Sri N M Raffi vs Sri V V Kumar
2023 Latest Caselaw 713 Kant

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                                                 CRL.RP No. 1338 of 2022




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 11TH DAY OF JANUARY, 2023

                                      BEFORE
                      THE HON'BLE MR JUSTICE R. NATARAJ
               CRIMINAL REVISION PETITION NO.1338 OF 2022
            BETWEEN:

            SRI. N.M RAFFI
            S/O NAWAB MOHAMMED SADIQ,
            AGED ABOUT 49 YEARS,
            BUSINESS / CONTRACTOR,
            R/AT NO.299/3, THIRD FLOOR,
            ZEENATH RESIDENCY,
            HMT LAYOUT, R.T. NAGAR,
            BENGALURU-560032.
                                                            ...PETITIONER
            (BY SRI. ARNAV A. BAGALWADI, ADVOCATE)

            AND:

            SRI. V.V. KUMAR
            S/O LATE V.VENKATASWAMY
            AGED ABOUT 63 YEARS,
            R/AT NO.75, 12TH CROSS
            LAKSHMAIAH BLOCK,
            GANGANAGAR, HAF POST,
Digitally   GANGANAGAR,
signed by   BANGALORE-560024.
SUMA
Location:                                                  ...RESPONDENT
HIGH        (BY SRI. MURALI.M, ADVOCATE)
COURT OF
KARNATAKA
                  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/ORDER OF DISMISSAL OF
            IN CRL.A.NO.487/2022 IN ORDER DATED 16.09.2022 PASSED BY
            THE HONBLE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
            (CCH-64) AND ORDER OF CONVICTION IN C.C.NO.8625/2021
            PASSED BY XVIII ACMM AT BENGALUR CITY ORDER DATED
            01.04.2022 AND BY ALLOWING THE ABOVE REVISION PETITION AN
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                                      CRL.RP No. 1338 of 2022




ACQUITTING  THE   PETITIONER,       UNDER   THE    FACTS    AND
CIRCUMSTANCES OF THE CASE.

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

                            ORDER

This revision petition is filed assailing the judgment of

conviction dated 01.04.2022 passed by the XVIII Addl. Chief

Metropolitan Magistrate, Bengaluru City in C.C.No.8625/2021

for the offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 and the consequent sentence ordering

the petitioner to pay a fine of Rs.3,55,000/-, failing which, he

was directed to undergo simple imprisonment for a period of six

months. The petitioner has also assailed the correctness of the

judgment dated 16.09.2022 passed by the LXIII Addl. City Civil

and Sessions Judge, Bengaluru (CCH-64) in Crl.A.No.487/2022.

2. The records disclose that the petitioner and the

respondent were known to each other as they were contractors

executing civil work in the Bruhat Bengaluru Mahanagara

Palike. The respondent claimed that the petitioner approached

him for financial assistance of a sum of Rs.5,00,000/- for his

business. The respondent transferred a sum of Rs.5,00,000/-

CRL.RP No. 1338 of 2022

through his bank in March, 2020. Though the petitioner had

promised to repay it within four to five months, he failed to

abide by his promise. Later, the petitioner paid a sum of

Rs.2,00,000/- and passed on a cheque bearing No.747232

dated 18.01.2021 for a sum of Rs.3,00,000/-. The said cheque

was dishonoured due to insufficient funds when presented by

the respondent. Consequently, the respondent issued a notice

of demand which was replied untenably. The respondent

therefore, issued a rejoinder to the reply. Following this, the

respondent launched prosecution of the petitioner for the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881. The sworn statement of the

respondent was recorded and process was issued to the

petitioner. The petitioner appeared and pleaded not guilty and

claimed to be tried. The evidence of the respondent was

recorded and Exs.P1 to P9 were marked. However, since the

petitioner failed to cross-examine the respondent, his cross-

examination was taken as 'nil' and the statement of the

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

petitioner denied the incriminating evidence against him and

CRL.RP No. 1338 of 2022

offered to lead his evidence. However, thereafter despite grant

of sufficient opportunities, the petitioner failed to lead his

defense evidence. Therefore, the case was taken up for

arguments. The petitioner did not address his arguments and

hence, the Trial Court was constrained to dispose of the case

on merits based on the available evidence and convicted the

petitioner for the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 and sentenced him to pay a

fine of Rs.3,55,000/-, failing which, he was directed to undergo

simple imprisonment for a period of six months. Being

aggrieved by the same, the petitioner filed Crl.A.No.487/2022,

which was also dismissed in terms of the judgment dated

16.09.2022.

