Karnataka High Court
V Srinivas vs V Krishnamurthy on 8 April, 2024
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CRL.RP No. 127 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL REVISION PETITION NO.127 OF 2015
BETWEEN:
V. SRINIVAS S/O. LATE VENKATARAMAIAH,
AGED ABOUT 35 YEARS,
NO.14/1, 20TH MAIN,
J.C.NAGAR, KURUBARAHALLI,
BENGALURU-560 086.
...PETITIONER
(BY SRI. S.G. BHAGAVAN, ADVOCATE)
AND:
V. KRISHNAMURTHY S/O V.V.CHALAPATHI,
AGED ABOUT 64 YEARS,
C/O.105/6, J.M.ROAD,
BENGALURU-560 002.
...RESPONDENT
(BY SRI G.V. DAYANANDA, ADVOCATE)
Digitally signed by THIS CRIMINAL REVISION PETITION IS FILED UNDER
SAROJA HANGARAKI
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING
Location: HIGH
COURT OF TO SET ASIDE THE JUDGMENT AND ORDER DATED
KARNATAKA
22.01.2015 PASSED BY THE COURT OF THE PRESIDING
OFFICER, FAST TRACK COURT BANGALORE CITY IN
CRL.A.NO.963/2014 DISMISSING THE SAME AND
CONFIRMING THE JUDGMENT AND ORDER DATED 26.08.2014
PASSED BY THE COURT OF THE XVI-ADDITIONAL JUDGE,
COURTS OF SMALL CAUSES, BENGALURU (SCCH-14) IN
C.C.NO.29645/2005.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 05.04.2024 AND
COMING ON FOR PRONOUNCEMENT OF ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 127 of 2015
ORDER
This revision petition is filed by accused - appellant in
Crl.A. No.963/2014 challenging judgment passed in the said
case dated 22.01.2015 by the learned Additional City Civil and
Session Judge, Bengaluru and confirming judgment passed by
the XVI Addl. C.M.M. Court, Bengaluru in C.C. No.29645/2005
dated 26.08.2014 convicting and sentencing accused for the
offence punishable under Section 138 of Negotiable
Instruments Act (hereinafter referred to as, for short "N.I.
Act").
2. I refer the parties as per their rank before the trial
Court.
3. It is the case of respondent - complainant that
accused is very well known to him about five years prior to the
filing of complaint. Accused was a business man and dealing
with cheque discounting business with complainant. Accused
borrowed a sum of Rs.8,00,000/- from complainant and agreed
to repay the same with interest at the rate of 24% per annum.
The accused to discharge the said legally enforceable debt, had
issued three cheques bearing Nos.695594, 695595 and 695593
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for Rs.2,50,000/-, Rs.3,00,000/- and Rs.2,50,000/- dated
16.03.2005, 18.03.2005 and 20.03.2005 respectively.
4. The complainant presented all the said three
cheques through his banker for collection on 24.06.2005. All
the three cheques were returned without encashment, with an
endorsement of the banker dated 25.06.2005 that "funds
insufficient". Complainant issued notice to the accused -
revision petitioner, calling upon him to pay the amount of
cheque. Notice was served on the accused. However, he did not
repay the amount of cheque. On the contrary, he issued reply
notice with false contentions. Thereafter, complainant has filed
private complaint before the trial Court alleging that accused
has committed an offence punishable under Section 138 of N.I.
Act. The trial Court after following the prescribed procedures
under the provisions of Cr.P.C., and N.I. Act, issued process
against the accused - revision petitioner.
5. Revision petitioner had appeared before the trial
Court and pleaded not guilty. Complainant, to prove his case,
examined PWs.1 and 2 and got marked Exs.P1 to P15 and
closed his evidence. Thereafter, the learned trial Judge
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examined the accused under Section 313 of Cr.P.C. The
accused examined himself as DW1 and got marked Exs.D1 to
D8. The learned trial Judge after hearing both the parties and
appreciating evidence on record, vide judgment dated
26.08.2014, convicted the accused of the offence punishable
under Section 138 of N.I. Act and sentenced him to undergo
simple imprisonment for six months and pay fine of
Rs.16,00,000/-. In default of payment of fine, he shall undergo
simple imprisonment for 45 days. Out of the fine amount
Rs.15,00,000/- shall be paid to complainant towards
compensation.
6. Accused challenged the said judgment before the
Sessions Court in Crl.A. No.963/2014. The first appellate Court
after hearing both the parties and re-appreciating evidence on
record, vide impugned judgment dated 22.01.2015 dismissed
the appeal and confirmed judgment and sentence passed by
the trial Court. Challenging the same, accused preferred this
revision petition under Section 397 of Cr.P.C.
7. I have heard the arguments of learned counsel
appearing for both the side.
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8. Following point emerges for my determination:
"1. Whether the first appellate Judge is
justified in confirming judgment passed by
the trial Court in C.C. No.29645/2005
convicting accused for the offence
punishable under Section 138 of N.I. Act?
2. Whether sentence imposed against the
accused is proportionate and justifiable?"
