Karnataka High Court
Smt. M Manjula vs Sri Dharmi Chand Jain on 3 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:18918
CRL.RP No. 1072 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.1072 OF 2015
BETWEEN:
SMT M MANJULA
W/O S.SHIVASHANKER,
AGED ABOUT 60 YEARS,
R/AT NO.4, NORTH PARK ROAD,
SHESHADRIPURAM,
OPP.POST OFFICE,
BANGALORE-20
...PETITIONER
(BY SRI MALLIKARJUN.N.K, FOR SRI SAMPATH, ADVOCATES)
AND:
SRI DHARMI CHAND JAIN
S/O NEMICHAND JAIN,
AGED ABOUT 51 YEARS,
R/AT NO.2, 2ND MAIN ROAD,
SESHADRIPURAM,
Digitally BANGALORE-560 020.
signed by R
MANJUNATHA ...RESPONDENT
Location: (BY SRI S.SATEESH, ADVOCATE)
HIGH COURT
OF
KARNATAKA
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYIING TO SET ASIDE THE ORDER PASSED
JUDGMENT BY THE XLV ADDL. CITY CIVIL AND S.J.,
BANGALORE CITY (CCH-55), BANGALORE IN
CRL.A.NO.769/2014 DATED 23.07.2015 AND THE JUDGMENT
OF CONVICTION AND SENTENCE PASSED IN
C.C.NO.29767/2009 BY THE XV A.C.M.M., BANGALORE, DATED
24.06.2014 ACQUITTING THE PETITIONER.
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NC: 2024:KHC:18918
CRL.RP No. 1072 of 2015
THIS CRL.RP, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard Sri Sampath, learned counsel for the petitioner and
Sri B.Sateesh, learned counsel for the respondent.
2. The revision petitioner is the accused who is convicted for
the offence punishable under Section 138 of the Negotiable
Instruments Act, in C.C.No.29767/2009 on the file of the XV
Addl. CMM, Bengaluru, by the Order dated 24.06.2014,
whereunder, accused was required to pay fine of Rs.52,000/- of
which Rs.50,000/- is payable to the complainant as
compensation and Rs.2,000/- to be appropriated as defraying
expenses to the State.
3. Being aggrieved by the said Order of conviction and
sentence, accused filed an appeal on the file of the XLV Addl.
City Civil and Sessions Judge, Bengaluru, (CCH-55) in
Crl.A.No.769/2014 dated 23.07.2015, which came to be
dismissed confirming the Order passed by the learned Trial
Magistrate.
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4. Being aggrieved by the same, accused is before this
Court.
5. Brief facts of the case which are utmost necessary for
disposal of the petition are as under:
Accused is said to have borrowed Rs.50,000/- in the year
2008 as hand loan from the complainant and passed on the
cheque on 05.08.2009 drawn on Canara Bank, Cantonment
Branch, Bengaluru, which, on presentation came to be
dishonoured with an endorsement 'funds insufficient' on
11.09.2009. Thereafter, legal notice came to be issued and
there is no compliance or reply to the legal notice which
necessitate the complainant to file a complaint before the
jurisdictional Magistrate, which on contest, came to be allowed
and the accused has been convicted.
6. Since the accused pleaded not guilty, complainant got
himself examined as P.W.1 and placed on record eight
documents, marked as Exs.P.1 to P.8.
7. In order to rebut the evidence placed on record by the
complainant, accused got herself examined as D.W.1 and it is
her defence that she has signed the Ex.P.1/cheque and handed
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over the said cheque to her husband which has been misused
by the complainant. In order to establish the said fact, accused
did not choose to examine her husband nor taken any steps to
file private complaint or legal notice being issued about misuse
of the cheque.
8. Learned Trial Magistrate, taking note of the above aspects
of the matter and taking note of the fact that the complainant
is a money lender and he has lent a sum of Rs.50,000/- to the
accused after taking the cheque towards repayment, has
convicted the accused as aforesaid.
9. The learned Judge in the First Appellate Court has re-
appreciated the material on record and dismissed the appeal.
10. Learned counsel for the petitioner has contended that
complainant has not proved that he has lent a sum of
Rs.50,000/-.
11. Per contra, learned counsel for the respondent contended
that complainant enjoy the presumption under Section 118 and
Section 139 of the Negotiable Instruments Act and the said
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presumption is not rebutted by placing necessary evidence on
record.
12. It is pertinent to note that accused is a retired Deputy
Manager, KSFC. She is a literate lady and would not have kept
quiet if the cheque is misused, at least after the appearance
before the learned Trial Magistrate. No material evidence is
placed on record for taking positive action in this regard.
13. Under the circumstances, the conviction order passed by
the learned Trial Magistrate confirmed by the First Appellate
Court is just and proper.
14. However, both the Courts have misdirected themselves in
ordering a sum of Rs.2,000/- payable to the State as defraying
expenses, inasmuch as, the lis is privy to the parties and no
State machineries are involved. Accordingly, sentence needs
modification to that extent.
15. Hence, the following:
ORDER
(i) Revision Petition is allowed in part.
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(ii) While maintaining the conviction under
Section 138 of the Negotiable Instruments
Act, imposition of fine of Rs.52,000/- is
modified to Rs.50,000/- and entire sum of
Rs.50,000/- is to be paid as compensation to
the complainant.
(iii) Sum of Rs.2,000/- ordered to be paid to the
State is hereby set-aside.
(iv) Rest of the sentence stands unaltered.
Sd/-
JUDGE
kcm