3. Being aggrieved by the aforesaid judgments of the

Trial Court and the Appellate Court, the petitioner has filed this

revision petition.

4. The learned counsel for the petitioner submitted

that it was incumbent upon the Trial Court to have secured the

CRL.RP No. 1338 of 2022

person of the petitioner to conduct the trial in accordance with

law. He submitted that there was no adequate opportunity for

the petitioner to lead his evidence and also to cross-examine

the respondent.

5. Per contra, the learned counsel for the respondent

submitted that the order sheet discloses the number of

adjournments sought for by the petitioner to cross-examine

PW.1 and also his failure to lead defense evidence even after

his statement under Section 313 of Cr.P.C. was recorded. He

therefore, submitted that the Trial Court had no other option

than to dispose off the case on merits. Notwithstanding this, he

contended that the amount of Rs.5,00,000/- was transferred by

the respondent through his bank and that there was proof of

payment of a sum of Rs.5,00,000/- to the petitioner. He

contended that the respondent had claimed that the petitioner

had paid a sum of Rs.2,00,000/- by cash and the balance was

Rs.3,00,000/- and that the petitioner had passed on a cheque

for the said amount. He therefore, contended that there was

no dispute regarding the transaction and hence, no purpose

CRL.RP No. 1338 of 2022

would be served in again remitting the case to conduct a re-

trial.

6. I have considered the submissions made by the

learned counsel for the petitioner as well as the learned counsel

for the respondent.

7. It is seen from the materials placed before me by

the learned counsel for the petitioner as well as the learned

counsel for the respondent that the receipt of a sum of

Rs.5,00,000/- by the petitioner from the respondent is not

seriously disputed. There is no material placed on record to

establish that the petitioner had repaid a sum of Rs.5,00,000/-

to the respondent. Therefore, it is probable that the cheque in

question was issued by the petitioner to the respondent

towards discharge of a sum of Rs.3,00,000/-, which was the

balance loan amount. The Trial Court has considered the

conduct of the petitioner in not conducting the case diligently

despite granting sufficient opportunities. The contention that

the Trial Court ought to have secured the accused through its

process and that without doing so, the conclusion of the trial

CRL.RP No. 1338 of 2022

was illegal, deserves to be rejected on more grounds than one.

The petitioner having abstained from the judicial process,

cannot take advantage from it. Even otherwise, a proceeding

for prosecution for the offence under Section 138 of the

Negotiable Instruments Act, 1881 is quasi criminal in nature

and the Courts are bound to follow a summary procedure at the

trial. Therefore, this contention of the petitioner is outrightly

rejected. In that view of the matter, the judgment of conviction

passed by the Trial Court and upheld by the Appellate Court

does not warrant interference by this Court.

8. However, in so far as the sentence ordered by the

Trial Court, the cheque in question was handed over by the

petitioner to the respondent on 18.01.2021. The Trial Court had

disposed off the case by judgment dated 01.04.2022, while the

Appellate Court had disposed off the appeal in terms of its

judgment dated 16.09.2022. Therefore, this Court finds that

there was no justification for the Trial Court to sentence the

petitioner to pay a fine of Rs.3,55,000/-. In that view of the

matter, it is appropriate that the order of sentence is modified

and the petitioner is sentenced to pay fine of a sum of

CRL.RP No. 1338 of 2022

Rs.3,30,000/-, failing which, he shall undergo simple

imprisonment for a period of six months.

9. Hence, the following

ORDER

i) This revision petition is allowed in part.

ii) The judgment of conviction dated 01.04.2022

passed by the XVIII Addl. Chief Metropolitan

Magistrate, Bengaluru City in C.C.No.8625/2021

for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881, which

was upheld by the LXIII Addl. City Civil and

Sessions Judge, Bengaluru (CCH - 64) by its

judgment dated 16.09.2022, is upheld.

iii) However, the order of sentence passed by the

Trial Court in C.C.No.8625/2021 is modified and

the petitioner is sentenced to pay fine of

Rs.3,30,000/-, out of which, a sum of

Rs.3,25,000/- shall be paid to the respondent as

compensation under Section 357(1)(b) of the

CRL.RP No. 1338 of 2022

Cr.P.C. and a sum of Rs.5,000/- shall be

appropriated towards the expenses of the State.

iv) Since, the learned counsel for petitioner submits

that the petitioner has deposited a sum of

Rs.3,55,000/- before the Trial Court, the balance

sum of Rs.25,000/- shall be released to the

petitioner.

Sd/-

JUDGE

PMR