Karnataka High Court

Sri. B.H. Lokesh vs Sri. B.M. Chandregowda on 25 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                   NC: 2024:KHC:29368
                                               CRL.RP No. 112 of 2016




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 25TH DAY OF JULY, 2024

                                   BEFORE
                   THE HON'BLE MR JUSTICE V SRISHANANDA
               CRIMINAL REVISION PETITION NO. 112 OF 2016
            BETWEEN:

            SRI. B.H. LOKESH,
            S/O B.M. HANUMANTHARAYAPPA,
            AGED 45 YEARS,
            NO.301 A, SITE NO. 217,
            RANKA ENCLAVE APARTMENTS,
            SADASHIVANAGAR, RMV EXTENSION,
            BANGALORE - 560 080.

                                                        ...PETITIONER
            (BY SRI. VINOD KUMAR M., ADVOCATE)

            AND:

            SRI. B.M. CHANDREGOWDA,
            S/O LATE MUNISWAMAIAH,
Digitally   AGED 56 YEARS,
signed by
MALATESH    NO.804, 18TH CROSS,
KC          5TH BLOCK, HMT LAYOUT,
Location:   VIDHYARANYAPURA,
HIGH        BANGALORE - 560 078.
COURT OF
KARNATAKA                                              ...RESPONDENT
            (BY SRI. M. RAMASWAMY, ADVOCATE)

                 THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
            PRAYING TO SET ASIDE THE JUDGMENT/ORDER OF
            CONVICTION      DATED     20.09.2014      PASSED    IN
            C.C.NO.26471/2007 BY THE XVIII A.C.M.M., BANGALORE AND
            THE JUDGMENT DATED 04.01.2016 PASSED BY THE LXVI
            ADDL. CITY CIVIL AND S.J., BANGALORE (CCH-67) IN
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                                        NC: 2024:KHC:29368
                                    CRL.RP No. 112 of 2016




CRL.A.NO.1133/2014 AND ACQUIT THE PETITIONERS FROM
THE OFFENCE P/U/S 138 OF N.I. ACT.

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM:     HON'BLE MR JUSTICE V SRISHANANDA


                      ORAL ORDER

Heard Sri.Vinod Kumar N., learned counsel for the

revision petitioner/accused No.2 and Sri.M.Ramaswamy,

learned counsel for the respondent/complainant.

2. Revision petition is filed by accused No.2

challenging the order of conviction and sentence passed in

CC No.26471/2007 dated 20.09.2014 on the file of XVIII

Addl. Chief Metropolitan Magistrate, Bangalore for the

offence punishable under Section 138 of the Negotiable

Instruments Act and ordered to pay fine in a sum of

Rs.10,25,000/-, out of which sum of Rs.10,00,000/- was

ordered to be paid as compensation to the complainant

and balance sum of Rs.25,000/- towards the defraying

expenses of the State which was confirmed in Criminal

Appeal No.1133/2014 dated 04.01.2016 on the file of LXVI

Addl. City Civil and Sessions Judge, Bangalore.

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3. Brief facts of the case which are utmost

necessary for disposal of the revision petition are as

under:

3.1. A complaint came to be filed under Section 200

of Cr.P.C. alleging the commission of offence under

Section 138 of the Negotiable Instruments Act by

contending that accused has issued two cheques bearing

No.931837 and another cheque bearing No.931838 in a

sum of Rs.5,00,000/- each, dated 30.12.2006 and

30.01.2007 respectively, drawn on Bank of Baroda, APMC

Yard, Bangalore. The said cheques on presentation came

to be dishonored with an endorsement 'exceeds

arrangements'.

3.2. Thereafter, legal notice was issued. There was

no compliance to the callings of the legal notice.

Therefore, complainant sought for action against the

accused.

4. The learned Trial Magistrate after taking

cognizance, summoned the accused and recorded the

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plea. Accused did not plead guilty. Therefore, trial was

held.