9. It is settled principle of a law that revisional Court
has limited jurisdiction to interfere in the orders/judgments
challenged before it. It can only interfere in the same after
satisfying itself as to the correctness, legality or propriety of
any findings, sentence or order passed by the Courts
subordinate to it. Therefore, there is no need to re-appreciate
the evidence available on record.
10. Accused - revision petitioner has denied entire
transaction alleged in the complaint. Complainant himself was
examined as PW-1. In his evidence, he has reiterated case
made out in the complaint. His oral evidence is corroborated
by Exs.P1 to P10. On perusal of the entire cross-examination
and suggestions made to PW1 indicates that accused has
accepted the case of complainant. The suggestions made by
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the accused in the cross-examination of PW1 are in the
following line:
"All the three cheques of this case were
given to us on 23.02.2005 from the accused for
discount purpose. We have calculated the
interest on those 3 cheques at 24% from
23.02.2005, to the dates mentioned on them. ----
---"
"It is true that I have deducted the interest
amount on those cheques and the remaining
amount was given to the accused on that day on
all the 3 cheques. Accused was doing cheque
discount business with us since last 5 years.------
"
"It is false to suggest that these 3 cheques
given by this accused with blank status on that
day. Further, it is false to suggest that myself
filled up all the 3 cheques of this case.------"
"It is false to suggest that I have not at all
paid any amount under these 3 cheques to the
accused. It is false to suggest, that I agreed to
pay Rs.8 lakhs to the accused through these
cheques but failed the pay the same to the
accused".
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11. Accused appears to be under confusion. Once he
says that he has signed the blank cheques and in the cross-
examination of PW2, he denies his signature on the said
cheques and in the next breathe, he suggests that signatures
on the cheques are forged. The defense of the accused is not
consistent to disprove the proven contention of the
complainant.
12. It is the contention of the accused that he had kept
few blank cheques, four keys of his house and cash of Rs.600/-
in a bag and kept the bag in his two wheeler while going from
his house to Yeshwanthpura, Bengaluru. On the way, when he
reached near Varadaraja Petrol Pump, he found that the said
bag was missing and he lodged the complaint in this regard as
per Ex.D3 in subramanyanagara Police Station. In the
complaint, there is no reference regarding filling of the all the
columns of the cheque and signing on the cheque. It appears,
he lost about 17 cheques and has remembered the numbers of
said cheques, which is noted in Ex.D3. There is no explanation
for carrying the said cheque leaves with him. During the course
of the trial, a case was made out that his father had obtained a
loan from the Bank to purchase a car. His father use to transfer
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amount to his account in Canara Bank and thereafter, he uses
to issue cheque to pay EMI. He was always carrying the cheque
leaves with him. The said explanation is not probable. From
considering the entire evidence available on record, it appears,
it is a pre-meditated crime committed by the accused.
13. It is pertinent to note that when notice was issued
to the accused by the complainant about dishonour of three
cheques, he came to know that cheques lost by him were found
to complainant and has misused them. But the accused
immediately did not go to the police station to persuade his
complaint - Ex.D3. However, he did not take any action in this
regard, which he has admitted in his cross-examination. Even
he did not bother to know about loss of remaining fourteen
cheque leaves. There is no explanation in this regard. It also
indicate that just to evade re-payment of the amount, a story
might be fabricated by the accused that he lost cheque leaves
and complainant found by three cheques and he misused the
same. Therefore, the defense of the accused is not probable.
14. The revision petitioner though had not taken such
defences before the trial Court or such grounds before the
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appellate Court, but tried to make out new grounds in this
revision petition and on such grounds, he cannot challenge the
impugned judgment or order. Therefore, the contention of
learned counsel for revision petitioner that respondent had no
source of income to pay the amount of Rs.8,00,000/- to the
accused and he had not produced any books of account to
prove the said contention, are not tenable. In the cross
examination of PW1, he has stated that he has been doing
cheque discounting business and always he has Rs.10 to 15
lakhs cash with him as working capital, it is not denied by
accused. Appellate Court in the impugned judgment, following
law laid down by the Hon'ble Apex Court in the case of
Rangappa vs. Mohan1 held that the complainant has prima
facie proved his source of income and that was not denied or
disputed by the accused. Therefore, accused has not rebutted
the same. There is no error in the said findings.
15. The learned advocate for the petitioner has relied
on the following judgments:
AIR (2010) SC 1898
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i. Criminal appeal No.939/2010 - Yeshwanth
Kumar Vs. Shanth Kumar N dated
07.08.2019.
ii. Criminal Appeal No.545/2010 - K.V.
Subba Reddy Vs. N. Raghava Reddy dated
28.02.2014.
iii. (2015) 1 SCC 99 - K. Subramani Vs. K.
Damodhara Naidu.
iv. AIR 2008 SC 1325 - Krishna Janardhana
Bhat Vs. Dattatreya G. Hegde.
v. ILR 2010 KAR 4993 - K.George Varghese
Vs. State of Karnataka.
16. In the case of Yeshwanth Kumar (referred supra),
the Co-ordinate Bench of this Court appreciating the evidence
available on record held that evidence of complainant was not
consistent. Therefore, disbelieved the evidence. That is not the
fact of the present case. Therefore, it is not applicable to the
facts of the present case.
