Sri N M Raju vs Sri V Muniraju
2021 Latest Caselaw 793 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.18/2015

BETWEEN:

SRI. N. M. RAJU
SON OF MANJAPPA
AGED ABOUT 60 YEARS
R/A, NO.52, III FLOOR, 8TH 'A' CROSS
KUTTIAPPA GARDEN, EJIPURA VIVEKNAGAR POST
BANGALORE - 560047.
                                     ... PETITIONER
(BY SRI. SRINIVASAN.T, ADV.)

AND:

SRI. V. MUNIRAJU
SON OF UTTANALLAPPA
AGED ABOUT 58 YEARS
RESIDING AT NO.146, 4TH 'B' BLOCK
16TH 'B' MAIN ROAD
BEHIND CANARA ROAD
KORAMANAGALA
BANGALORE - 560 034.                 ...RESPONDENT

(BY SRI. M.S.HARINATH, ADV.)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION, 397 READ WITH 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT IN ATED 03.11.2014 IN
CRL.A.NO.608/2013 ON THE FILE OF THE PRESIDING
OFFICER,   FTC-V  COURT, BANGALORE   CITY   AND
                                    2


CONSEQUENTLY SET ASIDE THE JUDGMENT DTD.
09.10.2013 IN C.C. NO.3781/2011 RENDERED BY THE
COURT OF THE XIII-ACMM, BANGALORE AND ACQUIT THE
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE N.I.ACT.

     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 conviction order dated 9th October, 2013 passed in CC

No.3781/2011 by the file of the XIII Addl. Chief

Metropolitan Magistrate, Bengaluru, whereby the accused

came to be convicted for the offence punishable under

Section 138 of the Negotiable Instruments Act and the

accused was ordered to pay a fine of Rs.1,98,000/- with a

default sentence of simple imprisonment for six months

and out of the fine amount recovered, a sum of

Rs.1,93,000/- shall be paid to the complainant as

compensation as provided under Section 357 Cr.PC., and

a sum of Rs.5,000/- shall be remitted to the State as fine,

which judgment was confirmed by an order dated 3rd

November, 2014 in Criminal Appeal No.608/2013 by the

Fast Track (Sessions) Judge-V, 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 against the accused

u/s.200 Cr.PC., under Section 138 of the Negotiable

Instruments Act contending that the complainant and

accused are acquainted with each other for several years

and in the month of August 2010, the accused approached

the complainant for hand loan of Rupees Two lakhs for his

urgent legal and family necessities with an assurance to

repay the said loan in October, 2010. Believing the words

of accused, complainant advanced a sum of Rupees Two

lakhs as hand loan to the accused and the accused inturn

has passed on a post dated cheque bearing No.803944

dated 5.10.2010 in a sum of Rs.1,93,000/- drawn on State

Bank of Hyderabad, Airport Road Branch, Bengaluru. The

said cheque on presentation returned with an endorsement

"insufficient funds" on 11.10.2010. The complainant got

issued statutory legal notice to the accused on 25.10.2010.

Despite service of legal notice on the accused, the accused

neither replied nor paid the money which resulted in

lodging of a Criminal Case against the accused with a

prayer to take suitable action against the accused for the

offence punishable under Section 138 of the Negotiable

Instruments Act.

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 nine documentary

evidence which were exhibited and marked as Exhibits P-1

to P-9 comprising of cheque, Pass book, Bank

endorsement, copy of legal notice, RPAD Receipt, UCP

Receipt, Courier Receipt, Postal acknowledgement and

complaint. On closure of the evidence, the accused

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

wherein the accused has denied all the incriminating

materials put to him.

4. On behalf of the accused, the accused himself

was examined as DW1 and relied on seven documentary

evidence which were exhibited and marked as Exhibits D-1

to D-7 comprising of Passbook, Employee Service

Certificate, Notice of Payment of Gratuity, Details of Final

settlement, Letter to the Manager of Bank, Letter under

RTI to transfer and letter to Asst. Registrar of Co-op.

Societies.

5. Learned Magistrate on cumulative consideration

of both 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

sentenced him for the said offence as referred to supra.

6. Being aggrieved by the judgment of the learned

Magistrate, the accused preferred an appeal in Criminal

Appeal No.608/2013 on the file of the Fast Track

(Sessions) Judge-V, Bengaluru City. 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 by confirming the judgment of

the Trial Court. It is those judgments which is the subject

matter of this Revision Petition.

