Smt C Pramila vs Sri M G Devendra
2022 Latest Caselaw 11864 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 15TH DAY OF SEPTEMBER, 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

                CRL.RP.NO.228 OF 2014

BETWEEN:

SMT. C. PRAMILA
W/O LATE SHANKAR
AGED ABOUT 45 YEARS
2ND DIVISION CLERK
KA.RA.V. CHIKITIHSALAYA (ESI)
BELAVADI, MYSORE
R/O NO.360, BELAVADI
MYSORE TALUK - 570 001.                  ...PETITIONER

(BY SRI.KESHAV R. AGNIHOTRI, ADV.)

AND:

SRI. M. G. DEVENDRA
S/O GOPALAGOWDA
AGED ABOUT 47 YEARS
BLUE STAR RESTAURANT
TARIKERE ROAD
BHADRAVATHI - 577 002.                  ...RESPONDENT
(RESPONDENT SERVED)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 CR.P.C., PRAYING TO SET
ASIDE THE JUDGMENT DATED 14.06.2010 PASSED IN
C.C.NO.1783/2008 BY THE ADDL.J.M.F.C. BHADRAVATHI AND
ALSO THE JUDGMENT DATED 8.4.2011 PASSED IN
CRL.A.NO.62/2010 BY THE P.O. F.T.C. BHADRAVATHI AND
DISMISS THE PRIVATE COMPLAINT FILED BY THE
RESPONDENT IN C.C.NO.1783/2008 ON THE FILE OF ADDL.
J.M.F.C. BHDRAVATHI AND ACQUIT THE PETITIONER FOR
THE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 138
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OF N.I.ACT RECORDING THE COMPROMISE PETITION FILED
IN CRL.A.NO.62/2010.

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

                               ORDER

The concurrent findings recorded by the Courts

below is under challenge in this revision petition

preferred by the accused.

2. The trial Court has convicted the accused for

the offence punishable under Section 138 of the

Negotiable Instrument Act, 1881 (for short 'the Act') in

respect of dishonour of a cheque bearing No.660175

dated 04.05.2007 drawn on SBM, New Town Road,

Bhadravathi, issued by the accused to the complainant

for a sum of Rs.50,000/-. The trial Court has sentenced

the accused to pay a fine of Rs.1,00,000/- and in default

of payment of fine, to undergo simple imprisonment for

six months. Out of the fine amount, a sum of

Rs.90,000/- has been ordered as compensation to the

complainant.

3. The Appellate Court has dismissed the appeal

preferred by the accused thereby confirming the

judgment and order of conviction and sentence passed

by the trial Court.

4. Heard the learned counsel for the petitioner

and perused the material on record.

5. Before the trial Court, the complainant has

got himself examined as PW-1 and got marked seven

documents.

6. The defence taken by the accused is that

there was no capacity for the complainant to advance a

sum of Rs.50,000/- and he has not stated as to the date,

month, year and the place of advancement of loan of

Rs.50,000/- to the accused. Further, it is argued on

behalf of the petitioner that the complainant has

admitted that he has executed a promissory note, but he

has not produced the same. Hence, it is contended that

the complainant has not proved his case against the

accused by placing sufficient material.

7. The trial Court has taken into consideration

that Ex.P1 - cheque, is of the accused and it bears her

signature and the complainant has complied with the

requirements of Section 138 of the Act. Further, the

notice issued by the complainant to the accused was

admittedly served, but she has failed to give any reply.

Hence, the complainant has discharged his primary

burden to prove the ingredients of Section 138 of the Act

and therefore, presumption under Sections 118 and 139

of the Act can be safely drawn in favour of the

complainant.

8. The trial Court has also taken into

consideration the fact that the complainant - PW-1 has

explained as to the source of income to the tune of

Rs.50,000/-. Further, the defence taken by the accused

that her son by name Rakesh had availed a loan of

Rs.5,000/- from the complainant and in this regard, the

accused had issued a blank cheque in favour of the

complainant as security, has not been established.

9. The trial Court was of the view that the

accused has failed to establish her defence even by

preponderance of probability. Therefore, the

presumption available to the complainant has remained

un-rebutted.

10. The Appellate Court having re-appreciated the

oral and documentary evidence on record has come to

the conclusion that the judgment rendered by the trial

Court is in accordance with law and there is no illegality

or error committed by the Trial Court. The Appellate

Court has appreciated the cross-examination of the

complainant regarding his lending capacity, wherein he

has explained that he has a Hotel business and had

sufficient income to lend the amount.

11. I see no illegality in the concurrent findings

recorded by the Courts below so as to reverse the same.

12. The learned counsel for petitioner submits

that during the pendency of the appeal, there was a

compromise between the parties and in terms of the

compromise, the accused has paid the agreed amount to

the complainant and the matter was settled. He has

annexed the copy of the compromise petition signed by

the accused as well as the complainant and the learned

counsel appearing for them. However, it appears that

the said compromise was not acted upon and the

Appellate Court has proceeded to confirm the impugned

judgment passed by the trial Court.

14. It is needless to say that if the matter has

been compromised between the parties, then certainly

the complainant will not venture to execute the impugned

order. The petitioner however, cannot avoid the fine,

which is payable to the State.

15. Considering the facts and circumstances of

the case and keeping in view the submission of the

learned counsel for the petitioner and also considering

that the cheque amount is Rs.50,000/- , the fine

imposed by the Trial Court which is confirmed by the

Appellate Court can be reduced from Rs.1,00,000/- to

Rs.55,000/-. Hence, I pass the following:-

ORDER

1. The Revision petition is allowed-in- part.

2. The conviction of the petitioner passed by the Trial Court and confirmed by the Appellate Court for the offence punishable under Section 138 of the Act is confirmed.

3. The sentence is modified and the accused is liable to pay fine of Rs.55,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months.

4. Out of the fine amount, the complainant is entitled for a sum of Rs.50,000/- as compensation and the balance amount of Rs.5,000/- shall be remitted to the State.

SD/-

JUDGE

VMB