Karnataka High Court
D. Ranganath vs M.S. Panchaksharaiah on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:24916
CRL.RP No. 343 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.343 OF 2016
BETWEEN:
1. D. RANGANATH
S/O DASEGOWDA,
AGED ABOUT 47 YEARS,
R/O PURA VILLAGE (CHANDUR PURA)
KASABA HOBLI,
TURUVEKERE TALUK,
TUMKURU DISTRICT-572 221
...PETITIONER
(BY SRI CHANDRASHEKARA K A, ADVOCATE)
AND:
1. M.S. PANCHAKSHARAIAH
S/O SIDDAPPA,
AGED ABOUT 53 YEARS,
R/O MACHENAHALLI VILLAGE,
DANDINASHIVARA HOBLI,
Digitally TURUVEKERE TALUK,
signed by R TUMKURU DISTRICT-572215
MANJUNATHA
...RESPONDENT
Location: (BY SRI G.A.GOPI, ADVOCATE)
HIGH COURT
OF THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
KARNATAKA
CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION
AND SETNENCE DATED 04.06.2014 PASSED BY THE LEARNED
CIVIL JUDGE AND JMFC, TUTUVEKERE IN C.C.NO.175/2011
AND CONFIRMED BY THE LEARNED V ADDL. DIST. AND S.J.,
TIPTUR BY THE JUDGEMENT AND ORDER DATED 28.01.2016
VIDE CRL.A.NO.10011/2014, FOR THE OFFENCE P/U/S 138 OF
N.I ACT AND TO ACQUIT THE PETR./ACCUSED.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 343 of 2016
ORDER
Heard Sri K.A. Chandrashekara K.A., learned counsel for
the revision petitioner and Sri G.A. Gopi, learned counsel for
the respondent.
2. Accused who has suffered an order of conviction
under Section 138 of Negotiable Instruments Act in
C.C.No.175/2011, dated 14.06.2014, on the file of Civil Judge
and JMFC., Turuvekere, confirmed in Crl.A.No.10011/2014,
dated 28.01.2016, on the file of V Additional District and
Sessions Judge, Tiputur, is the revision petitioner.
3. Facts in brief which are utmost necessary for
disposal of the revision petition are as under:
Criminal prosecution was lodged by the
complainant/respondent against the accused/revision petitioner
alleging that accused has borrowed sum of Rs.80,000/- from
the complainant on 02.10.2009 and towards the repayment,
the cheque bearing No.0825335, dated 24.03.2010, drawn on
Karnataka Bank, Turuvekere Branch, has been issued, which on
presentation came to be dishonoured and there was no
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compliance to the callings of the notice. Therefore, sought for
action.
4. Learned Trial Magistrate took cognizance, secured
the presence of the accused, recorded the plea, accused
pleaded not guilty, therefore trial was held.
5. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and placed on
record five documentary evidence which were exhibited and
marked as Exs.P.1 to P.5. In the cross-examination of P.W.1
no useful material is elicited to dislodged the presumption
available to complainant under Section 139 of Negotiable
Instruments Act.
6. Accused statement as is contemplated under
Section 313 Cr.P.C., was recorded, wherein he denied al the
incriminating materials. Accused did not choose to place any
written statement on record as is contemplated under Section
313 (4) Cr.P.C.
7. Accused also did not step into the witness box nor
produced any contra material on record to rebut the
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presumption available to the complainant under section 139 of
Negotiable Instruments Act.
8. Thereafter the learned Trial Magistrate heard the
parties and convicted the accused and imposed the fine of
Rs.5000/- to the State and Rs.80,000/- as compensation which
is the cheque amount.
9. Thereafter accused preferred an appeal in
Crl.A.No.10011/2014 before the District Court. Learned Judge
in the First Appellate Court dismissed the appeal of the accused
and confirmed the judgment of the learned Trial Magistrate.
10. Being aggrieved by the same, accused is before this
Court.
11. Sri Chandrashekara K.A., learned counsel for the
revision petitioner vehemently contended that the cheque in
question is old cheque as it could be seen from the year that
has been printed on the date column which shows that it was
issued in the year '1990's' and not in '2000' millennium.
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12. He also points out that the cheque has been
dishonoured with an endorsement account closed, which shows
that the old cheque which was in the custody of the
complainant has been misused by the complainant and
therefore, the Trial Court ought not to have convicted the
accused for the offence punishable under Section 138 of
Negotiable Instruments Act and sought for allowing the revision
petition.
13. Per contra, Sri G.A. Gopi, learned counsel for the
respondent supports the impugned judgment.
14. Having heard the parties, this Court perused the
material on record meticulously. On such perusal, it is crystal
clear that the cheque in question dishonoured and the
signature found therein is not in dispute.
15. It is the defence of the accused that the cheque has
been misused. No positive action has been taken by the
accused after he came to know about the misuse.
16. It is no doubt true that on perusal of the Ex.P.1 it
shows that in the date column it has been printed as '19', which
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would represents the cheque is printed prior to '2000'
millennium. Merely on the ground that 19 has been printed on
the cheque representing the year would not make the cheque
defective one.
17. Admittedly, date for the cheque is 24.03.2010.
Why the accused has retained a cheque after he closed the
account in the bank and further, any declaration has been
furnished to the bank or police that the cheque leaf was
missing is a question that remains unanswered on the part of
the accused.
18. Admittedly, the signature found on the Ex.P.1 is
that of the accused.
19. When once the cheque is issued by the accused and
signature therein is not disputed by the accused, the
complainant enjoys the presumption as is contemplated under
Section 139 of the Negotiable Instruments Act.
20. No doubt, it is rebuttable presumption, but to rebut
the said presumption, no contra evidence is placed on record
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by the accused by examining himself for placing any of the
evidence on record.
21. Under such circumstances the learned Trial
Magistrate raised the presumption under Section 139 of
Negotiable Instruments Act and convicting the accused for the
offence punishable 138 of Negotiable Instruments Act
confirmed by the First Appellate Court does not call for
interference by this Court that too in the revisional jurisdiction.
22. Since the lis between the two private parties, and
no State machinery is involved, imposition of fine of Rs.5,000/-
to be paid to the State, towards the defraying expenses to the
State, cannot be countenanced in law and therefore, same
needs to be set aside.
Accordingly, following:
ORDER
(i) Criminal petition is allowed in part.
(ii) While maintaining the conviction of the accused
for the offence punishable under Section 138 of
Negotiable Instruments Act, fine amount
imposed by the Trial Court is modified to sum of
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Rs.80,000/- and the same be paid as
compensation to complainant.
(iii) Imposition of the fine amount of Rs.5,000/-
payable to the State is hereby set aside.
(iv) Revision petitioner shall deposit the balance
amount on or before 31.07.2024.
Sd/-
JUDGE
MR
