Sri. H.B. Manjunath vs Sri. G. Shanmukhappa
2023 Latest Caselaw 6008 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 29TH DAY OF AUGUST, 2023

                       BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.742 OF 2015

BETWEEN:

SRI. H.B. MANJUNATH,
S/O. HULIKATTE BEERAPPA,
AGED ABOUT 36 YEARS,
R/AT # 1207/14, KURUBARAKERE,
NEAR DUGGAMMA TEMPLE,
DAVANAGERE-577 002
                                           ....PETITIONER

(BY SRI. HAREESH BHANDARY .T, ADVOCATE)

AND:

SRI. G. SHANMUKHAPPA,
S/O LATE GUDDAPPA,
AGED ABOUT 50 YEARS,
R/O # 3714/107A, M.C.C.,
'A' BLOCK, DAVANAGERE-577 002
                                          ...RESPONDENT
(BY SRI. S.V. PRAKASH, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED
29.09.2014 PASSED BY THE PRL.SR.C.J. AND C.J.M.,
DAVANAGERE IN C.C.NO.375/2012 AND THE JUDGMENT AND
ORDER DATED 27.06.2015 PASSED BY THE II ADDL. DIST.
AND S.J., DAVANAGERE IN CRL.A.NO.121/2014 AND ACQUIT
THE PETITIONER.
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     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 16.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                           ORDER

This revision is filed by the accused under Section

397 read with Section 401 of Criminal Procedure Code,

1973 ('Cr.P.C.' for short) challenging the judgment of

conviction and order of sentence passed by Principal

Senior Civil Judge and CJM, Davanagere in

C.C.No.275/2012 and confirmed by II Additional Sessions

Judge, Davanagere in Crl.A.No.121/2014 vide judgment

dated 27.06.2015.

2. For the sake of convenience, the parties herein

are referred with original ranks occupied by them before

the trial Court.

3. The brief factual matrix leading to the case are

that on 01.02.2009, accused approached the complainant

for a hand loan of Rs.1,50,000/- for his legal necessity

and he received the same on the said day. It is also

asserted that accused had issued a post dated cheque

dated 01.06.2009 towards re-payment of the said debt

and when on 10.06.2009, the said cheque was presented,

it was returned with an endorsement as 'insufficient of

funds'. As accused did not respond, the complainant has

got issued a legal notice to the accused and the notice

was served but accused did not repay the loan amount.

Hence, he filed a complaint under Section 200 of the

Cr.P.C alleging that the accused has committed an

offence punishable under Section 138 of Negotiable

Instruments Act, 1881 ( 'N.I. Act' for short).

4. The learned Magistrate has taken cognizance

of the said offence and issued process against the

accused. The accused has appeared through his counsel

and was enlarged on bail. He has also denied the

accusation.

5. The complainant was got examined himself as

PW1 and he has also placed reliance on Ex.P1 to Ex.P7.

Thereafter, the statement of accused under Section 313

of Cr.P.C was recorded to enable the accused to explain

the incriminating evidence appearing against him in the

case of the prosecution. The case of the accused is of

total denial. However, accused has got examined himself

as DW1 and he has also placed reliance on three

documents marked at Ex.D1 to Ex.D3.

6. After hearing the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has convicted the accused under

Section 255 (2) of Cr.P.C for the offence punishable

under Section 138 of the Act and imposed Simple

Imprisonment for a period of six months with fine of

Rs.3,00,000/- with a default clause.

7. Being aggrieved by this judgment of conviction

and order of sentence, the accused has approached the

learned II Additional Sessions Judge, Davanagere and the

learned Sessions Judge after re-appreciating the oral and

documentary evidence has dismissed the appeal by

confirming the judgment of conviction and order of

sentence. Against these concurrent findings, the accused

is before this court by way of this revision.

8. Heard the arguments advanced by the learned

counsel for revision petitioner / accused and learned

counsel for the respondent. Perused the records. Now the

following point would arise for my consideration:

(i) Whether the judgment of conviction and order of sentence passed by both the courts below are perverse, arbitrary and illegal so as to call for any interference by this court?

9. It is the specific contention of the complainant

that the accused for his personal needs on 01.02.2009

availed hand loan of Rs.1,50,000/- and in discharge of

the said debt, the cheque dated 01.06.2009 came to be

issued. It is an admitted fact that the cheque belongs to

the accused and it bears his signature. It is also admitted

fact that both the complainant and accused are distant

relatives. Since, the cheque and signature have been

admitted; the initial presumption under Section 139 of

the Act is in favour of the complainant. It is for the

accused to rebut the said presumption by leading cogent

evidence on the basis of preponderance of probability.

