Smt Gowramma vs Smt C Geetha
2023 Latest Caselaw 619 Kant

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                                                  CRL.RP No. 1384 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. 1384 OF 2018
            BETWEEN:

            SMT. GOWRAMMA
            W/O CHANDRAPPA,
            D/O DYAVAMMA,
            AGED ABOUT 48 YEARS,
            R/AT DODDANAGAMANGALA VILLAGE,
            ELECTRICITY CITY POST,
            BEGUR HOBLI, BENGALURU SOUTH,
            BENGALURU-560100.

                                                             ...PETITIONER
            (BY SRI. G. JAIRAJ, ADVOCATE)

            AND:

            SMT. C. GEETHA
            W/O LATE APPAJI REDDY,
            AGED ABOUT 40 YEARS,
            RESIDING AT NO.24/36,
            DODDANAGAMANGALA VILLAGE,
Digitally   ELECTRICITY CITY POST,
signed by
SUMA        BEGUR HOBLI, BENGALURU SOUTH,
Location:   BENGALURU-560100.
HIGH
COURT OF                                                    ...RESPONDENT
KARNATAKA
            (BY SRI. A. CHANDRA CHUD, ADVOCATE)

                   THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
            SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
            PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY
            THE LEARNED XX A.C.M.M IN C.C.NO.8358/2013 BY ITS JUDGMENT
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                                        CRL.RP No. 1384 of 2018




DATED 04.04.2016 AND CONFIRMED BY JUDGMENT PASSED BY THE
HON'BLE LXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
(CCH-69), BANGLAORE CITY IN CRIMINAL APPEAL NO.521/2016
DATED 28.11.2018 AND ACQUIT THE PETITIONER BY ALLOWING THE
PETITION FILED BY THE PETITIONER.

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

                               ORDER

The petitioner has challenged the judgment of conviction

dated 04.04.2016 passed by the XX Addl. Chief Metropolitan

Magistrate, Bangalore City (henceforth referred to as 'Trial

Court' for short) in C.C.No.8358/2013 for the offence

punishable under Section 138 of the Negotiable Instruments

Act, 1881 and consequent sentence to pay a fine of

Rs.2,10,000/- and in default, to undergo simple imprisonment

for a period of three months. The petitioner has also called in

question the judgment dated 28.11.2018 passed by the LXVIII

Addl. City Civil and Sessions Judge, Bengaluru City (CCH - 69)

(henceforth referred to as 'Appellate Court' for short) in

Crl.A.No.521/2016 by which, the judgment of conviction passed

by the Trial Court was upheld.

CRL.RP No. 1384 of 2018

2. The private complaint filed by the respondent

discloses that she and the petitioner were friends for several

years. The petitioner had allegedly raised a hand loan of

Rs.1,00,000/- from the respondent and in discharge of the said

amount, she had passed on a cheque bearing No.157139 dated

19.01.2013 for a sum of Rs.1,00,000/-. This cheque was

dishonoured due to insufficient funds on 22.02.2013. The

respondent caused a notice of demand on 30.01.2013, which

was served on the petitioner on 04.02.2013. The petitioner

replied to the notice claiming that she had raised a hand loan of

Rs.1,00,000/- and that she had given the cheque to be retained

as security. She claimed that she had repaid the sum of

Rs.1,00,000/- along with interest, but the cheque was not

returned. The respondent therefore, lodged a complaint against

the petitioner alleging an offence punishable under Section 138

of the Negotiable Instruments Act, 1881. The sworn statement

of the respondent was recorded and the private complaint was

registered as C.C.No.8358/2014. The process issued in the case

was served on the petitioner and she pleaded not guilty and

prayed that she may be tried. The respondent was examined as

CRL.RP No. 1384 of 2018

PW.1 and she marked Exs.P1 to P7. The statement of the

petitioner was recorded under Section 313 of Cr.P.C. The

petitioner denied the incriminating evidence against her and

offered to lead her evidence in defense. Consequently, she was

examined as DW.1 and she marked Exs.D1 and D2.

3. Based on the oral and documentary evidence, the

Trial Court held that the petitioner had replied to the notice of

demand claiming that she had issued the cheque in question as

security for the loan of Rs.1,00,000/- raised from the

respondent and that her defense was that she had already

repaid a sum of Rs.1,00,000/-, but the respondent failed to

return the cheque and later misused it to launch a criminal

prosecution. The Trial Court therefore, held that the petitioner

had admitted that the cheque in question was drawn from her

account and that the signature found thereon belonged to her.

The Trial Court noticed that the petitioner had raised a totally

different case in her defense evidence and therefore, held that

the petitioner was attempting to avoid the liability. It

therefore, held that the cheque in question was issued by the

petitioner towards discharge of a lawful debt and therefore,

CRL.RP No. 1384 of 2018

convicted the petitioner under Section 138 of the Negotiable

Instruments Act, 1881 and sentenced her to pay a fine of

Rs.2,10,000/- failing which, she was ordered to undergo simple

imprisonment for a period of three months. Being aggrieved by

the same, the petitioner filed Crl.A.No.521/2016 before the

Appellate Court, which was also dismissed.

