Smt. Tharammadevi vs Smt. B N Jayalakshmi
2021 Latest Caselaw 3677 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 9TH DAY OF NOVEMBER, 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

   CRIMINAL REVISION PETITION NO.793/2012

BETWEEN

SMT. THARAMMADEVI
W/O M S RANGANATHAN
AGED ABOUT 45 YEARS
R/A SRI NILAYA
NO.29, 5TH CROSS
THAMBUCHETTY PALYA
BANGALORE-560 049
                                      ...PETITIONER

(SRI C.R.SANDESH FOR AMICUS CURIAE, ADVOCATES)

AND

SMT. B N JAYALAKSHMI
W/O M N JAYAKUMAR
AGED ABOUT 68 YEARS
RESIDING AT NO.484,
7TH CROSS, MAHALAKSHMI LAYOUT
BANGALORE-560086
                                      ...RESPONDENT
(BY SRI V MANJUNATH, ADVOCATE)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING   TO   SET-ASIDE    THE  JUDGMENT   AND
CONVICTION ORDER PASSED DATED 05.09.2011 PASSED
BY   THE   XIV   ADDL.   C.M.M.,  BANGALORE   IN
                                      2


C.C.NO.79898/2009 AND IN CRL. APPEAL NO.25186/2011
DATED 23.05.2012 PASSED BY THE ADDL. S.J., PO., FTC-
III, MAYO HALL, BANGALORE        RESPECTIVELY     BY
ACQUITTING THE PETITIONER AND BY DISMISSING THE
COMPLAINT.

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

                                 ORDER

Heard Sri C.R. Sandesh, learned Amicus curiae

appearing for the Revision Petitioner and Sri V. Manjunath,

learned counsel appearing for the respondent and perused

the records.

2. This Revision Petition is filed challenging the

order of conviction dated 5.9.2021 passed in CC

No.79898/2009 by the learned XIV Addl. Chief

Metropolitan Magistrate, Bengaluru, whereby, the accused

- Revision Petitioner was convicted for the offence

punishable under Section 138 of the Negotiable

Instruments Act and sentenced to pay fine of

Rs.5,50,000/- as compensation and out of which, a sum of

Rs.5,40,000/- was ordered to be paid as compensation and

the balance Rs.10,000/- is ordered to be defrayed to the

State, is confirmed by the first Appellate Court by

judgment dated 23.05.2012 in Criminal Appeal

No.25186/2011 by the Additional Sessions Judge and

Presiding Officer, FTC-III Mayo Hall Unit, Bengaluru.

3. The learned counsel for the Revision Petitioner

would contend that both the courts have wrongly

appreciated the material evidence on record and recorded

an order of conviction. He also contends that the defence

taken by the accused has not been properly appreciated by

the learned Magistrate and ignored by the first Appellate

Court. He further contends that the cheque in question

was stolen by the complainant and there was no capacity

for the complainant to lend a sum of Rs.5,00,000/- as

hand loan and therefore, there is no discharge of the initial

burden caused on the complainant and therefore, the

accused need not rebut the presumption available to the

complainant under Sections 118 and 139 of the

Negotiable Instruments Act. He also contends that soon

after the accused lost the cheque, the complaint came to

be filed before the jurisdictional police as well as stop

payment was given to the bank and therefore, as a

prudent person, the accused has discharged his burden to

show that the cheque in question was issued based on the

legally recoverable debt and both the courts have ignored

to consider the same and thus prayed for allowing the

Revision Petition.

4. Per contra, Sri V.Manjunath, learned counsel for

the complainant supported the impugned judgment and

contends that the presumption available to the

complainant is not rebutted by placing cogent evidence on

record by the accused and therefore, the same has been

rightly appreciated by both the courts in recording an

order of conviction.

5. In view of the rival contentions and having regard

to the scope of the revisional jurisdiction, the following

points would arise for consideration:

(i) Whether the finding recorded by the learned Magistrate convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and confirmed by the first Appellate Court is suffering from legal infirmity and perversity and thus calls for interference?

(ii) Whether the sentence is excessive?

6. In the case on hand, issuance of the cheque and

the dishonour of the same and issuance of statutory notice

and reply are all established by placing necessary cogent

evidence on record. Admittedly, the defence taken by the

accused is that the cheque Ex.P-1 is stolen by the

complainant by taking advantage of the absence of the

accused in the house. The stop payment instructions

given by the accused marked at Ex.D-3 states that while

proceeding towards the work, the accused has lost the

cheque book as well as the pass book and Ex.P-1 is the

part of the cheque book and therefore, the bank was not

required to honour the cheque Ex.P-1.

7. As could be seen from Ex.D-3, copy of requisition

of stop payment came to be issued on 4.5.2009, whereas

the cheque came to be dishonoured on 6.4.2009.

8. The legal notice and the reply notice amply

establish the fact that issuance of cheque thereto and non

compliance thereof. Since the complainant enjoys the

presumption as is contemplated under Section 118 and

139 of the Negotiable Instruments Act that the cheque in

question was issued for a legally recoverable debt is not

rebutted by placing cogent and convincing evidence on

record. In the cross examination of DW-1, it is elicited

that the accused gave stop payment, but it is dated

4.5.2009 i.e., after the dishonour of the cheque. When

such is the situation, the dishonour note issued by the

Bank that the cheque came to be dishonoured for

insufficient funds is not rebutted by producing Ex.D-3 or

the police complaint and acknowledgement for having

lodged the police complaint would not improve the case of

the accused to any extent. The materials available on

record clearly indicate that the Cheque Ex.P-1 came to be

issued by the accused for the legally recoverable debt and

the same is relied on by the complainant. Under such

circumstances, the finding recorded by the learned Trial

Magistrate that accused is guilty of the offence punishable

under Section 138 of the Negotiable Instruments Act,

confirmed by the first Appellate Court is based on sound

and logical reasons and does not require interference at

the hands of this court. Hence, Point No.1 is answered in

Negative.

9. Regarding Point No.2: Insofar sentence is

concerned, it is seen that the learned Trial Magistrate

convicted the accused sentencing to pay fine of

Rs.5,50,000/- as against the cheque amount of

Rs.5,00,000/-. Out of which, a sum of Rs.5,40,000/- is

ordered to be paid as compensation to the complainant

and the balance to the State. Therefore, in the considered

opinion of this court, the accused has taken a false plea

and not able to establish that the cheque in fact was stolen

and mis-used by the complainant. There is no scope for

this court to interfere with the discretionary order of the

learned Magistrate and confirmed by the first Appellate

Court in awarding fine amount and therefore, the point

No.2 is answered in Negative and pass the following:

ORDER:

Criminal Revision Petition sans merit and therefore,

dismissed. The services rendered by the learned amicus

curiae is placed on record with appreciation on pro bono

basis.

Sd/-

JUDGE

PL*