Sri Shivaraj vs Sri A Johnson Ravi
2023 Latest Caselaw 2124 Kant

                                             -1-

                                                     CRL.RP No. 343 of 2015



                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                           DATED THIS THE 6TH DAY OF APRIL, 2023
                                           BEFORE
                        THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                                   CRL.R.P. No. 343 OF 2015
                BETWEEN:
                SRI SHIVARAJ
                S/O LATE BYRAPPA
                AGED ABOUT 45 YEARS
                R/A BANDI KODIGEHALLI
                VILLAGE, JALA HOBLI
                BANGALORE NORTH TALUK
                BANGALORE - 562 157.
                                                                   ...PETITIONER
                (BY SMT. POOJA KATTIMANI, AMICUS CURIAE)
Digitally
signed by B A   AND:
KRISHNA         SRI A. JOHNSON RAVI
KUMAR
Location:       S/O LATE AURL DASS
High Court of   AGED ABOUT 44 YEARS
Karnataka
                NO.2 "LITTLE CASTLE" 4TH CROSS
                NANJAPPA GARDEN
                BAPUSAPALYA
                BANGALORE - 560 043.
                                                               ...RESPONDENT
                (BY SRI D.L. RANSA VASANTHI, ADV.)


                       THIS CRL.R.P. IS FILED U/S.397 CR.P.C PRAYING TO SET
                ASIDE THE JUDGMENT PASSED BY THE LEARNED JUDGE AT FTC-III,
                ACQUIT OF THE APPELLANT - ACCUSED OF OFFENCES P/U/S 138 OF
                N.I. ACT AND SET ASIDE THE JUDGMENT PASSED BY THE LEARNED
                14TH     ADDL.   METROPOLITAN    MAGISTRATE   AT    MAYOHALL,
                BANGALORE IN C.C.NO.26716/2012 AND ACQUIT THE APPELLANT
                ACCUSED FOR OFFENCES P/U/S 138 OF N.I. ACT.


                       THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
                THE COURT MADE THE FOLLOWING:
                                     -2-

                                                CRL.RP No. 343 of 2015



                                  ORDER

This criminal revision petition under Section 397 of Cr.PC

is filed by the accused challenging the judgment and order of

conviction and sentence dated 03.03.2014 passed by the XIV

Addl. Chief Metropolitan Magistrate, Bengaluru, in

C.C.No.26176/2012, and the judgment and order dated

24.01.2015 passed by the Fast Track Court-III, Mayohall,

Bengaluru, in Crl.A.No.25053/2014.

2. Heard the learned Amicus Curiae appearing on behalf

of the petitioner and the learned Counsel appearing on behalf

of the respondent.

3. Facts leading to filing of this revision petition narrated

briefly are, the petitioner allegedly had entrusted some civil and

interior work of his house to the respondent-complainant and in

this regard, he was due to pay a sum of Rs.13 lakhs to the

respondent. Towards payment of the said amount, the

petitioner initially had agreed to sell his vacant land to the

respondent-complainant, but later on, he had changed his mind

and had repaid the amount due by issuing cheque bearing

No.898915 dated 04.04.2011 for a sum of Rs.13 lakhs drawn

on Vijaya Bank, Mylanahalli Branch, Bengaluru, in favour of the

CRL.RP No. 343 of 2015

respondent. The said cheque on presentation for realization

was dishonoured by the drawee bank with an endorsement

'funds insufficient'. The complainant, thereafter, got issued a

legal notice dated 06.06.2011 which was duly served on the

respondent on 18.06.2011. However, inspite of service of

notice, the petitioner did not pay the amount covered under the

cheque in question, but issued a reply as per Ex.P-13. It is

under these circumstances, the respondent had approached the

Trial Court by filing a private complaint against the petitioner

under Section 200 Cr.PC for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881 (for short,

'the Act').

4. In the said proceedings, the petitioner had appeared

before the Trial Court and pleaded not guilty. The respondent-

complainant to prove his case had examined himself as PW-1

and got marked 13 documents as Exs.P-1 to P-13. Though the

petitioner had denied the incriminating circumstances available

against him on record during the course of his statement under

Section 313 Cr.PC, however, he did not choose to lead any

defence evidence. The Trial Court, thereafter, heard the

arguments on both sides, and by its judgment and order dated

CRL.RP No. 343 of 2015

03.03.2014 convicted the petitioner for the offence under

Section 138 of the Act and sentenced him to undergo simple

imprisonment for a period of one year and pay

compensation/fine of Rs.20,05,000/-. The said judgment and

order of conviction and sentence passed by the Trial Court was

confirmed by the Appellate Court in Crl.A.No.25053/2014 by

judgment dated 24.01.2015. It is in this background, the

petitioner is before this Court.

