Karnataka High Court
Sri Sathya Bhushan S vs Sri Karthik A R on 26 July, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:30227
CRL.RP No. 750 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 750 OF 2021
BETWEEN:
SRI. SATHYA BHUSHAN S.,
S/O LATE SRINATH R.S.,
AGED ABOUT 39 YEARS,
RESIDING AT NO.983,
8TH MAIN, GOKULAM, IIIRD STAGE,
MYSURU - 570 002.
...PETITIONER
(BY SRI. SRINIVAS S V., ADVOCATE)
AND:
SRI. KARTHIK A.R.,
S/O MR. A.C.RAGHURAM RAJU,
AGED ABOUT 25 YEARS,
Digitally
signed by RESIDING AT NO.68,
MALATESH SRI DURGA NILAYA,
KC GOVINDAPPA ROAD,
Location:
HIGH BASAVANAGUDI,
COURT OF BENGALURU - 560 004.
KARNATAKA ...RESPONDENT
(BY SRI. K.C.SUDARSHAN., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C.,
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER DATED 02.03.2020 PASSED BY THE LXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN
-2-
NC: 2024:KHC:30227
CRL.RP No. 750 of 2021
CRL.A.NO.2054/2018 CONFIRMING THE JUDGMENT AND
ORDER DATED 05.09.2018 PASSED BY THE XXII ACMM,
BANGALORE IN C.C.NO.9804/2017 AND CONSEQUENTLY
ACQUIT THE PETITIONER.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Srinivas S.V., learned counsel for the petitioner
and Sri K.C. Sudarshan, learned counsel for the respondent.
2. The accused who suffered an order of conviction for
the offence punishable under Section 138 of Negotiable
Instruments Act ('NI Act' for short) in CC No.9804/2017
confirmed in Crl.A.No.2054/2018 has preferred this revision
petition.
3. The facts in brief which are utmost necessary for
disposal of the revision petition are as under;
A complaint came to be lodged under Section 200 of
Cr.PC alleging commission of the offence punishable under
NC: 2024:KHC:30227
Section 138 of NI Act by the complainant against the accused.
The complaint averments would reveal that the complainant is
an Entrepreneur involved in several business in Bengaluru and
other places and the accused was incharge of running a
Computer Software Application business in the Company of the
complainant and he was looking after the business activities.
In the said activities, accused became familiar with the
complainant and requested the father of the complainant who is
one of the Director of the Company for advancing him a sum of
Rs.25 lakhs for his legal necessities. Accepting the request
made by the accused, the complainant advanced a sum of
Rs.10,00,000/- on various dates. The accused after availing
the loan, failed to return the same and on consistent demands,
passed on two cheques bearing Nos.211033 and 211034 dated
05.10.2016 in a sum of Rs.5 lakhs each drawn on State Bank of
India, Hebbal Industrial Area Branch, Metagalli Post, Mysore,
which on presentation came to be dishonoured with an
endorsement 'Funds Insufficient'. Legal notice was issued by
the complainant to the accused by a registered post which has
been returned unserved. Thereafter, the complainant sought
for action.
NC: 2024:KHC:30227
4. The learned trial Magistrate after considering the
complaint and after necessary formalities, summoned the
accused and recorded the pleadings. Accused pleaded not
guilty, therefore, trial was held.
5. In order to prove the case of the complainant, the
complainant got examined himself as PW-1 and placed on
record as many as 8 documents comprising of dishonored
cheques, Bank Endorsement, Legal Notice, Postal Receipt,
Unserved Cover, Statement of Account pertaining to Yes Bank
Limited, Statement of Account pertaining to Smt. Prema Raghu.
6. Detailed cross-examination of PW-1 did not yield
any positive materials so as to disbelieve the version of the
complainant, nor dislodged the presumption available under
Section 139 of NI Act.
7. Thereafter, statement of the accused as is
contemplated under Section 313 of Cr.PC was recorded,
wherein the accused has denied all the incriminating
circumstances.
NC: 2024:KHC:30227
8. To rebut the presumption available to the
complainant, the accused got himself examined as DW-1 and
placed on record 11 documentary evidence comprising of copy
of Form VAT 7, copy of e-TDS Intermediary, copy of Shipped
Payment Information, Order Summary, printout copies of Order
Confirmation and Proforma Invoice, Hotel Bill, Statement of
Account of the accused, Notarised copy of Assignment and
Transfer Agreement.
