Karnataka High Court

Smt Chandramati Hegde vs Sri K S Ramesh on 2 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                   NC: 2024:KHC:24893
                                               CRL.RP No. 878 of 2021




               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.878 OF 2021
            BETWEEN:

            SMT CHANDRAMATI HEGDE
            W/O LAKSHMI NARAYANA
            AGED ABOUT 53 YEARS
            R/A GANESH KRUPA NILAYA
            NO.1093, MAHESHWARI NAGAR
            5TH CROSS, T DASARAHALLI
            BENGALURU-560 057
                                                        ...PETITIONER
            (BY SRI MADHUKAR M DESHPANDE, ADVOCATE)
            AND:

            SRI K S RAMESH
            S/O SATHYANARAYANA RAO
            AGED ABOUT 55 YEARS
            RESIDING AT NO.2217, DEVI NILAYA
            PAMPA MAHAKAVI ROAD
Digitally   T DASARAHALLI
signed by R BANGALORE-560057
MANJUNATHA
                                                     ...RESPONDENT
Location:   (RESPONDENT  - SERVED)
HIGH COURT
OF               THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
KARNATAKA
            CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 18.01.2021
            PASSED IN CRL.A.NO.2566/2018 WHEREIN THE APPELLANT
            COURT WAS PLEASED TO UPHOLD THE CONVICTION PASSED
            IN C.C.NO.26763/2016 DATED 27.11.2018 PASSED BY THE
            SMALL CAUSES AND XXVI ADDITIONAL CHIEF METROPOLITAN
            MAGISTRATE, BENGALURU.

                 THIS PETITION COMING ON FOR FURTHER HEARING,
            THIS DAY, THE COURT MADE THE FOLLOWING:
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                                            NC: 2024:KHC:24893
                                        CRL.RP No. 878 of 2021




                            ORDER

Heard arguments of Sri B.S.Venkata Narayana, appearing

on behalf of Sri Madhukar Deshpande, learned counsel for the

revision petitioner. There is no representation on behalf of the

respondent.

2. Time was granted to find out the feasibility of

amicable settlement, if any. Since the respondent is absent.

Amicable settlement is impermissible.

3. Revision petitioner is the accused who suffered an

order of conviction in C.C.No.26763/2016, dated 27.11.2018,

on the file of Small Causes and XXVII ACMM at Bengaluru,

confirmed in Crl.A.No.2566/2018, dated 18.01.2021, on the file

of LXV Additional City Civil and Sessions Judge, Bengaluru,

where under the accused has been convicted for the offence

punishable under Section138 Negotiable Instruments Act and

order to pay fine amount of Rs.4,00,000/- of which sum of

Rs.3,90,000/- was ordered to be paid as compensation to the

complainant and balance of Rs.10,000/- towards the defraying

expenses to the State, with default sentence of simple

imprisonment of six months.

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4. Facts in brief which are utmost necessary for

disposal of the revision petition are asunder:

A complaint came to be lodged under Section 200 Cr.P.C.,

by the complainant, alleging the commission of the offence

under Section 138 of Negotiable Instruments Act by contending

that in August 2013, accused borrowed sum of Rs.3,00,000/-

from the complainant in respect of his business M/s. Lakshmi

Venkateshwara Enterprises.

5. It was his contention that the said amount would be

repaid within a period of three years from the date of

borrowing. It is further contended that the accused pledged his

house as security with the complainant at the time of receiving

the loan amount. Thereafter, the accused said to have

approached the Peenya Police and some settlement took place

therein, where under the accused issued a cheque on

17.10.2016 in a sum of Rs.3,66,000/- as full and final

settlement and obtained the sale deed which was pledged with

the complainant. Said cheque on presentation came to be

NC: 2024:KHC:24893

dishonoured with an endorsement payment stopped by the

drawer.

6. Legal notice did not yield in the compliance of

callings of the notice. Therefore, action was sought.

7. Later, Trial Magistrate took cognizance and

summoned the accused. Plea was recorded, accused pleaded

not guilty and therefore trial was held.

8. In order to prove the case of the complainant,

complainant got examined as P.W.1 and Smt. Jayamma as

P.W.2. Eight documentary evidence were placed on record as

Ex.C.1 to C.8. Cross-examination of P.W.1 did not yield any

positive material to dislodge the presumption under Section

139 of Negotiable Instruments Act.

9. Accused statement as contemplated under Section

313 Cr.P,.C., is recorded under Section 313 of Cr.P.C., wherein,

accused denied all the incriminating circumstances put to her.

10. As against the evidence placed on record by the

complainant, accused got examined herself as D.W.1 and

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placed on record six documentary evidence which were

exhibited and marked as Exc.D.1 to D.6.

11. Thereafter, Learned Trial Judge heard the parties

and convicted the accused as aforesaid.

12. Being not satisfied with the judgment of the Trial

Magistrate, accused preferred an appeal before the District

Court in Crl.A.2566/2018.

13. Learned Judge in the First Appellate Court

dismissed the appeal of the revision petitioner. Thereafter

accused is before this Court.

14. Sri B.S. Venkata Narayana, learned counsel for the

revision petitioner reiterating the grounds urged in the revision

petition, vehemently contended that the alleged loan

transaction took place in August 2013 and cheque issued on

17.10.2016 is admittedly a time barred debt and therefore,

Trial Magistrate ought not to have convicted the accused and

sought for allowing the revision petition.

NC: 2024:KHC:24893

15. He further pointed out that the sale deed said to

have been pledged by the accused with the complainant is an

afterthought by the complainant. Therefore, prays to allow the

revision.

16. Respondent though served with the notice,

remained absent.

17. In the light of the arguments put forth on behalf of

the revision petitioner, this Court perused the material on

record meticulously. On such perusal of the material on record,

it is not in dispute that the cheque in question marked at

Ex.C.1 has reached the hands of the complainant. The

signature found therein is that of the accused, is not in dispute.

18. According to the complainant there was a loan

transaction which is not denied by the revision petitioner.

However, it is the case of the revision petitioner that the

cheque is filled by complainant to cover a time barred debt. As

such, its a misuse. If it is so, no action has been taken by the

accused till today.

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19. Complainant has specifically stated that the matter

was tried to be sorted out in Peenya police station, where under

the sale deed was returned to the accused by the complainant

by accepting the cheque in question in a sum of Rs.3,66,000/-.

Therefore, the presumption as is available to the complainant

under Section 139 of Negotiable Instruments Act has been

rightly raised in favour of the complainant by the Trial

Magistrate by convicting the accused for the aforesaid offence.

No doubt it is a rebuttable presumption.

20. In order to rebut the said presumption, no positive

action has been taken by the accused by filing the police

complainant or by issuing legal notice. Said inaction on the

part of the accused even after appearing before the Trial

Magistrate would go to show that there was no misuse of the

cheque as is alleged by the accused.

21. Under such circumstances, recorded an order of

conviction by the Trial Magistrate, confirmed by the First

Appellate Court is just and proper. Therefore, the interference

of this Court, that too in the revisional jurisdiction, does not call

for.

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22. But on the ground of proper sentence, since it is a

lis between the two private parties, order of fine of Rs.10,000/-

to the State as fine is an error, which needs interference by this

Court in this revision petition.

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.3,90,000/- and the same be paid as

compensation to complainant.