10. The complainant has got examined himself as

PW1 and he has produced the cheque at Ex.P1. In his

examination, he has reiterated the complaint allegations.

PW1 was cross examined at length but except formal

suggestions, his evidence is not at all impeached. A

simple suggestion was made that Ex.P1 was created for

this false case. A defence was set up by the accused that

the accused has availed a loan of Rs.15,000/- from one

Susheelamma on 24.05.2006 and at that time, Ex.P1 was

handed over to her as a security and he has repaid the

said amount to Susheelamma. It is further asserted that

the complainant has misused the cheque in favour of

Susheelamma but to substantiate his defence, the

accused has not produced any documents to show that

he has availed a loan of Rs.15,000/- from Susheelamma.

11. There was an attempt to dispute the financial

status of the complainant but from Ex.P7, it is evident

that the complainant was capable of advancing the loan

of Rs.1,50,000/- as on 31.01.2009, itself he has withdrew

Rs.2,50,000/- from his bank account. So the financial

status cannot be disputed.

12. In his defence, accused has raised defence

that Ex.P1 was given as a security to one Susheelamma

and the same was being misused by the complainant. But

all along, it is the contention of the accused, that the

relationship between himself and the accused were not

cordial. But in his evidence, he claimed that complainant

himself took him to Susheelamma and got advanced loan

of Rs.15,000/-. Though he asserts that he has repaid the

loan with interest, no evidence is forthcoming. It is

further important to note here that the accused has not

taken any steps against Susheelamma. He has also

admitted that he has not produced any documents to

show that he has handed over Ex.P1 to Susheelamma.

13. In the further cross-examination, accused

admits that Susheelamma is not alive and she died on

22.10.2011. He asserts that all along, he has sought

return of the cheque from Susheelamma, but he admits

that he has not taken any action against Susheelamma.

He has not even issued any notice to Susheelamma and

further, he admits that between complainant and himself

there are no other cases. His evidence was recorded in

the year 2013. He claims that Susheelamma died in the

year 2011, but this transaction is of the year 2009 and

thereafter for two years, Susheelamma survived. Now it

is argued that Susheelamma was not carrying any good

health, but no evidence is placed to show that

Susheelamma was not carrying any good health and

accused was not able to initiate steps against her. He

could have issued a legal notice to Susheelamma to

return the cheque or he could have initiated some action,

but he has not done so and he has taken an untenable

defence. Hence, the defence raised by the accused is not

acceptable. It is not the case of the accused that the

complainant is doing money lending business. Hence, it is

evident that the accused having availed the loan from the

complainant has issued a cheque having knowledge that

he had no sufficient amount in his account. The accused

has failed to prove his defence so as to rebut the

presumption available in favour of the complainant, as

such, both the courts below are justified in convicting the

accused after properly appreciating the oral and

documentary evidence. No illegality or infirmity is found

in the judgment of conviction passed by both the courts

below.

14. However, the learned Magistrate has convicted

the accused to undergo Simple Imprisonment for a period

of six months and also imposed fine of Rs.3,00,000/-.

Admittedly, it is a private transaction between the

parties. When the fine was imposed double the cheque

amount, question of again imposing six months

imprisonment was unwarranted. The Apex Court, in

number of decisions held that in cheque bounce cases,

imposing the sentence of imprisonment is not warranted.

Further, for private transaction, the State cannot be

burdened of bearing the expenses of the accused in

custody. Looking to these facts and circumstances, the

imposition of sentence of imprisonment is erroneous and

to this extent only, the revision needs to be allowed.

However, the other portion of the judgment of sentence

regarding fine does not call for any interference.

Considering these facts and circumstances, the point

under consideration is answered partly in the affirmative.

Accordingly, I proceed to pass the following order:

ORDER

(i) The revision petition is allowed in part.

(ii) The impugned judgment of conviction passed by Principal Senior Civil Judge and CJM, Davanagere in C.C.No.275/2012 and confirmed by II Additional Sessions Judge, Davanagere in

Crl.A.No.121/14 vide judgment dated 27.06.2015 stands confirmed.

(iii) However, the sentence of imprisonment for six months imposed by trial court and confirmed by the appellate court is set aside and the sentence is restricted to fine of Rs.3,00,000/-. Only to this extent, the sentence portion stands modified. The rest of the order regarding sentence stands confirmed.

           (iv)    The amount in deposit in any
     courts    made    by     the     accused    shall   be

refunded to the respondent/complainant.

Sd/-

JUDGE

SS