Karnataka High Court
Mr Sushir Kumar vs Mr Padmanabha B on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:24728
CRL.RP No. 981 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. 981 OF 2021
BETWEEN:
MR. SUSHIR KUMAR,
S/O LATE R.D. SUVARNA,
AGED ABOUT 65 YEARS,
HOUSE NO. 2-78/6(2)
MARIKAMBALA TEMPLE ROAD,
JAYASHREE GATE,
KULSHEKAR GATE,
MANGALURU 575 005
...PETITIONER
(BY SRI. K. SHASHIKANTH PRASAD., ADVOCATE)
AND:
MR. PADMANABHA B.,
Digitally
signed by S/O LATE GANGAYYA,
YAMUNA K L AGED 56 YEARS,
Location: High MATHASHREE,
Court of
Karnataka BAREBAIL BEJAI,
KAPIKADU,
MANGALURU 575 006
...RESPONDENT
(BY SRI. SANATH KUMAR SHEETY K., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 30.07.2021
PASSED BY THE VI ADDITIONAL DISTRICT AND SESSIONS
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NC: 2024:KHC:24728
CRL.RP No. 981 of 2021
JUDGE, D.K., MANGALURU IN CRL.A.NO.16/2018 AND THE
JUDGMENT DATED 29.01.2018 PASSED BY THE V ADDITIONAL
CIVIL JUDGE AND J.M.F.C., MANGALURU, D.K. IN
C.C.NO.229/2014 AND THEREBY REVISION PETITIONER /
ACCUSED WAS ACQUITTED FROM THE OFFENCE P/U/S 138 OF
N.I. ACT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Shashikanth Prasad learned counsel for the
petitioner and Sri. Sanathkumar Shetty. K., learned counsel
for respondent.
2. Revision petitioner is an accused who suffered as on
of conviction in C.C.229/2014 for the offence punishable under
Section 138 of the Negotiable Instrument Act (for short 'NI
Act') and confirmed in Crl.A.No.16/2018 where by he was
ordered to pay fine amount of a sum of Rs.2,02,000/- out of
which a sum of Rs.2,00,000/- was ordered to pay as
compensation to the complainant and the balance amount of
Rs.2,000/- towards the defraying expenses of the State.
3. Facts in brief which are utmost necessary for
disposal of the revision petitioner are as under:
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4. The complaint got lodged for criminal prosecution
against the accused for the offence punishable under Section
138 of the NI Act contending that accused is his friend who
approached him in May-2013 for the financial assistance for a
sum of Rs.2,00,000/-. The said amount was lent by the
complainant with a promise made by the accused that the
amount would be return in June-2013. Towards the repayment
of the loan, accused issued a post dated cheque bearing
No.005677 drawn on Karnataka Rajya Kaigarika Sahakari Bank
Niyamith, Mangaluru branch on 17.06.2013 for a sum of
Rs.2,00,000/- which on presentation came to be dishonor with
en endorsement funds insufficient.
5. Legal notice was issued calling upon the accused to
repay the amount covered under the cheque.
6. Though the accused has received the notice, there
was no compliance to the callings of notice. Thereafter, the
learned Trial Magistrate took cognizance and secured the
presence of the accused. Plea was recorded and accused
pleaded not guilty and therefore, trial was held.
7. In order to prove the case of the complainant, he
got examined himself as PW.1 and placed on record 6
documentary evidences which were executed and marked as
Ex.P1 to P6, comprising of dishonored cheque, bank
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endorsement, office copy of the legal notice, postal
acknowledgment, balance sheet and copy of the sale deed. No
useful materials are elicited in cross examination of PW.1 to
dislodge the presumption under Section 139 of the NI Act.
8. Accused statement as is contemplated under
Section 313 of Cr.P.C was recorded, wherein, accused denied
all the incriminatory circumstances.
9. Thereafter, accused stepped in into the witness box
and examine himself as DW.1 and placed on record the copy of
the P.U.C. marks card of Shrinika. S and a letter issued by the
Chartered Accountant dated 16.02.20015.
10. Learned Trial Magistrate thereafter heard the
parties and noted that the complainant has discharged the
initial burden by placing the oral and documentary evidence on
record so as to invoke the presumption available under Section
139 of Negotiable Instrument Act, in favour of the complainant
and the defense placed on record by the accused was not
sufficient enough to rebut the presumption and convicted the
accused as aforesaid.
11. Being aggrieved by the same accused has preferred
an appeal before the district Court in Crl.A.No.16/2018.
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12. The learned Judge in the appellate Court, after
securing the Trial Courts records and hearing the parties in
detail in the light of the grounds urged in the appeal
memorandum, dismissed the appeal of the accused and
confirmed the order of conviction and sentence.
13. Thereafter accused is before this Court in this
revision petition.
14. Sri. Shashikath, learned counsel for the revision
petitioner reiterating the grounds urged in this revision petition
contended that both the Courts have not properly appreciated
the material evidence on record in finding out the financial
capacity of the complainant to lend a sum of Rs.2,00,000/- and
therefore, sought for allowing the revision petition.
15. He also pointed out that according to the
complainant, a sum of Rs.2,00,000/- was lent individually
whether the balance sheet is filed by that of the partnership
firm and therefore there was no financial capacity for the
complainant to lend the money and sought for allowing the
revision petition.
16. Per contra, Sri. Sanathkumar shetty. K., learned
counsel representing the respondent supports the impugned
judgment.
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17. Having heard the parties in detail this Court
perused the material on record meticulously. On such perusal
of the material on record it is crystal clear that the cheque in
question has been issued by the accused in favor of
complainant and there is no dispute as to the signature of the
accused there in.
18. Having placed on record the oral and documentary
evidence, especially the dishonored cheque, copy of the bank
endorsement and signature of the accused not being disputed
in the dishonor cheque, the complainant enjoys the
presumption as is found under Section 139 of the NI Act.
Therefore, theory put forward on behalf of the revision
petitioner that the complainant did not possess the lending
capacity can not be countenance in law.
19. No doubt, such presumption is a rebuttal
presumption. In order to rebut such presumption, accused got
examined himself on record as DW.1 and placed on record 2
documents. Documentary evidence and the oral evidence
placed on record by the accused was not sufficient enough to
rebut the presumption available to the complainant and as
such, Trial Magistrate has rightly refused to accept the defense
and convicted the accused.
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20. The learned Judge in the First Appellate Court has
rightly re-appreciated the material evidence on record while
confirming the order of conviction.
21. This Court, that too in the revisional jurisdiction,
can not revisit into the factual aspects of the matter in
appreciating the case put forward on behalf of the revision
petitioner. Accordingly, order of conviction confirmed in the
First Appellate Court does not require any interference by this
Court in this revision.
22. Having said this both the Court have misdirected
themselves in imposing sum of Rs.2,000/- as fine amount
towards the State for the purpose of defraying expenses. Lis is
privy to the parties and state machinery is involved, imposing
the fine amount of Rs.2,000/- towards the State needs to be
set aside. Hence, the 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 the NI Act, the fine
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amount ordered by the learned Trial
Magistrate confirmed by the First
Appellate Court in a sum of
Rs.2,02,000/- is modified to the sum of
Rs.2,00,000/- and sum of Rs.2000/-
imposed as fine towards the State is
hereby set aside.
iii. Entire amount of Rs.2,00,000/- is to be
paid as compensation to the
complainant; failing which, the accused
shall undergo simple imprisonment for a
period of six months.
iv. Time is granted till 20.07.2024 to pay
the balance amount.
Sd/-
JUDGE
LDC
