Karnataka High Court

Smt Vijayalakshmi vs Sri C N Nataraj on 25 July, 2024

Author: V Srishananda

Bench: V Srishananda

                                      -1-
                                                 NC: 2024:KHC:29320
                                               CRL.RP No. 1 of 2022




              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. 1 OF 2022
            BETWEEN:

               SMT VIJAYALAKSHMI
               AGED 52 YEARS
               W/O SRI. RAMESH B.M
               NO.6, 4TH MAIN
               BCC LAYOUT, CHANDRA LAYOUT
               BENGALURU - 560 040.
                                                         ...PETITIONER
            (BY SRI. LANKESH L, ADVOCATE)

            AND:

               SRI C. N. NATARAJ
               S/O SRI. NARASIMHA NAIK
               AGED ABOUT 49 YEARS
               RESIDING AT KOTE EXTENSION
               CHIKKAMAGALUR TOWN
               PIN CODE - 577 101.
Digitally
signed by                                            ...RESPONDENT
MALATESH
KC               THIS CRL.RP. IS FILED U/S. 397 R/W 401 OF CR.P.C
Location:   PRAYING TO SET ASIDE THE ORDER DATED 17.02.2020
HIGH        PASSED BY THE COURT OF THE II ADDITIONAL DISTRICT AND
COURT OF    SESSIONS JUDGE, CHIKKAMAGALURU IN CRL.A.NO.168/2019
KARNATAKA   HAVING CONFIRMED THE ORDER DATED 28.06.2019 PASSED
            BY THE 2ND ADDITIONAL CIVIL JUDGE AND J.M.F.C.,
            CHIKKAMAGALURU IN C.C.NO.1474/2016 AND ETC.,

                THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
            ORDER WAS MADE THEREIN AS UNDER:

            CORAM:    HON'BLE MR JUSTICE V SRISHANANDA
                                   -2-
                                                    NC: 2024:KHC:29320
                                                  CRL.RP No. 1 of 2022




                        ORAL ORDER

(PER: HON'BLE MR JUSTICE V SRISHANANDA)

1. Heard Sri.Lankesh L., learned counsel for the

petitioner. Respondent served and unrepresented.

2. Accused who suffered an order of conviction in

C.C.No.1474/2016 confirmed in Crl.A.No.168/2019 for

the offence punishable under Section 138 of Negotiable

Instruments Act, has preferred this revision petition.

3. The facts of the case in brief are as under:

The complainant brought in action for the offence

punishable under Section 138 of the Negotiable

Instruments Act by contending that cheque bearing

No.726857 dated 06.03.2016 in a sum of Rs.4,00,000/-

drawn on Andhra Bank, Poorna Pragna Layout Branch,

Bengaluru came to be dishonored on the ground of

insuffcient funds and there was no compliance of calling to the

notice.

NC: 2024:KHC:29320

4. Learned trial Judge after securing the presence of the

accused recorded the plea. Accused pleaded not guilty.

Therefore, the trial was held.

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

complainant got himself examined as PW-1

and placed on record four documents comprising of

dishonoured cheque, Bank endorsement, legal notice and

return envelop cover.

6. Detailed cross examination of the complainant

with regard to the lending capacity and misuse of cheque

did not yield any positive materials so as to disbelieve the

case of the complainant not to 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

incriminating materials. In order to rebut the

presumption available to the complainant, the accused

NC: 2024:KHC:29320

got examined herself as DW-1 and did not place any

documentary evidence on record.

8. Defence of the accused is that the cheque was actually

given in favour of Smt. Sharadamma and after the death

of Smt. Sharadamma, her son by name Ravindra Prasad

has colluded with the complainant and filed the false case

against the accused and therefore, there was no legally

recoverable debt covered under the Ex.P1-Cheque and

therefore, sought for dismissal of the complaint.

9. Learned Judge after considering the oral and

documentary evidence placed on record, especially, when

the complainant has stated that he had the money to lend

the same to the accused through Ginger business, has

rightly raised the presumption under Section 139 of the

Negotiable Instruments Act and convicted the accused

holding that rebuttable evidence was not sufficient

enough to dislodge the presumption.

10. Learned Judge in the First Appellate Court,

thereafter, dismissed the appeal of the accused in

Crl.A.No.168/2019 by judgment dated 17.02.2020.

NC: 2024:KHC:29320

Subsequent thereto, the accused is before this Court in

this revision petition.

11. Sri.Lankesh L., learned counsel for the revision

petitioner, reiterating the grounds urged in the revision

petition, vehemently contended that complainant is a

total stranger to the accused and it is the Ravindra

Prasad, who is the son of the Smt. Sharadamma has

colluded with the complainant and got foisted a false case

against the accused and sought for allowing the revision

petition.

12. He also pointed out that complainant did not have the

lending capacity to lend the amount which has not been

properly appreciated by the Trial Magistrate and sought

for allowing the revision petition.

13. Respondent though served with the notice,

remained absent. Therefore, this Court perused the

material on record in the light of the argument put forth

on behalf of the revision petitioner.

NC: 2024:KHC:29320

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

crystal clear that there is no dispute that the cheque is

dishonoured with an endorsement funds insufficient and

signature of the accused in the said cheque is not in

dispute.

15. Theory put forward by the accused is that the

cheque was actually handed over to Smt. Sharadamma

and she died. Son of Smt. Sharadamma by name

Ravindra Prasad has colluded with the complainant and

got filed a false case against the accused.

16. If that is so, nothing prevented the accused to summon

Ravindra Prasad and examine on behalf of the accused.

No positive action about the alleged misuse has been

taken by the accused either by filing the criminal

complaint against the Ravindra Prasad or by filing any

other proceedings. In the absence of any such positive

proof placed on record about the alleged misuse, learned

trial Judge was justified in raising the presumption in

favour of the complainant and convicting the accused.

NC: 2024:KHC:29320

17. Learned Judge in the First Appellate Court has

rightly re-appreciated the material evidence on record.

18. This Court, that too, in the revisional jurisdiction, cannot

revisit into the factual aspects in annulling the findings

recorded by both the Courts. Accordingly, conviction is to

be maintained.

19. Having said thus, it is noticed that both the Courts have

erred in imposing sum of Rs.10,000/- as the fine amount

towards the defraying expenses of the State in as much

lis is privy to the parties and State machinery

is involved. Accordingly, the fine amount of Rs.10,000/-

is to be set aside.

20. Hence, the following:

ORDER

i) The criminal revision petition is allowed in

part.

ii) While maintaining the conviction of the

accused for the offence punishable under

Section 138 of N.I Act, fine amount awarded

by the Trial Magistrate confirmed by the

NC: 2024:KHC:29320

First Appellate Court in a sum of

Rs.4,60,000/- is reduced to Rs.4,50,000/-.

iii) The entire amount of Rs.4,50,000/- to be

paid as compensation on or before

31.08.2024, failing which, the petitioner

shall undergo simple imprisonment for a

period of four months.

iv) Amount of Rs.10,000/- awarded towards

defraying expenses of the State is hereby

set aside.

Sd/-

(V SRISHANANDA) JUDGE