Karnataka High Court
Shashidhar. J. M vs Smt. Vidyashruthi P. Lamani on 4 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:18931
CRL.RP No. 379 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 379 OF 2021
BETWEEN:
SRI. SHASHIDHAR J.M,
S/O MALLIKARJUNA JOGA DINAKAR,
AGED ABOUT 25 YEARS,
RESIDING AT NO.529,
BRAHMAPUTRA RIVER ROAD,
NEAR MADDURAMMA TEMPLE,
BANGALORE SOUTH - 560 019.
...PETITIONER
(BY SRI. LAKSHMIKANTH K, ADVOCATE)
AND:
SMT. VIDYASHRUTHI P. LAMANI,
W/O LATE PRAKASH B. LAMANI,
AGED ABOUT 29 YEARS,
R/AT NO.503, B - BLOCK, 5TH FLOOR,
Digitally
signed by SAI SUMUKA APARTMENT,
MALATESH 6TH CROSS, SHIVA LAYOUT,
KC
Location:
ULLALA MAIN ROAD,
HIGH BANGALORE - 560 056.
COURT OF ...RESPONDENT
KARNATAKA
(RESPONDENT SERVED)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
SET ASIDE THE ORDER DATED 20.07.2019 PASSED BY THE
XXII ADDL., XXXVII-ACMM AND BENGALURU (SCCH-8) IN
C.C.NO.5361/2018 AND CONFIRMED BY THE JUDGMENT
DATED 21.10.2020 PASSED BY THE LXIV ADDITIONAL CITY
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NC: 2024:KHC:18931
CRL.RP No. 379 of 2021
CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-65) IN CRL.A.
NO. 1767/2019.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Lakshmikanth K., learned counsel for the
revision petitioner. None present on behalf of the
respondent.
2. The present revision petition is filed by the
accused challenging the order of conviction and sentence
passed in CC No.5361/2018 dated 20.07.2019, who has
been convicted for the offence punishable under Section
138 of the Negotiable Instruments Act which was
confirmed in Criminal Appeal No.1767/2019 dated
21.10.2020.
3. Brief facts of the case which are utmost
necessary for the disposal of the present revision petition
are as under:
Accused passed on a cheque bearing No.000040
dated 19.09.2018 for a sum of Rs.8,00,000/- to the
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complainant drawn on State Bank of India, towards the
legally recoverable debt, which on presentation came to be
dishonored with an endorsement 'funds insufficient'. Legal
notice came to be issued and same was not complied nor
replied by the accused. Therefore, the complainant filed a
complaint against the accused under Section 138 of the
Negotiable Instruments Act.
4. The learned Trial Magistrate after taking
cognizance, secured the presence of the accused and
recorded the plea. Accused pleaded not guilty. Therefore,
the trial was held.
5. In order to prove the case of the complainant,
complainant got examined as P.W.1 and relied on 5
documentary evidence which were exhibited and marked
as Exs.P.1 to Ex.P.5.
6. Despite granting sufficient opportunity, accused
did not cross-examine P.W.1 nor placed counter evidence
on record.
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7. Accordingly, the learned Trial Magistrate
recorded that there is no evidence on the part of the
defence and heard the arguments of the parties and
convicted the accused for the aforesaid offence and
enforced fine in a sum of Rs.8,25,000/-, out of which
Rs.8,20,000/- is to be paid as compensation and
Rs.5,000/- is ordered to be remitted to the State towards
the defraying expenses.
8. Further, being aggrieved by the said judgment
of the Trial Court, the accused filed an appeal before the
First Appellate Court in Criminal Appeal No.1767/2019.
Same was considered on merits and came to be dismissed
vide judgment dated 21.10.2020.
9. Being aggrieved by the same, the revision
petitioner is before this Court.
10. Reiterating the grounds urged in the petition,
Sri.Lakshmikanth, learned counsel for the petitioner
vehemently contended that the learned Trial Magistrate
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did not comply the principles of natural justice and concept
of fair trial. Therefore, sought for allowing the revision
petition.
11. Respondent though served with the notice,
remained absent.
12. In view of the rival contentions of the parties,
this Court perused the material on record meticulously.
13. On such perusal of the material on record, it is
crystal clear that despite granting sufficient time, accused
did not cross-examine P.W.1 and therefore, learned Trial
Magistrate was constrained to take it that there is no
cross-examination on behalf of the defence.
14. Further, there was no defence evidence placed
on record. Under such circumstances, learned Trial
Magistrate noting the fact that signature on the dishonored
cheque is that of the accused, drew the presumption
available to the complainant under Section 139 of the
Negotiable Instruments Act and convicted the accused for
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the offence punishable under Section 138 of the
Negotiable Instruments Act which has been rightly
appreciated by learned Judge in the First Appellate Court.
15. However, both the Courts have misdirected
themselves in ordering sum of Rs.5,000/- payable to the
State as the defraying expenses.
16. Admittedly, the lis is between the two private
parties and therefore, no State machinery was involved.
Accordingly, imposing sum of Rs.5,000/- as the defraying
expenses towards the State is incorrect. The cheque itself
is in a sum of Rs.8,00,000/-. The complainant has not
chosen to file any revision petition seeking enhancement
of the fine amount.
17. Under such circumstances, directing sum of
Rs.5,000/- to be paid as the defraying expenses to the
State needs to be interfered by this Court.
18. Accordingly, the following:
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ORDER
i. Revision petition is allowed in part.
ii. While maintaining the order of conviction
of the accused for the offence under
Section 138 of the Negotiable Instruments
Act, the fine amount is reduced to
Rs.8,20,000/- and ordering sum of
Rs.5,000/- to be paid to the State,
towards the defraying expenses is hereby
set aside.
iii. Rest of the sentence stands unaltered.
Sd/-
JUDGE
