Karnataka High Court
Mr B S Mahesh vs M/S Karnataka Merchants Finance on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 1014 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. 1014 OF 2021
BETWEEN:
MR. B.S. MAHESH,
S/O LATE H.V. SWAMY,
AGED ABOUT 44 YEARS,
R/AT NO. E-83,
SRI. GURU SHANESHWARA SWAMY MAHAKSHETRA,
KEMPABUDIKERE,
KEMPEGOWDA NAGARA,
BENGALURU - 560 019.
...PETITIONER
(BY SRI. KUMARA K.G., ADVOCATE)
AND:
M/S KARNATAKA MERCHANTS FINANCE
Digitally
signed by REGISTERED OFFICE SITUATED AT NO.565,
YAMUNA K L 2ND FLOOR, HMT LAYOUT, 2ND BLOCK,
Location: High 8TH MAIN ROAD,
Court of
Karnataka VIDYARANYAPURA,
BANGALORE-560 097.
AND ALSO BRANCH OFFICE AT NO.897,
1ST FLOOR, 12TH MAIN , 4TH CROSS,
NEAR MARUTHI CIRCLE, HANUMANTHNAGAR,
BANGALORE-560 019.
REPRESENTED BY ITS AUTHORISED PERSON
SRI ABDUL SUBHAN.
...RESPONDENT
(RESPONDENT SERVED)
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CRL.RP No. 1014 of 2021
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY THE HONBLE
COURT, THE PETITIONER HAS PREFERRED APPEAL BEFORE THE
LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-64)
AT BENGALURU IN CRL.A.NO.1131/2016 DATED 08.12.2020
AND JUDGMENT PASSED BY XLII ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE NRUPATUNGA ROAD,
BENGALURU CITY IN C.C.NO.14967/2015 DATED 29.08.2016
TO ACQUIT THE PETITIONER OF THE CHARGE UNDER SEC.138
OF NI ACT BY ALLOWING THIS CRIMINAL REVISION PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Kumara. K. G., learned counsel for the revision
petitioner. None present on behalf of the respondent.
2. Accused who has convicted for the offence
punishable under Section 138 of the Negotiable Instrument
Act(for short 'NI Act'), in C.C.No14967/2015 confirmed in
Crl.A.No.1131/2016 has preferred the present revision petition.
3. The facts in brief which are utmost necessary for
disposal of the revision petition are as under:
4. A complaint came to be lodged under Section 200
of Cr.P.C. by the respondent contending that accused being a
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member of the complainant finance company, borrowed a sum
of Rs.3,00,000/- as loan on 07.02.2012 and in that regard, he
had executed necessary documents. Towards the repayment of
the said loan amount with interest, he issued a cheque bearing
No.793621 drawn on Vijaya Bank, Hanumanthanagara branch,
Bangalore, on 20.03.2015 in a sum of Rs.2,77,500/- which is
the balance outstanding in the loan amount and the said
cheque on presentation came to be dishonored with an
endorsement 'Account Blocked Situation Covered 2125'.
5. Legal notice was issued and the same was served
on the accused. There was no reply nor compliance to the
calling of the notice. Therefore, action against the accused was
sought.
6. The learned Trail Court took cognizance for the
offence punishable under Section 138 of the NI Act and
summoned the accused and recorded plea. Accused pleaded
not guilty. Therefore, Trial was held.
7. In order to prove the case of the complainant,
complainant himself got examined as PW.1 and placed on
record documentary evidence which are executed and marked
as Exs.P1 to P16. Cross-examination of PW1 did not yield any
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material to dislodge the presumption under Section 139 of NI
Act. Thereafter, accused statement under Section 313 of Cr.P.C
was recorded, wherein accused has denied incriminating
materials. As against the evidence placed on record by the
complainant, accused got examined himself as DW.1 and as
many as 11 documents were placed on record on behalf of the
accused which were executed and marked as Exs.D1 to D11.
