Sri H K Ramesh vs Sri B A Srinivas Murthy
2023 Latest Caselaw 618 Kant

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                                                   CRL.RP No. 1300 of 2018




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 10TH DAY OF JANUARY, 2023

                                         BEFORE
                       THE HON'BLE MR JUSTICE R. NATARAJ
                CRIMINAL REVISION PETITION NO. 1300 OF 2018
             BETWEEN:

             SRI. H.K. RAMESH
             S/O LATE H.D. KRISHNE GOWDA,
             AGED ABOUT 53 YEARS,
             PROPRIETOR OF JAYASHRI PLASTIC FACTORY,
             NEAR RTO OFFICE,
             BHATTARAHALLI, OLD MADRAS ROAD,
             BENGALURU-560049.

                                                              ...PETITIONER
             (BY SRI. PRASANNA B.R., ADVOCATE)

             AND:

             SRI. B.A. SRINIVAS MURTHY
             S/O ANJANEYAPPA,
             AGED ABOUT 40 YEARS,
             R/AT SHILLANGERE VILLAGE,
             HUTHUR HOBLI,
             KOLAR TALUK-590031.
Digitally
signed by                                                    ...RESPONDENT
SUMA
Location:    (BY SRI. RAVI H.K., ADVOCATE)
HIGH COURT
OF                 THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
KARNATAKA
             SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
             PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
             14.11.2017 IN C.C.NO.151/2013 ON THE FILE OF PRINCIPAL CIVIL
             JUDGE AND J.M.F.C., KOLAR WHICH IS CONFIRMED IN THE
             JUDGMENT DATED 01.10.2018 PASSED BY THE I ADDITIONAL
             SESSIONS JUDGE, KOLAR IN CRL.A.NO.52/2017 AND ACQUIT THE
             PETITIONER.
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                                              CRL.RP No. 1300 of 2018




     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:


                                  ORDER

This petition is filed challenging the judgment of

conviction dated 14.11.2017 passed by the Principal Civil Judge

and JMFC., Kolar in CC.No.151/2013, convicting him for an

offence punishable under Section 138 of Negotiable

Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881'

for short) and the consequent sentence of simple imprisonment

for a period of one year and to pay a fine of Rs.8,10,000/- and

in default of payment of fine, he was ordered to undergo simple

imprisonment for a period of three months. The petitioner has

also challenged the judgment dated 01.10.2018 passed by the

I Additional Sessions Judge, Kolar in Crl.A.No.52/2017, by

which, the judgment of conviction passed by the trial Court was

upheld.

2. The respondent claimed that he knew the petitioner

and that the petitioner had requested for a hand loan of

Rs.8,00,000/- and assured to repay it within 8 months.

Accordingly, the respondents paid a sum of Rs.8,00,000/- by

CRL.RP No. 1300 of 2018

cash, which he drew from his account. After eight months when

he requested the petitioner to repay the loan, the latter issued

a cheque bearing No.335202 dated 25.06.2012 for a sum of

Rs.8,00,000/-. However, when the cheque was presented for

encashment, it returned unpaid on 27.06.2012 as the account

was closed. The respondent caused a notice of demand on

07.07.2012, which was served on the petitioner, who replied

denying his liability. The respondent therefore initiated

proceedings for prosecution of the petitioner for the offence

punishable under section 138 of NI Act, 1881. The sworn

statement of the respondent was recorded and

CC.No.151/2013 was registered. The petitioner was served with

the process, who pleaded not guilty and claimed to be tried.

The respondent was examined as PW.1 and he marked Exs.P1

to P9. The statement of the petitioner was recorded under

Section 313 of Cr.P.C., but he denied the incriminating

evidence against him. The petitioner was examined as DW.1

and he marked Ex.D1 and D2. He contended that the sister of

the respondent had also filed a case as per Ex.D2.

CRL.RP No. 1300 of 2018

3. Based on the oral and documentary evidence, the

trial Court held that the issuance of cheque was admitted by

the petitioner. It held that the petitioner was not able to

establish his defense that he had issued the cheque in question

to a person named Srinivasa Gowda and not to the respondent.

It held that the petitioner was unable to rebut the presumption

under section 139 of NI Act, 1881 and therefore, convicted him

for the offence and sentenced him to undergo simple

imprisonment for one year and to pay a fine of Rs.8,10,000/-.