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

complainant got examined himself as P.W.1 and relied on

twenty six documents which were exhibited and marked as

Exs.P.1 to Ex.P.26 comprising of two cheques as Ex.P.1,

signatures of the accused as Exs.P.1(a) and 2(a), two

bank endorsements as Exs.P.3 and 4, office copy of the

demand notice as Ex.P.5, UCP receipt as Ex.P.6, two

unserved legal notices opened in open Court as Exs.P.7

and 8, two postal covers in which unserved legal notices

were kept as Exs.P.7(a) and 8(a), reply as Ex.P.9,

complaint as Ex.P.10, deposition copies of D.W.1 in CC

No.488/2008 as Exs.P.11 and 12, letters issued by Bharat

Oversead Bank as Exs.P.13 to 18, letter addressed to the

Bank as Ex.P.19, five payment made receipts as Exs.P.20

to 24, VRS letter from HMT as Ex.P.25 and document

showing monetary benefits of the complaint as Ex.P.26.

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6. Detailed cross-examination of P.W.1, did not

yield any positive material so as to disbelieve the version

of the complainant nor dislodge the presumption available

to the complainant under Section 139 of the Negotiable

Instruments Act.

7. Thereafter, the learned Trial Magistrate

recorded the accused statement as is contemplated under

Section 313 of Cr.P.C. wherein, accused has denied all the

incriminatory materials.

8. To rebut the presumption available to the

complainant under Section 139 of the Negotiable

Instruments Act, accused No.2 got examined himself as

D.W.1 and did not place any documentary evidence on

record.

9. On conclusion of the recording of evidence,

learned Trial Magistrate heard the parties in detail and

convicted the accused and sentenced as referred to supra.

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10. Being aggrieved by the said order of conviction

and sentence, accused preferred an appeal before the First

Appellate Court in Crl.A.No.1133/2014.

11. Learned Judge in the First Appellate Court after

reconsidering the oral and documentary evidence placed

on record, reappreciated the material evidence, in the light

of the arguments put forth on behalf of the parties and

vide judgment dated 04.01.2016 dismissed the appeal.

12. Being further aggrieved by the same, accused

No.2 is before this Court, in this revision.

13. Reiterating the grounds urged in the revision

petition, Sri.Vinod Kumar N., learned counsel for the

revision petitioner vehemently contended that case of the

complainant is having different versions in the sworn

statement, examination-in-chief and the contents of the

legal notice which clearly establishes that the cheques in

question were not issued towards the legally recoverable

debt but same was stolen away by wife of the complainant

who worked as Director of accused No.1 Company and

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complainant misused the same which has not been

properly appreciated by both the Courts and sought for

allowing the revision petition.

14. He pointed out that there is no proper service of

the legal notice and therefore, taking cognizance of

offence under Section 138 of the Negotiable Instruments

Act by learned Trial Magistrate itself stood vitiated and

sought for allowing the revision petition.

15. He also pointed out that lending capacity of the

complainant was questioned in the cross-examination in

detail by the accused and there was no sufficient material

placed on record by the complainant to establish that he

had the lending capacity to lend the amount of

Rs.10,00,000/- to the accused No.1 - company and

therefore, there is no legally recoverable debt under

Exs.P.1 and 2 and thus, sought for allowing the revision

petition.

16. He further pointed in cross-examination of

P.W1, he has categorically admitted that the amount is not

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lent to accused No.1 - Company but it was lent to accused

No.2 and therefore, the issuance of the cheques by

accused No.1 is incorrect and sought for allowing the

revision petition.

17. Per contra, Sri.M.Ramaswamy, learned counsel

for the respondent/complainant supports the impugned

judgments.

18. Having heard the parties in detail, this Court

perused the material on record meticulously.

19. On such perusal of the material on record, it is

crystal clear that the signature found in Exs.P.1 and 2 are

not in dispute.

20. The complaint averments would go to show that

the cheques were issued towards the legally recoverable

debt and thereafter, learned Trial Magistrate has taken

cognizance and perused the material evidence on record

especially the documentary evidence placed on record by

the complainant.

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21. The oral and documentary evidence placed on

record by the complainant was sufficient enough to raise

initial presumption in favour of the complainant as is

contemplated under Section 139 of the Negotiable

Instruments Act.