Among them Ex.D1 to D10 are the pigmy slips which was
confronted to PW.1 and admitted by PW.1 and as such those
documents were in the cross examination of PW.1.
8. The learned Trial Judge thereafter heard the parties
in detail and convicted the accused for the offence punishable
under Section 138 of the NI Act and imposed fine of Rs.7,000/-
towards the defraying expenses of the State and a sum of
Rs.3,00,000/- was ordered as compensation to the
complainant.
9. Being aggrieved by the same, accused preferred an
appeal before the district court in Crl.A.No.1131/2016.
10. The learned Judge in the First Appellate Court, after
securing the records and hearing the parties in detail dismissed
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the appeal of the accused by upholding findings recorded by
the Trial Magistrate.
11. Thereafter, accused is before this Court.
12. The learned counsel for the petitioner Sri.Kumara.
K. G., vehemently contended that the Trial Magistrate has not
properly appreciated the material evidence on record especially
Ex.D1 to D11 and wrongly convicted the accused which has
been mechanically upheld by the learned Judge in the First
Appellate Court and sought for allowing the revision petition.
13. He also pointed out that transaction is of the year
2012 and to be more specific the loan was borrowed on
07.02.2012 and the cheque came to be issued on 20.03.2015
whereby the debt was clearly time barded and therefore, there
was no liability on the part of the accused to repay the cheque
amount and sought for allowing the petition.
14. Respondent though served with the notice by the
revision petitioner remained absent.
15. In the light of the arguments put-forth, this Court
perused the material evidence on record meticulously. On such
perusal of the material evidence placed on record, issuance of
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cheque by the accused to the complainant is not in dispute so
also the signature found there in.
16. The defense that has been put forth on behalf of
the accused before the Trial Magistrate is that the complainant
has not given proper deductions to his claim in respect of
Exs.D1 to D11.
17. In the cross examination of DW.1 to DW.11 it has
been clearly admitted that D1 to D10 pertains to the loan
transaction of the year 2011 and not 2012. So also in respect
to Ex.D11 there is a dispute.
18. Even though the loan amount was in a sum of
Rs.3,00,000/- as could be seen from the demand promissory
note produced before the Court, the cheque came to be issued
vide Ex.P11 in a sum of Rs.2,77,500/- which means to say the
payments made by the accused has been given due deduction
in respect of the on demand promissory note executed by the
accused in favour of the complainant vide Ex.P9.
19. When some payments have been made by the
accused to the complainant and the same has been given due
deductions, it should not lie in the mouth of the accused that
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cheque has been misused and the cheque pertains to some
other transaction.
20. Further, since the payments have been made and
the same has been given due deductions, the cheque dated
20.03.2015 is well within the time and the debt is not time
bared. Accordingly, viewed from any angle the grounds urged
in the revision petition are hardly sufficient to interfere with the
order of the Trial Court convicting the accused for the offence
punishable under Section 138 of the NI Act and confirmed in
the First Appellate Court.
21. Having said thus, as against the sum of
Rs.2,77,500/ the Trial Judge has ordered compensation of a
sum of Rs.3,00,000/- , which needs no interference.
22. However, since the lis is privy to the parties and no
state machinery is involved, awarding sum of Rs.7,000/-
towards the defraying expenses of the State needs interference
in this revision. Hence, the following:
ORDER
i. Criminal Revision Petition is allowed in
part.
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ii. While maintaining the conviction of the
accused for the offence punishable under
Section 138 of the NI Act, the fine amount
ordered by the learned Trial Magistrate
confirmed by the First Appellate Court in a
sum of Rs.7000/- towards the defraying
expenses of the State is hereby set aside.
iii. Compensation in a sum of Rs.3,00,000/-
awarded by the Trial Magistrate confirmed
by the First Appellate Court payable to the
complianant is hereby confirmed.
iv. Time is granted till 25.07.2024 to pay the
balance amount; failing which the accused
shall undergo simple imprisonment for a
period of 6 months.
Sd/-
JUDGE