17. The law laid down in the case of K.V. Subba
Reddy vs. Raghupathy Reddy (referred supra), which was
also cited by the appellant before the First Appellate Court,
does not help his contention. In that case also, re-appreciating
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the evidence, co-ordinate Bench of this Court, held that
evidence of complaint was not reliable, hence, dismissed the
appeal filed by the complainant. In this case, evidence of
complainant is believable and he proved the guilt of the
accused beyond all reasonable doubt. Accused failed to rebut
the presumption available to the complainant under Sections
118 and 139 of N.I. Act and disprove his case. Therefore, it
does not help the contention of accused.
18. The learned advocate for petitioner has also relied
on the judgment of Hon'ble Apex Court in the cases of K.
Subramani and Krishna Janardhana Bhat (referred supra).
The law laid down in this judgment is impliedly over ruled in
the case of Rangappa vs. Mohan (referred supra). Hence it
will not help the contention of revision petitioner.
19. The law laid down in the case of K.George
Varghese (referred supra) is also not applicable to the facts of
the present case. Facts of both the case are totally different. In
this case, the learned trial Judge on verifying allegations in the
complaint, took cognizance of the complaint which is absent in
the said case. As per Section 190 of Cr.P.C., there is no need to
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assign the reasons to take cognizance of the complaint. In this
case, the learned trial Judge has noted taking of cognizance in
his hand writing. Therefore, on that count, impugned judgment
cannot be considered as arbitrary or illegal.
20. The learned counsel for petitioner has submitted
that as per the provisions of Income Tax Act any payment
exceeding Rs.20,000/- per day shall be made through cheque
or electronic transfer. In this case, the complainant has alleged
that he paid Rs.8,00,000/- in cash on the same day to the
accused. Therefore, the said payment is contrary to the
provisions of the Income Tax Act and hence, it cannot be
considered as legally enforceable debt.
This is also new ground taken out in this revision petition.
21. Section 269SS of Income Tax Act, which reads as
under:
"269SS. No person shall take or accept
from any other person (hereinafter referred to
as the depositor), any loan or deposit or any
specified sum, otherwise than by an account
payee cheque or account payee bank draft or
use of electronic clearing system through a bank
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account [or through such other electronic mode
as may be prescribed], if,-
(a) xxx
(b) xxx"
22. Above Section is contrary to the contention of
accused. The acts of the accused in this regard may amount to
violation of provision Income Tax Act by the accused for which
he might be responsible. Violation of the said provision cannot
be a ground to hold that complainant has lost his right to
recover the debt paid to the accused or accused can take the
said defense for non repayment of debt to the complainant. On
the basis of the said defect in the transaction, accused cannot
be acquitted.
23. The learned first appellate judge has considered the
grounds urged before him and brightly dismissed the appeal.
There is no error in the said findings of the first appellate judge
to interfere with the said findings. Accordingly, I answer
question No.1 in the 'affirmative'.
24. The alleged offence for which the trial Court had
convicted the accused is punishable under Section 138 of N.I.
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Act. It is a quasi criminal in nature. The main object to pass
the said enactment by the legislature is to create trust, belief
and confidence in the banking transactions. The intention of
legislature is not to send an accused to jail for committing such
an offence. It is not the case of the complainant that accused is
habitual offender. Considering facts and circumstance of
present case, the sentence imposed by the trial Court,
sentencing accused to undergo imprisonment for a period of six
months is a harsh punishment and disproportionate to the
offence committed by him, which needs to be set aside.
25. Under Section 138 of N.I. Act, the Court can
sentence an accused with imprisonment for a term, which may
extend to two years or with fine which may extend to twice the
amount of cheque or with both. The cheques were issued
during March, 2005. The matter is pending for last about 20
years and complainant is out of reach of the amount given to
accused. Had he kept the said amount in the Bank, he could
have earned interest on the amount lent to the accused.
Considering these facts and circumstances the fine imposed by
the trial Court is justifiable and proper. It does not call for any
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interference. Accordingly, I answer point No.2 partly in the
affirmative.
26. For the reasons stated above, I proceed to pass the
following:
ORDER
i. The revision petition is Partly-allowed.
ii. Conviction of the accused - revision
petitioner under Section 138 of N.I. Act is
confirmed.
iii. Sentence imposed by the trial Court in
C.C. No.29645/2005 dated 26.08.2014 is
modified. Sentence of imprisonment
imposed by the Courts below is set aside.
Accused is sentenced to pay fine of
Rs.16,00,000/-, in default of payment of
fine, he shall undergo imprisonment for a
period of six months.
iv. Forty-Five (45) days' time is granted to
the accused - revision petitioner to
deposit the fine amount before the trial
Court or shall surrender before the trial
Court to undergo default sentence.
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v. Remaining operative portion of impugned
order of trial Court is confirmed by
Appellate Court is not disturbed.
vi. Registry is directed to send back trial
Court records forthwith alongwith the copy
of the judgment.
Sd/-
JUDGE
AG
