Sri S Narsappa vs Smt Shivamma
2021 Latest Caselaw 3680 Kant

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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.357/2012


BETWEEN:

SRI S NARSAPPA
S/O DODDABHEEMANNA,
AGED ABOUT 61 YEARS,
RESIDING AT 885, EWS IIND STAGE,
YELLAHANKAHA NEW TOWN,
BANGALORE-5600106.
                                      ... PETITIONER

(BY SRI. SANDESH C.R., ADVOCATE - AMICUS CURIE)

AND:

SMT SHIVAMMA
W/O G V GANGADHARA
AGED ABOUT 65 YEARS
# 1413/12 IST B MAIN ROAD
3RD CROSS, VIJAYANAGAR
BANGALORE-560040
                                      ...RESPONDENT
(BY SRI. M. S. SIDDARAJU, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF CR.PC
PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE
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DATED:31.1.12 IN CRL.APPEAL NO.42/11 ON THE FILE OF
PRESIDING OFFICER, FTC-VIII, BANGALORE, SET ASIDE
THE ORDER DATED:23.12.10 IN C.C.NO.21817/08 ON THE
FILE OF XVI, ACMM, BANGALORE.

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

Heard Sri. Sandesh C. R., learned Amicus Curie

appearing for the revision petitioner and Sri. M. S.

Siddaraju, learned counsel appearing for the respondent.

2. This revision petition is filed challenging the

order passed by the Court of the XVI A.C.M.M., Bengaluru

dated 23.12.2010 in C.C. No.21817/2008 whereby the

accused came to be convicted for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881

('NI Act' for short) and has ordered to pay a fine of

Rs.2,02,000/- with a default sentence of six months. Out

of which, a sum of Rs.2,00,000/- was ordered to be paid

as compensation to the complainant, which was confirmed

by judgment dated 31.01.2012 in Clrl.A. No.42/2011.

3. Brief facts of the case are as under:

Upon a private complaint lodged by the respondent

herein contended that on 16.01.2008, the accused

borrowed a sum of Rs.2,00,000/- from the complainant to

meet his family necessities with an agreement to repay the

same in few months with interest at the rate of 2% per

month. Despite repeated requests, the accused failed to

pay the amount and ultimately, issued the cheque bearing

No.101948, which is marked at Ex.P1. Which on

presentation came to be dishonored. Legal notice as

contemplated under the statute came to be issued and the

same is not complied or replied. Therefore, the

complainant sought for action against the revision

petitioner.

4. The presence of accused petitioner was

secured and plea was recorded. Accused pleaded not

guilty. In order to prove the case of the complainant, the

complainant got examined herself as PW.1 and relied on

seven documentary evidences, which were exhibited and

marked at Exs.P1 to P7. Accused statement as

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

and thereafter accused examined himself as DW.1. The

learned trial Magistrate after hearing the parties and after

considering the oral and documentary evidence on record,

convicted the accused for the offence punishable under

Section 138 of the NI Act as referred to supra.

5. Being aggrieved by the same, the accused filed

an appeal in Crl.A. No.42/2011 on the Court of the Fast

Track No. VIII, Bangalore City.

6. Learned Judge in the First Appellate Court

secured the records and after hearing the parties,

dismissed the appeal and confirmed the judgment passed

by the learned trial Magistrate. Being aggrieved by the

same, the accused preferred this revision petition.

7. During the pendency of the revision petition,

learned counsel, who represented the accused - revision

petitioner repeatedly remained absent. Therefore, this

Court by order dated 05.02.2021, appointed Sri. Sandesh

C. R., as Amicus Curiae.

8. Heard Sri. Sandesh C. R., learned Amicus Curie

on behalf of the revision petitioner.

9. Learned Amicus Curie vehemently contended

that both the Courts have failed to appreciate the

materials on record in proper perspective and wrongly

convicted the accused for the offence punishable under

Section 138 of NI Act. He further contended that the

capacity to lend a sum of Rs.2,00,000/- was not there with

the complainant and the said aspect of the matter is not

taken note of by both the Courts. He also contended that

the accused had a chit transaction with the complainant

and therefore, the complaint averments is not true and the

said aspect of the matter is not properly appreciated by

both the Courts and sought for allowing the revision

petition.

10. He further contended that the signature found

in Ex.P1 - cheque is not disputed and the same is not

properly proved by the complainant and thus sought for

allowing the revision petition.

11. On behalf of the respondent, there is no

representation.

12. Thus, in the absence of the learned counsel

appearing for the respondent, this Court perused the

records in the light of the arguments advanced on behalf

of the revision petitioner.

13. In view of the grounds urged and the materials

on record and having regard to the scope of the revision,

the following points would arise for consideration:

1. Whether the findings recorded by the learned Magistrate that the accused is guilty of the offence punishable under Section 138 of the N. I. Act which is confirmed by the First Appellate Court in Crl.A. No.42/2011 is suffering from legal infirmity or perversity and thus calls for interference?

2. Whether the sentence is excessive?

14. In the case on hand, issuance of Ex.P1 -

cheque is not in dispute. Insofar as the signature found on

Ex.P1 is concerned, the accused in his cross-examination

categorically admitted that Ex.P1-Cheque belongs to him

and signature found on Ex.P1 is also his signature.

Therefore, automatically the presumption available under

Sections 118 and 139 of the NI Act would automatically

gets attracted.

15. In a matter of this nature, it is for the accused

to rebut the presumption as the complainant has

discharged the initial burden cast upon him. The rebuttal

can be by disproving the case of the complainant or by

placing some other cogent evidence on record. In this

regard, DW.1 though came to be examined, his oral

testimony read as a whole, did not dispute the contentions

taken by the complainant. He has come out with a

different theory that Ex.P1 - Cheque along with two other

cheques were given as security and the same was misused

by the complainant. According to DW.1 - accused, the said

cheques were issued in the year 2003 and the same has

been mis-used by the complainant. It is found from the

records and in the cross-examination of DW.1 that no

action has been taken by the accused for the alleged

misuse of Ex.P1-Cheque. Except orally demanding for

return of the cheque, the accused has not taken any

positive steps for the alleged misuse. These aspects of the

matter has been rightly appreciated by the learned

Magistrate and has convicted the accused for the offence

punishable under Section 138 of NI Act and the same has

been properly re-appreciated by the learned Judge in the

First Appellate Court. The materials on record do not

require any interference by this Court that too, in the

revisional jurisdiction. Accordingly, point No.1 is answered

in Negative.

16. Insofar as point No.2 is concerned, learned

trial Magistrate has awarded a sum of Rs.2,02,000/- as the

fine amount with a default sentence of six months

imprisonment. Out of which, Rs.2,00,000/- is awarded as

compensation to the complainant. Under such

circumstances, this Court is of the considered opinion that

there is no scope for this Court to interfere with the

sentence is concerned. Accordingly, point No.2 is

answered in the Negative and pass the following:

ORDER

The Criminal Revision Petition sans merits and is

hereby dismissed. The services rendered by the amicus

curiae is treated as pronobo with appreciation.

Sd/-

JUDGE

VBS