Karnataka High Court

Sri Goveindappa B K vs Sri Girisha K B on 2 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                   NC: 2024:KHC:24727
                                             CRL.RP No. 859 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. 859 OF 2021
            BETWEEN:

            SRI. GOVEINDAPPA B. K.,
            S/O LATE KRISHNAPPA,
            AGEDA BOUT 50 YEARS,
            R/AT NO.96, 1ST MAIN ROAD,
            2ND CROSS, KANAKANAGAR,
            GKVK POST, YELAHANKA SATELLITE TOWN,
            CHIKKABOMMASANDRA,
            BENGALURU 560 065.
                                                        ...PETITIONER
            (BY SRI. C. SHANKAR REDDY, ADVOCATE)

            AND:

            SRI. GIRISHA K. B.,
Digitally
signed by   S/O BYRASHETTY,
MALATESH    AGED ABOUT 50 YEARS,
KC          R/AT NO.1/1,
Location:   SRI SHAKTHI NILAYA, 8TH CROSS,
HIGH        5TH MAIN ROAD,
COURT OF
KARNATAKA   SANJEEVININAGAR,
            BENGALURU-560 072.
                                                       ...RESPONDENT
            (BY SRI. ANAND R.V., ADVOCATE)

                   THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
            PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT & ORDER
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                                                   NC: 2024:KHC:24727
                                            CRL.RP No. 859 of 2021




DATED 21.12.2020 CRL.A.NO.758/2018 PASSED BY THE LXIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
AND    THEREBY        ALSO   SET    ASIDE   THE      JUDGMENT       AND
SENTENCE DATED 02.04.2018 PASSED IN C.C.NO.4383/2015
BY    THE     XVIII   ACMM,    BANGALORE       AND      ACQUIT      THE
PETITIONER IN THE ABOVE OFFENCE.

      THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

THE COURT MADE THE FOLLOWING:

                               ORDER

Heard Sri. Nataraj.D., learned counsel for the revision

petitioner, Smt. Jayashri. G., learned counsel for the

respondent.

2. Accused who suffered an order of conviction in

C.C.No.4383/2015 for the offence pus 138 of the Negotiable

Instrument Act (for short 'NI Act') and ordered to pay fine

amount of Rs.2,85,000/- out of which a sum of Rs.2,75,000/- is

ordered to pay as compensation to the complainant and the

balance amount of Rs.10,000/- towards the defraying expenses

of the State confirmed in Crl.A.No.758/2018 has preferred this

present revision petition.

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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. alleging the commission of the offence punishable

under Section 138 of the NI Act contending that the

complainant was introduced to the accused by one Nanjappa,

who was working in HAL. With that acquaintance, accused

approached the complainant for financial assistance in the

month of December-2013 and he agreed to repay the same

within 4 to 5 months. Based on the said request, complainant

advanced a sum of Rs.2,25,000/- for which accused has agreed

to pay interest at the rate of 18% per annum. Despite the lapse

of 4 to 5 months, accused did not repay the amount borrowed

by him and therefore, when the complainant started demanding

the accused to repay the amount, accused issued a cheque in a

sum of Rs.2,25,000/- bearing No.162468 drawn on Syndicate

Bank, Vidyaranyapura branch, Bengaluru dated 05.12.2014.

The said cheque on presentation came to be dishonored with an

endorsement 'insufficient funds' on 06.12.2014. Therefore,

legal notice came to be issued on 23.12.2014.

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5. The legal notice is returned with an endorsement

'Not claimed'. Thereafter, complainant has sought for an action

against the accused for the offence punishable under Section

138 of NI Act.

6. The learned Trial Magistrate took cognizance for the

offence punishable under Section 138 of the NI Act and

summoned the accused and recorded the plea. Accused

pleaded not guilty. Therefore, Trial was held.

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

complainant got examined himself as PW.1 and placed on

record 5 documents comprising of dishonored cheque, bank

endorsement, office copy of the legal notice, postal receipt and

postal returned covers. Cross examination of PW.1 did not

yield any positive materials to dislodge the presumption in

favour of complainant under Section 139 of NI Act.

8. Accused statement as is contemplated under

Section 313 of Cr.P.A was recorded wherein, accused denied all

the incriminatory circumstances.

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9. As against the evidence placed on record by the

complainant, accused got examined himself as DW.1 and did

not choose to place any documentary evidence on record.

10. It was the case of the defense before the Trial Court

that the complainant had no lending capacity inasmuch as he

was doing the job of a cable operator and therefore, the cheque

is misused by the complainant in active collusion with one

Nanjappa, who is a common friend to the complainant and

accused and therefore, the cheque did not involve any legally

recoverable debt and sought for dismissal of the complaint.

11. The said defense was not probabalized by placing

necessary evidence on record by the accused, is the finding

recorded by the learned Trial Magistrate while passing the order

of conviction as referred supra.

12. Learned judge in the First Appellate Court re-

appreciating the material evidence on record dismissed the

appeal of the accused. Thereafter, accused is before this Court.

13. Sri. Nataraj learned counsel for the revison

petitioner reiterating the grounds urged in the revision

petition vehemently contended that both the Courts have not

NC: 2024:KHC:24727

properly appreciated the material evidence on record especially

the lending capacity of the complainant resulting in

mis-carriage of justice and sought for allowing the petition.

14. Per contra Smt. Jayashri, learned counsel for the

respondent supports the impugned judgment.

15. Having heard the parties in detail, this Court

perused the material on record meticulously. On such perusal

of the material on record, issuance of the cheque and the

signature found there in is not in dispute.

16. It is the defense of the accused that Nanjappa had

possession of the cheque issued by the accused which has

some how reached the hands of the complainant and both of

them colluded together and mis-used the same. To probabalize

the theory of the mis-use, no positive evidence is placed on

record by the accused. No criminal complaint has been lodged

against one Nanjappa or the accused. Nanjappa is neither cited

as a witness as against the complainant in favour of the

accused. All these factors have been properly appreciated by

the learned Trial Magistrate while invoking the presumption

available to the complainant under Section 139 of the NI Act.

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Therefore, when the theory of misuse, which is not proved, the

question of lending capacity of the complainant cannot be

countenanced. As such the learned Trial Magistrate and the

learned Judge in the First Appellate Court have rightly

appreciated the material evidence on record in recording an

order of conviction.

17. This Court, that too in the revisional jurisdiction,

can not interfere with the well reasoned finding of the Trial

Magistrate and confirmed by the First Appellate Court.

18. As such, the conviction order passed by the Trial

magistrate and confirmed by the First Appellate Court is

maintained.

19. Having said thus, the learned Trial Magistrate has

imposed a sum of Rs.2,85,000/- as the fine amount of which a

sum of Rs.2,75,000/- is ordered to be paid as compensation to

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

expenses of the State. In view of the fact that the lis is privy to

the parties and no state machinery is involved, Rs.10,000/-

towards the defraying expenses of the State can not be

countenanced in law.

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20. To that extent the order of the Trial Magistrate and

confirmed by the First Appellate Court needs to interference in

this revision. Accordingly, the following:

ORDER

i. Criminal Revision Petition is allowed in

part.

ii. While maintaining the order of 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.2,85,000/- is modified to the sum of

Rs.2,75,000/- and sum of Rs.10,000/-

imposed as fine towards the State is

hereby set aside.



            iii.      Entire amount of Rs.2,75,000/- is to be

                      paid     as     compensation        to   the

                                            NC: 2024:KHC:24727