Karnataka High Court
Sri M K Ranganatha vs Sri B H Ramachandra on 4 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:18935
CRL.RP No. 442 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. 442 OF 2021
BETWEEN:
SRI. M.K. RANGANATHA
S/O LATE M.D. KRISHNAPPA,
AGED ABOUT 53 YEARS,
R/AT KANTHARAJAPPA VILLAGE,
SHARAVANABELAGOLA HOBLI,
CHENNARAYAPATNA TALUK,
HASSAN DISTRICT - 573 116.
...PETITIONER
(BY SRI. RANGASWAMAIAH R.C., ADVOCATE FOR
SRI. SOMASHEKHARAIAH R P., ADVOCATE)
AND:
SRI. B.H. RAMACHANDRA
S/O LATE HONNE GOWDA,
Digitally
signed by AGED ABOUT 52 YEARS,
MALATESH
KC R/AT NO.5128, 12TH MAIN,
Location: M.S.RAMAIAH LAYOUT,
HIGH
COURT OF BENGALURU 560 073.
KARNATAKA
...RESPONDENT
(BY SRI. MANOJ, ADVOCATE FOR
SRI. ANIL KUMAR R., ADVOCATE)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC
PRAYING TO SET ASIDE THE ORDER DATED 15.12.2020
PASSED BY THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE (CCH-59), BENGALURU IN CRL.A.NO.1010/2019 AND
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CRL.RP No. 442 of 2021
THE ORDER DATED 02.04.2019 PASSED BY THE XXVI
ADDITIONAL C.M.M., BENGALURU IN C.C.NO.26228/2014.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Rangaswamaiah R. C., learned counsel for
Sri.R.P.Somashekharaiah, learned counsel for the revision
petitioner and Sri.Manoj, learned counsel for Sri.Anil
Kumar R., learned counsel for the respondent.
2. The present revision petition is filed by the
accused challenging the order of conviction and sentence
passed in CC No.26228/2014, who has been convicted for
the offence punishable under Section 138 of the
Negotiable Instruments Act which was confirmed in
Criminal Appeal No.1010/2019.
3. Brief facts of the case which are utmost
necessary for the disposal of the present revision petition
are as under:
A complaint came to be filed by the complainant
against the accused on the ground that accused issued a
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cheque bearing No.469880 dated 17.10.2013 for a sum of
Rs.7,20,000/- drawn on State Bank of Mysore, Hunsur
Branch, Mysore District, which on presentation came to be
dishonored with an endorsement 'funds insufficient'.
Thereafter, the legal notice came to be issued and same
was sent by registered post, acknowledgment due.
Though the demand notice was sent to two addresses, in
both the addresses, legal notices were not served and
returned with an endorsements 'not available' and 'not
claimed'. There was no compliance nor reply to the
notice. 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 6
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documents which were exhibited and marked as Exs.P.1 to
Ex.P.6.
6. In order to rebut the evidence placed on record
by the complainant, accused got examined as D.W.1,
wherein he denied that the very issuance of the cheque
and same is for the legally recoverable debt.
7. The Trial Court recorded the accused's
statement and heard the arguments of the parties and
convicted the accused for the aforesaid offence and
enforced fine in a sum of Rs.8,00,000/-, out of which
Rs.7,90,000/- was ordered to be paid as compensation to
the complainant and balance sum of Rs.10,000/- is
ordered to be remitted to the State towards the defraying
expenses.
8. Being aggrieved by the said judgment of the
Trial Court, the accused filed an appeal before the First
Appellate Court in Criminal Appeal No.1010/2019.
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9. Learned Judge in the First Appellate Court after
securing the records and hearing the parties, dismissed
the appeal filed by the accused by confirming the
judgment passed by learned Trial Magistrate.
10. Being aggrieved by the same, the revision
petitioner is before this Court.
11. Reiterating the grounds urged in the revision
petition, Sri.Rangaswamaiah R., learned counsel for the
petitioner vehemently contended that the cheque issued
by the accused as a security has been misused by the
complainant and learned Trial magistrate did not notice
the said aspect of the matter that there is no legally
recoverable debt and sought for allowing the revision
petition.
12. Per contra, Sri.Anil Kumar R., learned counsel
for the respondent/complainant supported the impugned
judgment.
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13. In view of the rival contentions of the parties,
this Court perused the material on record meticulously.
14. On such perusal of the material on record, it is
crystal clear that Ex.P.1 is signed by the accused and
there is no dispute as to the signature found in Ex.P.1.
15. Whenever a cheque is issued wherein, the
signature is admitted, it should be presumed that same is
for consideration as is found in Section 118 and 139 of the
Negotiable Instruments Act.
16. No doubt, it is a rebuttable presumption. In
order to rebut the said presumption, accused has chosen
to examine himself as D.W.1 and has come with a story
that he was working in Periapatna and there was a tendor
in that regard and in that regard the cheque was issued.
According to him, there was no legally recoverable debt for
which the cheque was issued and same is misused by the
complainant.
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17. In order to advance the said theory, except the
oral testimony of the accused, there is no material
evidence on record.
18. Under such circumstances, learned Trial Judge
noticed that the evidence placed on record by the accused
is a self serving statement and said evidence did not rebut
the presumption available to the complainant and
convicted the accused.
19. Learned Judge in the First Appellate Court after
reconsidering the material evidence on record, confirmed
the order of the learned Trial Magistrate.
20. This Court, that too in the revisional
jurisdiction, cannot revisit to the factual aspects of the
matter. Suffice it to say that the cheque has been issued
by the complainant having been established and theory
put forward by the accused that same was misused in the
absence of any positive evidence on record placed by the
accused viz., filing of police complaint or atleast issuing a
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legal notice, atleast after the appearance before the
learned Trial Magistrate. As such, this Court is of the
considered opinion that the conviction recorded by both
the Courts needs no interference.
21. However, in respect of the fine amount, sum of
Rs.10,000/- is ordered by the learned Trial Magistrate to
be paid towards the defraying expenses of the State, this
Court has to interfere as the lis is privy to the parties and
no State machinery is involved.
22. Under such circumstances, directing sum of
Rs.10,000/- to be paid as the defraying expenses to the
State needs to be interfered by this Court.
23. Accordingly, the following:
ORDER
i. Revision petition is allowed in part.
ii. While maintaining the order of conviction
of the accused for the offence under
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Section 138 of the Negotiable Instruments
Act, ordering sum of Rs.10,000/- to be
paid to the State as fine amount, towards
the defraying expenses is hereby set
aside.
iii. Rest of the sentence stands unaltered.
Sd/-
JUDGE
KAV