5. Learned Amicus Curiae appearing on behalf of the

petitioner submits that the courts below have erred in

convicting the petitioner for the offence under Section 138 of

the Act. She submits that there is no material to show that the

petitioner had entrusted civil and interior work in his house to

the respondent, nor there is any material to show that the

petitioner was due to pay a sum of Rs.13 lakhs to the

respondent towards the work done by him. She submits that

when the respondent had failed to prove the transaction under

which the petitioner was due to pay a sum of Rs.13 lakhs to the

respondent, the presumption under Section 139 of the Act

would not get attracted against the petitioner. She submits that

the defence of the petitioner has not been properly appreciated

CRL.RP No. 343 of 2015

by the courts below, and thereby erred in convicting the

petitioner for the alleged offence. Accordingly, she prays to

allow the revision petition.

6. Per contra, learned Counsel for the respondent has

argued in support of the impugned judgment and order and

submits that having regard to the reply given by the petitioner

to the legal notice and also the defence raised by him, it is very

clear that the petitioner was due to pay a sum of Rs.13 lakhs to

the respondent and the cheque in question was issued towards

repayment of the said amount, and therefore, the courts below

have rightly convicted the petitioner for the offence under

Section 138 of the Act. Accordingly, she prays to dismiss the

petition.

7. I have carefully considered the arguments addressed

on both sides and also perused the material available on

record.

8. Ex.P-1 is the cheque in question which is issued by the

petitioner in favour of the respondent for a sum of Rs.13 lakhs.

Since the said cheque was dishonoured by the drawee bank,

the respondent had got issued a legal notice to the petitioner,

CRL.RP No. 343 of 2015

for which the petitioner had replied as per Ex.P-13. In his reply,

the petitioner in paragraph 3 has categorically admitted about

the execution of the agreement for sale as per Ex.P-8 and also

the receipt of Rs.33 lakhs as advance sale consideration under

the said agreement. It is also admitted by the petitioner that

out of the amount of Rs.33 lakhs, he had repaid an amount of

Rs.19 lakhs to the respondent and towards balance of Rs.14

lakhs, he had issued two separate cheques for a sum of Rs.13

lakhs and Rs.one lakh, respectively, in favour of the

respondent. It is the case of the petitioner that after issuing the

aforesaid two cheques, he had sought time for payment of the

amount covered under the said cheques, but the respondent

without the consent of the petitioner had presented the said

cheque for realization.

9. From the aforesaid defence of the petitioner, the

transaction between the petitioner and the respondent under

the sale agreement - Ex.P-8 is admitted. It is also admitted

that he has issued the cheque in question to the respondent

towards repayment of Rs.13 lakhs which he was due to pay

under the sale agreement at Ex.P-8, which undisputedly was

cancelled subsequently.

CRL.RP No. 343 of 2015

10. Though the petitioner has sought to take a stand that

the cheque in question was issued as security for the amount

for which he was due to pay to the respondent under the

agreement for sale at Ex.P-8, having regard to the specific

defence that out of the amount of Rs.33 lakhs received by him

under the agreement for sale at Ex.P-8 he had repaid an

amount of Rs.19 lakhs and towards payment of balance amount

of Rs.14 lakhs he had issued two cheques for a sum of Rs.13

lakhs and Rs.one lakh, respectively, the defence that the

cheque in question was issued towards security has to fail.

11. From the oral and documentary evidence available on

record, it is very clear that the petitioner was due to pay the

respondent an amount of Rs.14 lakhs under the sale agreement

at Ex.P-8 and towards part payment of the same, the petitioner

had issued the cheque in question for a sum of Rs.13 lakhs to

the respondent. The said cheque on presentation for realization

was dishonoured and the complaint has been filed by the

respondent after complying with all the statutory requirements.

Under the circumstances, in my considered view, the courts

below were fully justified in convicting the petitioner for the

offence under Section 138 of the Act.

CRL.RP No. 343 of 2015

12. However, considering the fact that under the

agreement for sale - Ex.P-8, out of the amount of Rs.33 lakhs

which was received by the petitioner, he had already paid a

sum of Rs.19 lakhs to the respondent and for the balance

amount of Rs.14 lakhs he had issued two separate cheques for

a sum of Rs.13 lakhs and Rs.one lakh and he had sought some

time for repayment of the amount covered under the said

cheques, I am of the considered view that the order of

sentence passed by the courts below against the petitioner for

the offence under Section 138 of the Act needs to be modified.

Accordingly, the following order:

13. The criminal revision petition is allowed in part. The

judgment and order of conviction passed by the courts below

against the petitioner for the offence under Section 138 of the

Act is upheld. The order of sentence passed by the Trial Court

which was confirmed by the Appellate Court is modified and the

petitioner is sentenced to pay a fine of Rs.15,50,000/- and out

of the fine amount, an amount of Rs.15 lakhs shall be paid to

the respondent-complainant towards compensation and the

balance amount of Rs.50,000/- shall be remitted to the State,

CRL.RP No. 343 of 2015

and in default of payment of fine amount, the petitioner shall

undergo simple imprisonment for a period of six months.

14. The services of the Amicus Curiae is appreciated and

placed on record, and the fees of the Amicus Curiae is fixed at

Rs.10,000/-.

Sd/-

JUDGE

KK