Rs.1,50,000/- and awarded a sum of Rs.2,25,000/- as

compensation to the complainant and Rs.25,000/- as fine

to the State.

11. Sri Deshpande, learned counsel drew the

attention of this court that the evidence placed by the

complainant in the form of oral testimony of PWs.1 & 2 are

contradictory to each other. But they are minor

contradictions. Hence, this court cannot revisit into the

minor contradictions in detail and therefore, the said

arguments cannot be countenanced in law.

12. The first Appellate Court on re-appreciation of

the entire material available on record concurred with the

judgment passed by the learned Magistrate and did not

alter the sentence. Having regard to the circumstances

available in the case on hand and the defence having not

been probabalised, this court is of the considered opinion

that there is no error apparent on the finding recorded by

the learned Magistrate in holding that the accused has

committed an offence u/s.138 of the Negotiable

Instruments Act, which has been confirmed by the first

Appellate Court.

13. However, the learned Magistrate has sentenced

the accused by ordering fine of Rs.2,50,000/- and out of

which Rs.2,25,000/- is ordered to be paid as compensation

to the accused.

14. In the considered opinion of this court, ordering

Rs.25,000/- fine towards the State is excessive as no State

missionary is involved in the case on hand. Therefore, this

court is of the considered opinion that ordering a sum of

Rs.2,30,000/- as fine by reducing from Rs.2,50,000/- and

maintaining compensation of Rs.2,25,000/- and fine of

Rs.5,000/- payable to the State would meet the ends of

justice. Accordingly, Point Nos.1 & 2 are answered and

pass the following:

ORDER

The Revision Petition is allowed in part while

maintaining the sentence of conviction for the offence

punishable under Section 138 of the Negotiable

Instruments Act. Fine amount is reduced from

Rs.2,50,000/- to Rs.2,30,000/- . Out of which an amount

of Rs.2,25,000/- shall be payable to the complainant and

the balance amount of Rs.5,000/- is to the State.

Having regard to the prevailing pandemic COVID 19,

accused is granted time to pay the fine amount till 30th of

June, 2021.

Sd/-

JUDGE

PL*