Karnataka High Court

Sri. K.S. Murali vs Sri. Appaji on 10 January, 2022

Bench: Sreenivas Harish Kumar

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 10 T H DAY OF JANUARY, 2022

                          BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

  CRIMINAL REVISION PETITION NO.27 OF 2017

BETWEEN:

Sri K.S.Murali,
S/o Sri Sathyanarayana Shetty,
Aged about 43 years,
Proprietor,
M/s. Nand i Build ers and Developers,
No.177/A, 22 n d Cross,
7 t h B Main Road, III Block,
Jayanag ar, Bengaluru-560011.
                                            ...Petitioner
(By Sri Rajesh A., Advocate)

AND:

Sri Appaji,
S/o Late Ning aiah,
Aged about 56 years,
Residing at No.905,
5 t h Main Road , Vijayanag ar,
Beng aluru-560040.
                                          ...Respondent
(By Sri K.Prathap an, Advocate)


     This Criminal Revision Petition is filed under
Section 397 read with 401 of Cr.P.C., praying to set
aside the conviction ord er d ated 12.06.2015 p assed by
the XXII ACMM, Beng aluru in C.C.No.280/2012 and
confirmed   the same b y judgment and ord er dated
01.12.2016 p assed by the LVII I Additional City Civil
and Sessions Judge, Bengaluru in Crl.A.No.900/2015.
                                   :: 2 ::


     This Criminal Revision Petition coming on for
hearing through video conferencing this d ay, the
Court mad e the following:

                              ORDER

This revision petition is directed against the

judgment dated 1.12.2016 passed by the

Additional City Civil and Sessions Judge,

Bengaluru, in Criminal Appeal 900/2015. The facts

that have led to preferring this revision petition

are as follows : -

2. The respondent initiated a proceeding

under section 138 of the Negotiable Instruments

Act (for short referred to as the 'N.I. Act') in the

Court of Additional Chief Metropolitan Magistrate,

Bengaluru, by filing a complaint which was

registered in C.C.280/2012. The respondent

stated that in relation to a liability that the

petitioner owed to him in connection with a joint

development agreement dated 30.6.2008, the

petitioner issued two cheques, one for :: 3 ::

Rs.13,50,000/- and another for Rs.5,00,000/-.

The cheque for Rs.13,50,000/- was issued on

25.8.2010 initially and it is stated in the complaint

that the date was subsequently corrected as

5.2.2011. The respondent presented these two

cheques for encashment and as they were

dishonoured and returned with an endorsement

"exceeds arrangement", the respondent initiated

action under section 138 of the N.I. Act.

3. In the court below, the petitioner took up

a specific defence that he had totally made

payment of Rs.18,50,000/-. The trial court found

that there was evidence for payment of

Rs.5,00,000/- by the petitioner and therefore

accepted the defence in regard to discharge of the

petitioner's liability for Rs.5,00,000/-. However,

with regard to another cheque for Rs.13,50,000/-,

the petitioner's contention that even that sum had

been paid was not accepted and therefore the trial :: 4 ::

court held the petitioner guilty of offence under

section 138 of the N.I Act for dishonour of cheque

for Rs.13,50,000/- and subjected him to sentence

of fine of Rs.5,000/- with default sentence of

simple imprisonment for a period of three months.

The trial court also awarded Rs.13,50,000/- with

interest at the rate of 6% p.a from the date of the

cheque till realization of the cheque towards

compensation to the respondent. When the

petitioner preferred an appeal to the Sessions

Court aggrieved by the judgment of conviction and

sentence, the appellate court confirmed the

judgment of the trial court and hence this revision

petition.

4. I have heard the arguments of Rajesh A

for the petitioner and Sri K.Prathapan, the learned

counsel for the respondent.