      7.       Learned      counsel      for      the     Revision

Petitioner/accused     Sri.T.       Srinivasan,         vehemently

contended that both the courts have erred          in law in not

properly appreciating the contentions of the parties.          He

has contended that the Trial Court has mis-read                the

evidence placed before it and especially, the evidence of

DW-1 and the documents which were exhibited and

marked as Exhibits D-1 to D-7. He has also contended

that the accused had retired from service and had received

service benefits and therefore, there was no necessity for

the accused to borrow any money from the complainant

which is totally ignored by the learned Magistrate as well

as the first Appellate Court. He has further contended that

there was a previous loan transaction between the

complainant and the accused, wherein the accused had

given cheques to the complainant and that cheque has

been mis-used by the complainant for the purpose of filing

a false case against the accused and the same is also

totally ignored by the learned Magistrate and the first

Appellate Court and thus sought for allowing the revision

petition.

8. The counsel Sri M.S. Harinath, who is on record

for respondent is absent.

9. 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 and confirmed by the first Appellate Court is excessive?

10. Answer to the above points are in the

'Negative' for the following:

REASONS:

11. In the case on hand, the cheque having been

issued by the accused to the complainant, signed by the

accused is not in dispute. The defence taken by the

accused is that the cheque was given in the year 2006

itself in respect of some other transaction, but it has been

retained by the complainant and later it was mis-used by

him. To probabalise the said defence, the accused got

himself examined as DW-1 and got marked 7 documents

which are exhibited and marked as Exs.D-1 to D-7.

12. It is pertinent to note that though accused has

taken a stand that cheque in question at Ex.P-1 was issued

in the year 2006, to establish the same, what prevented

the accused to summon the Cheque Issue Register from

the Bank. So also, nothing prevented the accused to show

that there was a previous transaction wherein he had

tendered the cheque to the complainant by producing the

counterfoil or the slips attached to the cheque book,

wherein necessary details are entered by the accused

during the usual course. When accused has taken the plea

that the cheque came to be issued in the year 2006, it is

for him to establish that cheque in fact was issued in the

year 2006 and he has honoured the cheque which is

preceding Ex.P-1 and which has been issued subsequent to

Ex.P-1. But, no such evidence is placed by the accused in

this regard. It is also pertinent to note that there was no

reply sent by the accused to the statutory notice. So also,

even after appearing before the learned Magistrate,

accused did not take any steps to lodge a complaint

against the complainant that he has mis-used the cheque

which was issued in the year 2006 nor atleast there was a

demand for return of the cheque. In the absence of such

evidence placed by the accused, this court is of the

considered opinion that the finding recorded by the learned

Magistrate which was upheld by the first Appellate Court

that the accused has failed to establish his defence and

failed to rebut the presumption available to the

complainant u/s.139 of the Negotiable Instruments Act, is

based on sound legal principles and does not suffer from

any legal infirmity whatsoever.

13. Thus, the finding recorded by the learned

Magistrate and the first Appellate Court that accused has

committed an offence punishable under Section 138 of the

Negotiable Instruments Act is not suffering from any

patent defect or error of jurisdiction nor suffering from

illegality. Accordingly, point No.1 is answered.

14. Admittedly, the Trial Court has taken into

consideration the cheque while sentencing the accused.

The learned Magistrate has convicted the accused for the

offence punishable under Section 138 of the Negotiable

Instruments Act and ordered to pay a fine of Rs.1,98,000/-

and out of that a sum of Rs.1,93,000/- is ordered to pay

as compensation which is the cheque amount and a sum of

Rs.5,000/- is ordered to pay as fine to the State with a

default sentence. In the considered opinion of this court,

when the accused has failed to establish his defence, the

sentence passed by the learned Magistrate and confirmed

by the first Appellate Court ordering only fine amount to

the extent of the cheque amount as compensation is

perfectly justified in the facts and circumstances of the

case. Accordingly, there is no need for interference of the

order of the learned Magistrate confirmed by the first

Appellate Court.

15. However, having regard to the fact that the

Nation is facing Pandemic COVID-19, reasonable time shall

be given to the accused to make payment. Accordingly,

this court exercising its inherent power is extending time

to pay the fine amount till 31st of May, 2021 to the

accused to make good the fine amount.

With this observation, the Revision Petition is

dismissed. Office to return the Trial court and the first

Appellate Court records.

Sd/-

JUDGE PL*