22. The procedure and the reasoning adopted by

the learned Trial Magistrate in the case on hand is in

consonance with the principles of law enunciated in the

case of Rajesh Jain V/s. Ajay Singh reported in 2023

(10) SCC 148.

23. No doubt, said presumption is a rebuttable

presumption. To rebut the presumption, accused No.2 got

examined himself as D.W.1. In his oral evidence, D.W.1

has specifically stated that the cheques were not issued

towards the legally recoverable debt and wife of the

complainant was one of the Directors of the Company and

when accused No.2 was on tour, she was looking after the

affairs of the Company and for smooth running of the

company, he had left few signed cheques and same has

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been given by the wife of the complainant to the

complainant to misuse the same and foist a false case.

24. In the cross-examination, he admits that he is

an Engineering graduate and he is the Managing Director

of accused No.1 - company.

25. He has also stated that the address shown in

the complaint is his same address and he continues to stay

the same address. He admits that if any letter is

addressed to door No.33/1, it would reach him. He also

admits that the accounts of the company was being

audited and he does not remember the relevant year of

audit report.

26. He also admits that there is another case

pending against him in CC No.488/2008 and same is

pending for consideration.

27. In his further cross-examination, he admits that

he had obtained sum of Rs.17,00,000/- from M/s. Digiana

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Computers as loan. He also admits about the pending

criminal case in that regard.

28. With the above evidence on record, the accused

wanted to rebut the presumption available to the

complainant under Section 139 of the Negotiable

Instruments Act. It is pertinent to note that if the wife of

the complainant has misused the cheques vide Exs.P.1 and

2; being an Engineering graduate, accused should have

taken positive action against the wife of the complainant

or the complainant by filing necessary criminal complaint

for the alleged misuse of the cheques. No such action is

forthcoming in that regard.

29. In that regard, Sri.Vinod Kumar N., learned

counsel submits that accused is a close relative of the

complainant and therefore, no criminal action was taken.

Accepting such a submission on behalf of the revision

petitioner would not arise for the simple reason that the

relationship if any, got spoiled because of the present

criminal case and also another criminal case where the

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case is now pending before the First Appellate Court where

the accused has issued the cheque in the personal

capacity and he got acquittal in the said order.

30. Therefore, when there is a specific answer in

the deposition of D.W.1 that the cheques bears the

signatures and it was misused by the wife of the

complainant having not been accepted by the learned Trial

Magistrate, learned Trial Magistrate was justified in

convicting the accused for the offence punishable under

Section 138 of the Negotiable Instruments Act and with

the aid of presumption available to the complainant under

Section 139 of the Negotiable Instruments Act. The said

reasoning recorded by the learned Trial Magistrate is in

consonance with the principles of law enunciated in the

case of Rajesh Jain V/s. Ajay Singh as referred to

supra.

31. Learned Judge in the First Appellate Court on

thorough reappreciation of the material on record,

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concurred with the finding recorded by the learned Trial

Magistrate.

32. This Court, that too, in the revisional

jurisdiction cannot revisit into the factual aspects of the

matter in analying the findings recorded by both the

Courts. Accordingly, order of conviction recorded by the

learned Trial Magistrate confirmed by the First Appellate

Court needs no interference.

33. Having said thus, it is noticed that learned Trial

Magistrate has imposed sum of Rs.10,25,000/- as fine

amount, out of which sum of Rs.10,00,000/- is ordered to

be paid as compensation to the complainant and balance

sum of Rs.25,000/- towards the defraying expenses of the

State cannot be countenanced in law as lis is privy to the

parties and no State machinery is involved. To that extent

impugned judgments needs interference by this Court in

this revision.

34. Accordingly, the following:

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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 Negotiable Instruments

Act, the compensation amount ordered by

the learned Trial Magistrate confirmed by

the First Appellate Court in a sum of

Rs.10,25,000/- is modified to the sum of

Rs.10,00,000/- and sum of Rs.25,000/-

imposed as fine towards the State is

hereby set aside.

iii. Entire amount of Rs.10,00,000/- is to be

paid as compensation to the complainant.

iv. In default of payment fine amount,

accused shall undergo simple imprisonment

for a period of two years.