Karnataka High Court
Narayanaswamy vs D C Raja Reddy on 11 January, 2023
Bench: R. Nataraj
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CRL.RP No. 107 of 2018
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. 107 OF 2018
BETWEEN:
Digitally NARAYANASWAMY
signed by S/O. NARAYANA
SUMA
AGED ABOUT 43 YEARS,
Location:
HIGH R/O. HULIMAVU VILLAGE
COURT OF 3RD CROSS, BEHIND AMBEDKAR SAMUDAYA
KARNATAKA
BHAVANA, BEGUR HOBLI
BANNERGHATTA ROAD,
BENGALURU - 560 076.
...PETITIONER
(BY SRI. VIJAYKUMAR PRAKASH, ADVOCATE)
AND:
D. C. RAJA REDDY
S/O. CHINNAPPA
AGED ABOUT 49 YEARS,
R/AT NO.373, 1ST CROSS
VENKATESHWARA LAYOUT,
BTM 1ST STAGE,
MADIWAL, BENGALURU - 560 068.
...RESPONDENT
(BY SRI.K.SOMASHEKHAR REDDY, ADVOCATE)
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CRL.RP No. 107 of 2018
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 06.06.2016, PASSED BY
THE XXII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BANGALORE IN C.C.NO.3400/2015 AND CONFIRMED BY THE
ORDER DATED:17.07.2017 PASSED BY THE LXII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AT BENGALURU IN
CRL.A.NO.793/2016, WHEREBY, THE COURTS BELOW HAVE
SENTENCED THE PETITIONER HEREIN TO PAY A FINE OF
RS.2,000/- AND IN DEFAULT TO UNDERGO SIMPLE
IMPRISONMENT FOR TWO MONTHS, AND FURTHER, THE
PETITIONER IS DIRECTED TO PAY AS COMPENSATION A SUM
OF RS.8,00,000/- AND IN DEFAULT TO UNDERGO SIMPLE
IMPRISONMENT FOR ONE YEAR, AND THE PETITIONER BE
ACQUITTED AND ETC.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the concurrent judgments
passed in CC No.3400/2015 dated 6-6-2016 by the learned
XXII Additional CMM Bengaluru City which was confirmed in
Crl.A.No. 793/2016 dated 17-07-2017 by the learned LXII
Additional City Civil and Sessions Judge, Bengaluru, convicting
him for the offence punishable under Section 138 of Negotiable
Instruments Act and sentencing him to pay a fine of
Rs.8,00,000/-, failing which, it ordered the petitioner to under
go simple imprisonment for a period of one year.
CRL.RP No. 107 of 2018
2. The complaint lodged before the Trial Court discloses
that the petitioner and respondent were known to each other
and that the petitioner requested the respondent to provide
financial assistance to the tune of Rs.4,00,000/- during the
July 2014. The respondent is stated to have arranged the said
money and paid it to the petitioner on 28-7-2014. Later, the
petitioner passed on two post dated cheques for Rs.2,00,000/-
each towards repayment of the loan. However, the said
cheques were dis-honoured due to insufficient funds when
presented by the respondent. A notice of demand was issued
on 26-12-2014 which was not received though an intimation
was delivered. The respondent therefore, initiated prosecution
for the offence punishable under Section 138 of Negotiable
Instruments Act. The petitioner appeared pursuant to process
served on him and pleaded not guilty and claimed to be tried.
The respondent was examined as PW1 and he marked Exs.P1
to P8. The statement of the petitioner was recorded under
Section 313 of Cr.P.C. The petitioner was examined as DW1.
Based on the oral and documentary evidence, the Trial court
held that the cheques in question were issued by the petitioner
CRL.RP No. 107 of 2018
herein towards the discharge of lawful debt and that due to
dis-honour of said cheques, due to insufficient funds in the
account of the petitioner, it held that the petitioner had
committed an offence punishable under Section 138 of
Negotiable Instruments Act and thus, convicted him for the said
offence and sentenced him to pay a fine of Rs.8,00,000/-,
failing which, he was ordered to under go simple imprisonment
for one year. Being aggrieved by the said judgment of
conviction and order of sentence, the petitioner filed Criminal
Appeal 793/2016 before the Session Court which was
dismissed. Feeling aggrieved by the same, present revision
petition is filed.
3. Learned counsel for petitioner submitted that the Trial
Court did not consider the evidence of the petitioner which
indicated that there was no loan transaction between the
petitioner and respondent and cheques in questions were
issued in respect of a different transaction while availing loan of
Rs.40,000/- from the brother of the petitioner and that the
respondent had colluded with the brother of the petitioner in
mis-using the cheques.
CRL.RP No. 107 of 2018
4. Per contra, the learned counsel for the respondent
submitted that though the petitioner raised an improbable
defence, yet did nothing to establish the same in accordance
with law. He did not summon his brother to establish the said
defence, and therefore the defence setup by the petitioner was
moonshine and improbable.
5. I have considered the submission made by learned
counsel for the petitioner as well as the learned counsel for
respondent.
6. The evidence on record discloses that the petitioner
and the respondent were known to each other. The fact that
the cheques in question were drawn from the account of the
petitioner is not in dispute. It is also not in dispute that the
signatures found on two cheques, belonged to the petitioner.
Though the petitioner raised a defence that those cheques
were given to his brother while availing loan of Rs.40,000/-
from him and those two cheques were mis-used by the
respondent, there is no acceptable evidence in that regard.
The defence of the petitioner is not established in accordance
CRL.RP No. 107 of 2018
with law. The petitioner has failed to rebut the presumption
under Section 138 of Negotiable Instruments Act. Even
otherwise, there is no procedural error in the trail of the case
and no palpable error in the appreciation of evidence or the
application of law to the facts and circumstances of the case,
warranting interference.
7. In that view of the matter, the Trial Court as well as
Appellate Court were justified in convicting the petitioner for
the offence punishable under Section 138 of N.I. Act.
8. However, in so far as the order of sentence passed by
the Trial Court, the Trial Court has imposed the fine of
Rs.8,00,000/- being double the cheque amount without
recording any reasons there for. Having regard to the facts
and circumstances of the case, it is appropriate that the
impugned order of sentence passed by the Trial Court is
modified. Hence, the following:
ORDER
The revision petition is allowed in part.
CRL.RP No. 107 of 2018
The judgment of conviction passed by the Trial Court in
CC No.3400/2015 convicting the petitioner for the offences
punishable under Section 138 of Negotiable Instruments Act, is
upheld. However, the order of sentence passed by the Trial
Court is modified and the petitioner is directed to pay a fine of
Rs.6,50,000/-, out of which, Rs.6,40,000/- shall be paid to the
respondent as compensation and sum of Rs.10,000/- shall be
appropriated as cost to the State. In default of payment of fine,
petitioner shall undergo simple imprisonment for a period of
one year.
The fine amount if not already deposited shall be
deposited before the Trial Court within a period of two months
from today. Any amount in deposit before the Trial/Appellate
Court shall be released to the respondent.
Sd/-
JUDGE
tsn*
