Sri H C Muniyellappa vs Sri. Rajanna
2021 Latest Caselaw 3802 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 10TH DAY OF NOVEMBER, 2021

                      BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.928/2015

BETWEEN:

Sri H.C.Muniyellappa,
S/o.Chittaiah @ Pappanna,
Aged about 59 years,
R/at No.135/10,
Doddamma Devi Temple Street,
Near Kodandarama Temple,
Hulimavu Village,
Bannerghatta Road,
Bengaluru - 560 076.
                                    ... Petitioner
(By Sri Govindaraju, Advocate for
 Sri Nehru P., Advocate)

AND:

Sri Rajanna,
S/o. late Nyathreddy,
Residing at Chandapura Village,
Attibele Hobli, Anekal Taluk,
Bengaluru District,
Bangalore - 560 091.
                                    ...Respondent

(By Sri C.V.Annaiah, Advocate)
                            2


      This Criminal Revision Petition is filed under
Section 397 R/w 401 Cr.PC praying to set aside the
entire impugned order passed by the learned 16th
ACMM, Bangalore in C.C.No.24048/2011 dated
09.07.20214       and      Crl.A.No.859/2014     and
Crl.R.P.No.419/2014 dated 25.07.2015 passed by the
learned LIX Addl. City and S.J., Bangalore.

    This Criminal Revision Petition coming for
Admission this day, the court made the following:-

                        ORDER

Heard Sri Govindaraju for Sri Nehru P., learned

counsel appearing for the petitioner and

Sri C.V.Annaiah, learned counsel appearing for the

respondent.

2. This revision petition is preferred against the

Order passed by the learned XVI Additional C.M.M.,

Bengaluru in C.C.No.24048/2011 dated 09.07.2014

wherein, the revision petitioner has been convicted for

the offence punishable under Section 138 of the

Negotiable Instrument Act, 1881 (hereinafter referred

to as 'the Act' for brevity) and was ordered to pay fine

amount of Rs.6,00,000/- with default sentence of one

year simple imprisonment. The entire fine amount of

Rs.6,00,000/- was ordered to be paid as

compensation to the complainant, which was

confirmed by the First Appellate Court in

Crl.A.No.859/2014 dated 25.07.2015.

3. The brief facts of the case are as under:

A case came to be filed under Section 200 of

Cr.PC by the respondent (hereinafter referred to as

'the complainant') contending that the revision

petitioner (hereinafter referred to as 'the accused')

has issued a cheque bearing No.071362 dated

29.03.2011 for a sum of Rs.6,00,000/-, which on

presentation came to be dishonoured. A statutory

notice came to be issued which was replied by the

accused stating that the complainant is in the habit of

cheating innocent persons. Left with no alternative,

the complainant has sought for taking action against

the accused.

4. After completing the required formalities,

plea was recorded. Accused was pleaded not guilty.

Therefore, trial was held. In order to prove the case,

the complainant got himself examined as PW-1 and

relied on seven documents, which were got marked as

Ex.P.1 to Ex.P.7. To rebut the case of the

complainant, the respondent got examined himself as

DW-1, but did not choose to mark any document to

substantiate his case. Statement of the accused was

recorded as contemplated under section 313 of Cr.PC,

wherein, the accused denied all the incriminatory

evidence. The learned Magistrate after completion of

recording of evidence and hearing the parties has

convicted the accused and ordered to pay a sum of

Rs.6,00,000/- to the complainant as fine with default

sentence of one year simple imprisonment. Being

aggrieved by the same, the accused filed an appeal

before the LIX Additional City Civil and Sessions Judge

in Crl.A.No.859/2014 and so also the complainant filed

revision petition in Crl.R.P.419/2014 seeking

enhancement of the fine amount.

5. The learned Sessions Judge after securing

the records and hearing the parties in detail, by the

Order dated 25.07.2015 dismissed the appeal filed by

the accused and the Criminal Revision Petition filed by

the complainant, whereby, the order passed by

learned Magistrate stood confirmed.

6. Being aggrieved by the said order, the

accused is before this court in the present revision and

the complainant has not chosen to further pursue the

matter insofar as the findings are concerned.

7. Sri Govindaraju, learned counsel appearing

for the revision petitioner/accused vehemently

contended that both Courts have not properly

appreciated the material available on record and has

wrongly recorded an order of conviction. He further

contended that the cheque in question was stolen by

the sister of the complainant and that has been

misused and in this regard a private complaint has

also been lodged. But the same came to be dismissed

on the ground of jurisdiction. Therefore, taking note

of the said aspects of the matter sought to allow the

petition.