5. The argument of the petitioner's counsel is

that the trial court and the appellate court erred in :: 5 ::

not accepting the probability in the defence put

forth by the petitioner. He submitted that the trial

court accepted the defence that payment of

Rs.5,00,000/- had been made by the petitioner to

the respondent and that was the reason for not

accepting the respondent's case with regard to

dishonour of cheque for Rs.5,00,000/-. The

petitioner very well stated that he made payment

of Rs.13,50,000/- to the respondent and in that

connection he produced a document as per Ex.D1

to show that he had withdrawn certain sums on

two dates and from the money so withdrawn, he

had made payment to the respondent. He also

argued that the payment of money was made in

the presence of one Raju. Without appreciating

this evidence, the trial court wrongly came to

conclusion that the petitioner had not placed any

evidence to show payment of Rs.13,50,000/-.

There was no legally enforceable debt as on the

date the cheques were issued. In this view, the :: 6 ::

petitioner should have been acquitted of the

offence. The appellate court has also not

appreciated the evidence properly and therefore,

there is a case for interference in this revision

petition.

6. On the other hand, learned counsel for the

respondent submitted that while the respondent

does not dispute payment of Rs.5,00,000/-, so far

as payment of Rs.13,50,000/- is concerned, the

petitioner did not place any evidence before the

court. Production of Ex.D1, statement of bank

account, does not show payment of money to the

respondent. He might have withdrawn the money

but, no inference can be drawn that from the

money so withdrawn, the petitioner made payment

of Rs.13,50,000/- to the respondent. When it is

the specific case of the petitioner that payment

was made in the presence of one Raju, he should

have been examined as a witness. In the absence :: 7 ::

of evidence to this effect, the trial court rightly

came to the conclusion that the defence cannot be

accepted. The appellate court has also rightly

held that there is no probability in the defence put

forth by the petitioner and hence both the courts

below have not committed any illegality in

convicting the petitioner with regard to dishonour

of cheque for Rs.13,50,000/-.

7. Having heard the learned counsel for the

parties, it is to be stated that in the revision

petition, there is no scope for re-appreciation of

evidence. Both the courts below have consistently

held on facts that the petitioner issued the

cheques for discharging his liability. In fact, one

specific defence of the petitioner about payment of

Rs.5,00,000/- has been upheld. If it was the case

of the petitioner that even Rs.13,50,000/- had

been paid in the presence of one Raju, nothing

prevented the petitioner from examining the said :: 8 ::

Raju. No doubt, Ex.D1 shows certain withdrawals

by the petitioner from the bank but, that does not

mean that after withdrawing the money from the

bank, the petitioner made payment of

Rs.13,50,000/- to the respondent. No such

inference can be drawn merely based on bank

statement. Therefore the trial court appears to

have come to right conclusion that Rs.13,50,000/-

remained unpaid by the petitioner and in this

regard that a cheque was issued. Since it was

dishonoured, offence under section 138 of the N.I

Act would get attracted. I do not find any

infirmity in holding the petitioner guilty of the said

offence. The appellate court has also come to a

right conclusion to confirm the judgment of the

trial court. Therefore so far as convicting the

petitioner is concerned, I do not find a ground to

interfere.

:: 9 ::

8. However, there is scope for interfering

with the sentence. The trial court has sentenced

the petitioner as below: -

"Acting under Section 265 of Cr.P.C., the accused is convicted for the offence punishable under Section 138 of N.I.Act and sentenced to pay fine of Rs.5,000/- (Rs. Five thousand only) in default, to undergo S.I. for 03 months.

The complainant is awarded Rs.

13,50,000/- (Rs. Thirteen Lakhs fifty thousand only) as compensation with simple interest @ 6% P.A. from the date of cheque till realization of the cheque and same shall be paid to the complainant within the period of 30 days from the date of this order. In default of payment of compensation amount, the accused shall undergo S.I. for a period of one year."

9. The trial court has awarded interest at 6%

p.a on the amount of Rs.13,50,000/-. The legal :: 10 ::

infirmity forthcoming is that the trial court

awarded default sentence not only on the fine

amount of Rs.5,00,000/- but, also non-payment on

the compensation amount of Rs.13,50,000/-. If

section 138 of the N.I Act is perused, whenever a

court finds the accused guilty of the said offence,

he may be punished with imprisonment for a term

which may be extended to two years or with fine

which may extend to twice the amount of the

cheque. The reason for awarding fine twice the