Karnataka High Court

Smt Kalpana vs Sri Neelakanteshwara on 2 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                     NC: 2024:KHC:24917
                                                CRL.RP No. 1330 of 2019




              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.1330 OF 2019
            BETWEEN:

            SMT KALPANA
            W/O SHIVARAJ
            AGED ABOUT 50 YEARS
            R/AT NO.1/8, 9TH MAIN,
            VENKATAPPA LAYOUT,
            BSK III STATE, HOSAKEREHALLI,
            BENGALURU-560085.
                                                          ...PETITIONER
            (BY SRI VIJAY SHETTY B, ADVOCATE)
            AND:

            SRI NEELAKANTESHWARA
            S/O LATE RACHAPPA
            SINCE DEAD BY HIS LEGAL REPRESENTATIVES
Digitally
signed by
MALATESH    SMT.GOWRAMMA
KC          W/O LATE SRI NEELAKANTESHWARA
Location:   AGED ABOUT 60 YEARS
HIGH        RESIDING AT NO.6, 2ND 'B' CROSS
COURT OF    BANASHANKARI 3RD STAGE
KARNATAKA   KATHRIGUPPE MAIN ROAD
            BANGALORE -560 085
                                                         ...RESPONDENT

            (BY  SRI   NAGABHUSHAN.R,    ADVOCATE         FOR    LEGAL
            REPRESENTATIVE OF DECEASED RESPONDENT)
                THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
            THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND
            ORDER OF DISMISSAL OF CRIMINAL APPEAL PASSED BY THE
            HONBLE LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
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                                                    NC: 2024:KHC:24917
                                             CRL.RP No. 1330 of 2019




BENGALURU     (CCH-57)   IN CRL.A.NO.129/2017 DATED
14.10.2019 FILED AGAINST THE JUDGMENT AND SENTENCE
PASSED BY THE HONBLE XVI ACMM AT BENGALURU IN
C.C.NO.27346/2014 DATED 02.01.2017 BY ALLOWING THE
ABOVE     PETITION     AND   BY    ACQUITTING   THE
PETITIONER/ACCUSED.

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

                                     ORDER

Heard Sri Vijaya Shetty B., learned counsel for the

revision petitioner. No representation on behalf of the

respondent.

2. Accused - revision petitioner challenged the order of

conviction passed by the XVI Addl.C.M.M., Bengaluru in

C.C.No.27346/2014, dated 02.01.2017, confirmed by the LVI

Additional City Civil and Sessions Judge, Bengaluru, in

Crl.A.No.19/2017, dated 14.10.2019.

3. Facts in brief which are utmost necessary for disposal of

the revision petition are as under:

The accused is the family friend of the complainant and

during second week of April 2014, he approached complainant

for financial help in a sum of Rs.5,00,000/- for construction of

her house. The same was lent by the complainant on

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21.04.2014 and towards the repayment of the said amount,

cheque bearing No.311701, dated 23.07.2014, in a sum of

Rs.5,00,000/-, drawn on Canara Bank, Padmanabhanagara

Branch, was issued by the accused, which on presentation

came to be dishonoured with an endorsement funds

insufficient.

4. Legal notice came to be issued, which was not complied,

Therefore, the complainant was constrained to file a complaint

before the jurisdictional Magistrate.

5. Learned Trial Magistrate took cognizance, secured the

presence of the accused, recorded the plea, accused pleaded

not guilty, therefore trial was held.

6. In order to prove the complainant's case, complainant

himself examined as P.W.1 and placed on record as many as 15

documents which were exhibited and marked as Exs.P.1 to P.15

comprising of original cheque, bank memo, copy of legal notice,

postal receipt and acknowledgement, complaint, true copy of

letter issued by Deputy Director, true copy of cheques,

statement of accounts and certified copies of the ordersheet.

No useful material is elicited in cross-examination so as to

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dislodge the presumption under Section 139 of Negotiable

Instruments Act.

7. Accused statement as is contemplated under Section 313

of Cr.P.C., was recorded, wherein accused denied all the

incriminating evidence available on record.

8. As against the evidence placed on record, accused got

examined herself as D.W.1 and placed seven documents which

were exhibited and marked as Ex.D.1 to D.7, comprising of

certified copies of the complaint, chief examination affidavit of

complainant, certified copy of cheque, certified copy of the legal

notice, certified copy of the postal receipt, certified copy of the

postal acknowledgement and certified copy of thecross-

examination of complainant in C.C.No.30587/2014.

9. Learned Trial Magistrate heard the parties in detail and

passed the order of conviction, wherein accused is convicted for

the offence punishable under Section 138 of Negotiable

Instruments Act and the Trial Magistrate imposed the fine of

Rs.6,00,000/-, of which sum of Rs.5,85,000/- as compensation

to the complainant and Rs.15,000/- as cost towards the State

exchequer.

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10. Being aggrieved by the same, accused preferred an

appeal before the Sessions Court in Crl.A.No.129/2017.

11. Learned Judge in the First Appellate Court after securing

the records and hearing the parties, by judgment dated

14.10.2019 dismissed the appeal, whereby the order of

conviction and sentence imposed by the Trial Magistrate was

confirmed by the learned Judge in the First Appellate Court.

12. Being aggrieved by the same, accused is before this

Court.

13. Learned counsel for the revision petitioner reiterating the

grounds urged in the revision petition, vehemently contended

that both the Courts have not properly appreciated the material

evidence on record insofar as the capacity of the complainant

to lent sum of Rs.5,00,000/- to the accused and therefore,

conviction of the accused for the offence punishable under

Section 138 of Negotiable Instruments Act is incorrect and

sought for allowing the revision.

14. He also pointed out that the evidence placed on record by

the accused in the form of certified copy of the proceedings in

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C.C.No.30587/2014, where under the proceedings was one

against Smt. Selvee. Though the said document is produced by

the accused, the learned Trial Magistrate and Judge in the First

Appellate Court have not properly considered and therefore,

sought for allowing the revision.

15. Since the counsel for the respondent is absent, this Court

perused the material on record meticulously in the light of the

argument put forth on behalf of the revision petitioner. On

such perusal, it is crystal clear that issuance of the cheque and

signature therein that of the accused is not contested.

16. According to the accused, the said cheque was issued in

favour of Bhagyamma, who in turn handed it to the

complainant and there was no transaction of the complainant

and the accused which has not been probably considered by the

learned Trial Magistrate. In paragraphs 36 and 37 of the

impugned judgment, learned Trial Magistrate considered in

detail about the issuance of the cheque by the accused to the

complainant.

17. It is also pertinent to note that the alleged misuse of the

cheque by Bhagyamma in collusion with the complainant, no

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positive action has been taken by the accused either by filing

the criminal complainant or by getting the legal notice issued.

No prudent person would keep quiet when there is a misuse of

cheque that too in a sum of Rs.5,00,000/- even after having

the services of an Advocate, when the accused was first

appeared before the Trial Magistrate.

18. Under such circumstances, the learned Trial Magistrate

raising the presumption in favour of the complainant and also

taking note of the probative value of the documentary evidence

placed on record by the complainant, this Court is of the

considered opinion that the order of conviction passed by the

learned Trial Magistrate and confirmed by the First Appellate

Court does not require any interference in this revision petition.

19. However, since the lis between the two private parties,

and no State machinery is involved, imposition of fine of

Rs.15,000/- 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.

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Accordingly, following:

ORDER

(i) Criminal revision 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

Rs.5,85,000/- and the same be paid as

compensation to the complainant, failing which,

accused should undergo simple imprisonment for

a period of one year.