Karnataka High Court
Mr N Hemanth Kumar Gowda vs Mrs Y Janaki Devi on 10 January, 2023
Bench: R. Nataraj
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CRL.RP No. 976 of 2016
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. 976 OF 2016
BETWEEN:
MR. N.HEMANTH KUMAR GOWDA
AGED ABOUT 34 YEARS,
S/O. SRI. NARAYAN GOWDA,
RESIDING AT NO.6, 6TH CROSS,
HANUMAGIRI LAYOUT, PADMANABHANAGAR,
BANGALORE-560061.
...PETITIONER
(BY SRI. AMBAJI RAO NAJARE, ADVOCATE)
AND:
MRS. Y.JANAKI DEVI
AGED ABOUT 53 YEARS,
D/O. LATE YERABANDI VENKATESHWARA RAO,
R/AT NO.9, CHENNAMMANA TANK BED ROAD,
VIDYAPEETA CIRCLE, SUNKENAHALLI VILLAGE,
T.R NAGAR, BANGALORE-560094.
...RESPONDENT
(BY SRI. H.N BASAVARAJ, ADVOCATE)
Digitally
signed by
SUMA THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
Location:
HIGH COURT SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
OF
KARNATAKA
PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 28.04.2014
PASSED BY THE XVII A.C.M.M., BANGALORE IN C.C.NO.9277/2011
AND ORDER DATED 21.07.2016 PASSED BY THE LVIII ADDL. CITY
CIVIL AND S.J. (CCH-59), BENGALURU CITY IN CRL.A.NO.505/2014
THEREBY ACQUIT THE ACCUSED AND ETC.,
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CRL.RP No. 976 of 2016
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the judgment of conviction
and the order of sentence passed by XVII Additional Chief
Metropolitan Magistrate, Bangalore dated 28.04.2014 in
CC.No.9277/2011 convicting him for an offence punishable
under Section 138 of Negotiable Instruments Act 1881 and
sentencing him to pay a fine of Rs.32,10,000/-. The petitioner
is also aggrieved by the judgment of the Appellate Court in
Crl.A.No.505/2014 by which the judgment of conviction passed
by the trial Court was confirmed.
2. The short facts that led to the filing of a complaint
alleging an offence punishable under Section 138 of Negotiable
Instruments Act 1881, are that, the petitioner had agreed to
purchase a site bearing No.8 from the respondent and had
entered into an agreement to sell dated 09.11.2007 for a total
sale consideration of Rs.55,00,000/-. Out of the agreed sale
consideration, the petitioner had paid a sum of Rs.2,00,000/-
and the remaining Rs.53,00,000/- was payable within three
months from the date of agreement. In the meanwhile, the
CRL.RP No. 976 of 2016
petitioner had also entered into an agreement to purchase the
adjoining site No.9 from the respondent. The sale in respect of
site No.9 was to be concluded only after execution of a sale
deed and the payment of balance sale of consideration in
respect of Site No.8. A sale deed dated 17.04.2008 was
registered by the respondent in favour of the petitioner
concerning site No.8 where the total sale consideration was
shown as Rs.23,38,000/- of which a sum of Rs.21,28,000/- was
shown to have been paid by cash. The respondent claimed that
the petitioner had in fact passed on two cheques for
Rs.12,00,000/- and Rs.20,00,000/- respectively, towards
payment of the consideration of Rs.55,00,000/- and had paid a
sum of Rs.11,00,000/- by cash. The said cheques on
presentation by the respondent were dishonored due to
insufficient funds. The respondent caused a notice of demand
on 23.06.2010, which was not replied by the petitioner and the
petitioner did not comply with the demand. The respondent was
therefore compelled to initiate criminal prosecution against the
petitioner for the offence punishable under Section 138 of
Negotiable Instruments Act 1881. The summons in the
CRL.RP No. 976 of 2016
proceedings were served on his plea was recorded where he
pleaded not guilty and prayed that he be tried. Based on this,
the trial Court recorded the evidence of respondent as PW-1
and marked exhibits as P-1 to P-11. The statement of the
petitioner was recorded under Section 313 of CR.PC. The
petitioner led defence evidence as DW-1 and marked exhibits
as D-1 to D-9. Based on the oral and documentary evidence,
the trial Court held that the petitioner had passed on the two
cheques towards the payment of balance sale consideration as
agreed under the agreement of sale dated 09.11.2007. It also
held that by the dishonor of the cheques due to insufficient
funds, the petitioner had committed an offence punishable
under Section 138 of Negotiable Instruments Act 1881 and thus
convicted him for the offence and sentenced him to pay a fine
of Rs.32,10,000/- and in default to undergo simple
imprisonment for a period of six months.
3. Being aggrieved by the said judgment of conviction
and sentence, the petitioner filed an appeal before the Sessions
Court which was dismissed following which the present revision
petition is filed.
CRL.RP No. 976 of 2016
4. Learned counsel for the petitioner submits that the
petitioner had already paid the consideration payable in respect
of site No.8 and therefore, there was no occasion for the
petitioner to hand over the two cheques towards consideration
under the sale deed. He submitted that these two cheques
were handed over to the respondent towards sale consideration
in respect of site No.9 and therefore, these cheques were not
enforceable until the sale transaction in respect of site No.9
was concluded.
5. The learned counsel for the respondent is absent
and therefore this Court did not have the benefit of his
submissions, be that as it may, the records of the trial Court
disclose that the sale agreement was executed by the
respondent in favour of the petitioner in respect of site No.8 for
a total sale consideration of Rs.55,00,000/- of which a sum of
Rs.2,00,000/- was paid in terms of a cheque dated 09.11.2007
and the balance Rs.53,00,000/- was to be paid within a period
of three months.
CRL.RP No. 976 of 2016
6. Surprisingly, a sale deed dated 17.04.2008 was
executed in favour of the petitioner, where the total sale
consideration was mentioned as Rs.23,38,000/- of which
Rs.21,38,000/- was shown to be paid through cash to the
respondent. Therefore, it is clear that in order to avoid payment
of ad-valorem stamp duty, the consideration was shown as
Rs.23,38,000/- as against Rs.55,00,000/-. The petitioner could
not have obliviously mentioned about the two cheques in the
sale deed dated 17.04.2018. Therefore, claim of the respondent
that the cheques in question were handed over towards the
payment of the balance sale consideration payable under the
agreement of sale dated 09.11.2007 appears probable. It is
therefore clear that the petitioner had passed on the cheques
for payment of the balance sale consideration and were
therefore issued towards discharge of a lawful debt and the
dishonor of the cheques did result in an offence punishable
under Section 138 of Negotiable Instruments Act 1881.
7. The trial Court as well as the appellate Court have
rightly considered the evidence on record and have rightly held
that the petitioner had committed the offence. The trial Court
CRL.RP No. 976 of 2016
was justified in sentencing the petitioner to pay a fine of
Rs.32,10,000/-. There is no material or procedural irregularity
in the trial of the offence and there is no error in the
appreciation of the evidence on record or the application of the
law to the facts and circumstances of the case, warranting
interference by this Court in this revision petition under Section
397 of CR.P.C.
Hence, this revision petition lacks merit and the same is
hereby dismissed. Any amount in deposit is ordered to be
released in favour of the respondent. Registry is directed to
forthwith return the records to the trial Court.
Sd/-
JUDGE
PK