Being aggrieved by the said judgment, the petitioner filed

Crl.A.No.52/2017, which too was dismissed.

4. Being aggrieved by the same, the present revision

petition is filed.

5. Learned counsel for the petitioner submitted that

the respondent did not prove that he had the financial ability to

advance a hand loan of a sum of Rs.8,00,000/-. He contended

that the sister of Srinivasa Gowda had filed a proceeding before

the Court at Hosur against the wife of the petitioner as per

Ex.D2 for an offence punishable under Section 138 of NI Act,

CRL.RP No. 1300 of 2018

1881. He therefore submitted that the said Srinivasa Gowda

was the person who was misusing the cheques lying with him

and the respondent herein was set up by the said Srinivasa

Gowda. The learned counsel submitted that the trial Court

could not have sentenced the petitioner to undergo simple

imprisonment for one year and also order fine of Rs.8,10,000/-.

6. Per contra, learned counsel for the respondent

submitted that the petitioner did not mention his defense when

he issued the reply at Ex.P7 to the notice of demand at Ex.P4.

He submitted that the petitioner did not make any efforts to

secure the said Srinivasa Gowda to depose before the Court.

Even otherwise, he submitted that the respondent had drawn a

sum of Rs.8,00,000/- from his account on 10.10.2011, which is

evident from Ex.P9 and the said amount was paid to the

petitioner. Therefore, he contended that the financial ability of

the respondent to advance hand loan of Rs.8,00,000/- cannot

be disputed.

7. The fact that the respondent was in possession of

sufficient funds is evident from Ex.P9, which also shows that he

CRL.RP No. 1300 of 2018

had withdrawn a sum of Rs.8,00,000/- on 10.10.2011. The

cheque in question was dated 25.06.2012 and the signature

thereon is undisputedly the signature of the petitioner. Though

the petitioner claimed that this cheque was given to Srinivasa

Gowda, he made no effort to secure his presence before the

Court. Even otherwise, the petitioner did not take any such

contention in the reply to the notice of demand issued by the

respondent. Therefore, the trial Court was justified in drawing

a presumption under Section 139 of NI Act, 1881. The

petitioner was running a factory and as per his own evidence,

he was purchasing materials worth Rs.12-13 Lakhs every

month. Therefore, it is probable that the petitioner had raised a

loan from the respondent and had passed on the cheque in

question towards repayment of the said loan. Hence, the

judgment of conviction passed by the trial Court and upheld by

the Appellate Court do not warrant interference by this Court.

8. However, the trial Court had sentenced the

petitioner to undergo simple imprisonment of one year and also

to pay a fine of Rs.8,10,000/-, which was wholly irrational

having regard to the punishment prescribed under Section 138

CRL.RP No. 1300 of 2018

of NI Act, 1881, which could extend up to two years or with fine

that could extend up twice the cheque amount or with both.

Having regard to the fact that a proceeding under Section 138

of NI Act, 1881 is quasi-criminal in nature intended to recover

the amount payable under the cheque and the purpose of the

punishment by way of imprisonment is to enforce the payment.

Thus, the trial Court ought to have awarded fine and in default

of payment of fine, it must have ordered the petitioner to

undergo simple imprisonment.

9. In view of the above, this revision petition is

allowed-in-part.

The impugned judgment of conviction dated 14.11.2017

passed by the Principal Civil Judge and JMFC, Kolar in

C.C.No.151/2013, which was upheld by the I Additional

Sessions Judge, Kolar in Crl.A.No.52/2017 is confirmed.

However, the order of sentence passed by the trial Court is

modified and the petitioner is directed to pay a fine of

Rs.8,10,000/- and in default, he shall undergo simple

imprisonment for a period of one year. Out of the fine amount,

CRL.RP No. 1300 of 2018

a sum of Rs.8,05,000/- shall be paid to the respondent as

compensation under Section 357(3) of Cr.P.C. The balance

amount of Rs.5,000/- shall be appropriated as cost to the

State.

The petitioner is granted two months time to pay the fine

amount, failing which, the respondent is entitled to execute the

order of default sentence.

Sd/-

JUDGE

NR/-