4. Being aggrieved by the aforesaid judgments of the

Trial Court and the Appellate Court, the present revision

petition is filed.

5. The learned counsel for the petitioner submitted

that both the Courts failed to consider the evidence of PW.1,

which indicated that there was no liability of the petitioner to

the respondent. He contended that the Trial Court had

unreasonably sentenced the petitioner to pay a fine of more

than twice the cheque amount. He further contended that the

evidence of PW.1 disclosed that there was no transaction

between the petitioner and the respondent and that the

transaction was between the petitioner and a person named

Marigowda, who was introduced by the petitioner to the

CRL.RP No. 1384 of 2018

respondent. He contended that PW.1 categorically stated that

the cheque in question was given by the petitioner to

Marigowda. He submitted that the respondent admitted that

the cheque in question was filled up by her. He submitted that

Ex.D1 was an agreement entered into between the respondent

and Marigowda and the same, when confronted to PW.1 was

admitted by her. He submitted that in Ex.P1, the cheque in

question was given by the petitioner as security for the dues of

Marigowda. He therefore, contended that the cheque in

question was not given by the petitioner towards discharge of

any debt.

6. The learned counsel for the respondent, on the

other hand, submitted that even if Ex.D1 is taken into

consideration, the petitioner had accepted to clear the liability

of Marigowda and therefore, the petitioner was liable to ensure

that the cheque in question was duly honoured. He submitted

that the petitioner had taken mutually destructive defenses. In

the reply to the notice of demand issued by the petitioner, she

admitted that she had received a hand loan of Rs.1,00,000/-

from the respondent and had passed on the cheque in question

CRL.RP No. 1384 of 2018

as security and that the respondent had failed to return the

cheque even after clearing the liability. However, in her defense

evidence, she claimed that the cheque in question was given as

guarantee for the repayment of the loan by Marigowda to the

respondent. He therefore, contended that the petitioner had

taken different defenses at different point of time. Nonetheless,

she claimed that the petitioner admitted her signature on the

cheque in question and therefore, there was a presumption that

the cheque in question was issued towards discharge of a

lawful. He also contended that the petitioner did not examine

the person named Marigowda and hence, the defense of the

petitioner was not probable and acceptable and that she failed

to rebut the presumption under Section 139 of the Negotiable

Instruments Act, 1881. In so far as the aspect of imposition of

fine of Rs.2,10,000/-, the learned counsel for the respondent

did not dispute the position of law that the Court was only

empowered to sentence the petitioner to pay fine to the extent

of double the cheque amount.

CRL.RP No. 1384 of 2018

7. I have considered the submissions made by the

learned counsel for the petitioner as well as the learned counsel

for the respondent.

8. The records reveal that the petitioner had replied to

the notice of demand issued by the respondent, where she

admitted that she had raised a loan of Rs.1,00,000/- and that

she had given away the cheque in question as security. She

also claimed that she had repaid the loan but the respondent

had failed to return the cheque. Surprisingly, she took a

different defense where she claimed that the cheque in

question was given as guarantee to assure the repayment of

the loan by Marigowda to the respondent. Therefore, as rightly

contended by the learned counsel for the respondent, the

signature on the cheque was not disputed and therefore, a

presumption had to be drawn that the cheque was drawn

towards discharge of a lawful debt. Even if we assume that the

cheque in question was given as guarantee to assure the

repayment of loan by Marigowda to the respondent, the

petitioner had accepted the liability to clear the outstanding of

Marigowda.

CRL.RP No. 1384 of 2018

9. In that view of the matter, the Trial Court and the

Appellate Court have rightly held that the petitioner was unable

to rebut the presumption attached to the cheque in question

and that she was unable to demonstrate her defense.

Consequently, the judgment of conviction passed by the Trial

Court is unexceptionable and there are no material

irregularities in the proceedings of the Trial Court warranting

interference in a revision petition filed under Section 397 of

Cr.P.C. However, the Trial Court ought not to have

sentenced the petitioner to pay a fine of a sum of

Rs.2,10,000/-, which was more than double the cheque

amount.

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

allowed in part. The judgment of conviction dated 04.04.2016

passed by the XX Addl. Chief Metropolitan Magistrate,

Bangalore City in C.C.No.8358/2013 for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881 is

upheld. However, the order of sentence passed by the Trial

Court is modified and is reduced from Rs.2,10,000/- to a sum

of Rs.2,00,000/-, out of which, a sum of Rs.1,80,000/- is

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CRL.RP No. 1384 of 2018

ordered to be paid to the respondent as compensation and a

sum of Rs.20,000/- shall be appropriated to the State as cost.

11. It is made clear that in default of payment of fine as

aforesaid, the petitioner shall undergo simple imprisonment for

a period of six months.

12. Any amount in deposit before this Court or the Trial

Court shall be released in favour of the respondent in

accordance with law.

Sd/-

JUDGE

PMR