8. He further contended that the complainant

had no capacity to lent a sum of Rs.6,00,000/- to the

accused and there was no necessity for the accused to

take hand loan of Rs.6,00,000/-. Therefore, the said

aspect of the matter is to be appreciated by this Court

by allowing the present revision petition. He also

contended that the complainant has failed to prove

the transaction by examining the witnesses before the

Court and the said aspect of the matter is not taken

note of by both Courts. He would further contend that

the application filed by the accused seeking to

produce additional evidence is also not considered by

the First Appellate Court in proper manner and

sufficient opportunity was not granted by both Courts

for the accused. Therefore, the judgment of the First

Appellate Court has resulted in miscarriage of justice

and has sought for allowing the revision petition.

9. Per contra, Sri C.V.Annaiah, learned counsel

for the respondent/complainant supported the

impugned judgments. He would contend that a sum of

Rs.5,25,000/- was withdrawn from the bank and

another sum of Rs.75,000/- which was available with

the complainant has been lent to the accused on a

promise to re-pay it within a short span of time and

when the accused failed to do so, the complainant has

presented the cheque, which on presentation came to

be dishonoured. He further pointed out that there is

no bona fides in the defence taken by the accused

inasmuch as the contents of reply notice and the oral

testimonials of DW-1, which are contrary to each

other. Therefore, the presumption available to the

complainant under Sections 118 and 139 of N.I. Act is

not rebutted by the accused by placing probable

evidence on record. Therefore, both Courts are

justified in passing the impugned orders and has

sought for dismissal of the revision petition.

10. In view of the rival contentions and having

regard to the scope of the revision petition, following

points arise for consideration;

1. Whether the finding recorded by the learned Magistrate that the accused is guilty of offence punishable under Section 138 of the N.I.Act and confirmed by the

First Appellate Court is just and proper?

2. Whether the sentence is excessive?

11. In the case on hand, issuance of cheque

and the signatures found on the cheque is not in

dispute. According to the accused, the said cheque

reached the hands of the complainant by stealing the

same from the custody of the accused by the sister of

the complainant. No doubt, a private complaint came

to be filed in this regard, which was dismissed on the

ground of jurisdiction. Learned counsel for the

respondent submits that the said private complaint

was filed as an afterthought when the case before the

trial Magistrate has reached the stage of argument.

Be that as it may. The accused did not pursue the

matter in respect of the said private complaint.

Therefore, on record there is no positive action taken

by the accused about the alleged stealing away of the

cheque from the custody of the accused.

12. Once the cheque is passed on and the

signature found is proved, then, the burden lies upon

the accused to show that the cheque was not issued

for the purpose of legally enforceable debt. In this

regard, the First Appellate Court has relied upon the

decision of the Hon'ble Apex Court in the case of

Rangappa Vs. Mohan reported in AIR 2010 SC

1898 in paragraph No.17 of the impugned order.

13. When the cheque having been issued and

the amount therein specifically indicates the sum of

Rs.6,00,000/-, it is for the accused to show that the

cheque was not issued for legally enforceable debt. In

this regard, no doubt, the accused examined himself

as DW 1. In reply notice it has been stated that the

complainant is in the habit of cheating innocent

people. There is no whisper in the reply notice that

the cheque was stolen from the custody of the

accused. Therefore, there is clear contradiction in the

contents of the reply and the defence evidence. There

is no positive evidence placed on record to establish

that the cheque was infact stolen. Under such

circumstances, the presumption available to the

complainant is not discharged by the accused by

placing probable evidence on record.

14. The complainant having discharged the

initial burden, the trial Magistrate has properly

appreciated these aspects of the matter and convicted

the accused for the offence punishable under Section

138 of the N.I.Act, which has been rightly appreciated

by the First Appellate Court.

15. Insofar as the plea of non granting of

sufficient opportunity to the accused to put forth his

case, it cannot be stated that he is deprived of

granting sufficient time in view of the order sheet of

the First Appellate Court as well as the trial Court. As

regards rejection of additional evidence, the learned

trial Judge has recorded sound and logical reason in

rejecting the prayer of the accused.

16. In view of the discussions made above, this

Court is of the considered opinion that there is no

legal infirmity or perversity in the findings recorded by

the trial Magistrate as well as the First Appellate

Court. Accordingly, point No.1 is answered in

'Negative'.

17. Insofar as point No.2 is concerned, no

doubt, the complainant had filed revision petition

seeking enhancement of compensation amount before

the First Appellate Court. The cheque amount is for

Rs.6,00,000/- and the same has already been ordered

by the trial Magistrate as compensation to be paid by

the accused. However, the revision petition also came

to be dismissed by the First appellate Court and the

complainant has not pursued the matter in that

regard. Under such circumstance, point No.2 is also

answered in 'Negative' and accordingly, the following

order is passed.

ORDER

The Revision petition is dismissed.

Sd/-

JUDGE

PN