9. Thereafterwards, the learned Judge in the trial
Court heard the parties in detail and noticed that the
presumption available to the complainant under Section 139 of
NI Act was not rebutted by placing cogent and convincing
evidence on record and therefore, convicted the accused for the
offence punishable under Section 138 of NI Act and imposed
fine amount of Rs.10 lakhs and a sum of Rs.9,98,000/- was
ordered to be paid as compensation and a sum of Rs.2,000/-
towards defraying expenses of the State.
10. Being aggrieved by the same, the accused preferred
an appeal before the District Court in Crl.A.No.2054/2018.
NC: 2024:KHC:30227
11. The learned Judge in the First Appellate Court after
securing the records, heard the parties in detail and by the
judgment dated 02.03.2020 dismissed the appeal of the
accused and confirmed the order of conviction and sentence
passed by the trial Magistrate.
12. Being further aggrieved by the same, the accused is
before this Court in this revision.
13. Learned counsel for the revision petitioner
reiterating the grounds urged in the revision petition contended
that both the Courts have not properly appreciated the
probatory value of Exs.D10 and D11 resulting in miscarriage of
justice and sought for allowing the revision.
14. He further contended that the entire case of the
prosecution is a concocted version and the accused had never
intended to borrow any amount from the complainant and there
was no necessity as the accused was financially sound and
therefore, the very basis on which the complaint came to be
filed is per-se incorrect, which would not be sufficient enough
to raise the presumption in favour of the complainant as is
NC: 2024:KHC:30227
contemplated under Section 139 of NI Act and therefore,
sought for allowing the revision petition.
15. Per contra Sri K.C. Sudarshan, learned counsel for
the respondent supports the impugned judgment.
16. 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
complainant has specifically stated that there was a loan
transaction between the accused and the complainant in a sum
of Rs.10 lakhs. Under what circumstances the cheques marked
at Exs.P1 and P2 came to the hands of the complainant is not
even properly explained by the accused.
17. It is pertinent to note that the signatures of accused
found in Exs.P1 and 2 is not in dispute. Therefore, the initial
presumption as is available to the complainant under Section
139 of NI Act has been rightly raised by the learned trial
Magistrate in the impugned judgment which has been properly
re-appreciated by the learned Judge in the First Appellate
Court.
NC: 2024:KHC:30227
18. The defence of the accused is that, to pay the
arrears of remuneration to the extent of Rs.38 lakhs, the
complainant assured to deposit some financial assistance and
that amount of Rs.10 lakhs that has been transferred to the
account of the accused is towards balance of the remuneration
of the accused to be received from the Company for which the
father of the complainant is a Director. Ex.D11 shows the
signature of the complainant available in Ex.D11 and therefore,
there was no loan as is contended by the complainant.
19. The trial Magistrate has clearly referred to cross-
examination of DW-1 in this regard and specifically noted that
the accused was not in a position to find out what amount is to
be received by the Company where the complainant is one of
the Director and what amount is to be paid as remuneration to
the accused. In other words, what exactly the amount of
remuneration that was due from the complainant or the
Company for which the complainant is a Director is not
established by placing cogent and convincing evidence on
record.
NC: 2024:KHC:30227
20. Even if it is so, the question of set off or the counter
claim is alien to the criminal proceedings. If the contention of
the accused is that he has to get the remuneration from the
Company for which the complainant is one of the Director, it is
always open for him to file necessary proceedings and recover
the same in accordance with law.
21. At any rate, the explanation offered by the accused
that the sum of Rs.10 lakhs received by him from the
complainant is towards the remuneration that he has to receive
from the Company having not been established by placing
cogent and convincing evidence on record, the conviction of the
accused for the offence punishable under Section 138 of NI Act
is just and proper and requires no interference by this Court,
that too, in the revisional jurisdiction.
22. Having said thus, it is noticed that the learned trial
Magistrate has imposed a sum of Rs.2,000/- as fine amount
towards defraying expenses of the State which has been
confirmed by the First Appellate Court needs interference as lis
is between the parties and no State is involved. Accordingly,
the following;
- 10 -
NC: 2024:KHC:30227
ORDER
i. Revision petition is allowed-in-part.
ii. By maintaining conviction of the accused for
the offence punishable under Section 138 of NI
Act confirmed by the First Appellate Court, the
fine amount of Rs.10 lakhs is reduced to
9,98,000/- and the entire fine amount of
Rs.9,98,000/- is to be paid as compensation to
the complainant on or before 31.08.2024,
failing which, the accused shall undergo simple
imprisonment for a period of one year.
iii. The fine amount of Rs.2,000/- ordered by the
trial Magistrate confirmed by the First Appellate
Court is hereby set aside.
Ordered accordingly.
Sd/-
(V SRISHANANDA)
JUDGE
PN
