Karnataka High Court

Chethana vs Sri Madhusudan on 4 June, 2024

Author: V Srishananda

Bench: V Srishananda

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                                               NC: 2024:KHC:18932
                                          CRL.RP No. 313 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. 313 OF 2021
              BETWEEN:

                 CHETHANA,
                 W/O RAJASHEKARA REDDY
                 AGE ABOUT 40 YEARS
                 NO B-2G, 'AKRUTI AURA SPRING',
                 VEERANJANEYA TEMPLE CROSS,
                 NARAYANAPPA GARDEN, WHITE FIELD
                 BENGALURU - 560 066
                                                ...PETITIONER
              (BY SRI. NANJUNDARADHYA B G., ADVOCATE)
Digitally
signed by R   AND:
MANJUNATHA
Location:
HIGH COURT       SRI. MADHUSUDAN
OF
KARNATAKA        S/O B. VENAKTAPA,
                 AGED ABOUT 42 YEARS,
                 NO.2, GANESHA TEMPLE CROSS,
                 THOKAPPA MUDALIAR STREET,
                 SHIVAJINAGAR,
                 BENGALURU - 560 001
                                                ...RESPONDENT
              (BY SRI. BHARATH KUMAR V., ADVOCATE)
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                                            NC: 2024:KHC:18932
                                     CRL.RP No. 313 of 2021




     THIS CRL.RP IS FILED U/S.397 R/W 401 OF
CR.P.C PRAYING TO A. SET ASIDE THE JUDGMENT
DATED 30.05.2020 PASSED BY THE LEARNED LX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGLAORE     (CCH-61)  N   CRL.A.NO.1054/2017
CONFIRMING THE JUDGMENT DATED 28.06.2017
PASSED BY THE LEARNED XV ACMM, BANGALORE IN
C.C.NO.10440/2016 CONVICTING THE PETITIONER
FOR THE OFFENCE P/U/S 138 OF N.I ACT AND
CONSEQUENTLY.

    THIS PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
                          ORDER

Heard Sri.Nanjundaradhya B. G., learned counsel for

the 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.10440/2016 dated 28.06.2017, who has

been convicted for the offence punishable under Section

138 of the Negotiable Instruments Act which was

confirmed in Criminal Appeal No.1054/2017 vide judgment

dated 30.05.2020.

NC: 2024:KHC:18932

3. Brief facts of the case which are utmost

necessary for the disposal of the present revision petition

are as under:

Accused passed on two cheques dated 22.12.2015

and 23.12.2015 for a sum of Rs.1,00,000/- each, which on

presentation for encashment came to be dishonored with

an endorsement 'funds insufficient'. Thereafter, legal

notice was issued and same was served on the accused.

There is no compliance but there was a reply denying the

transaction and the cheques did not cover any legally

recoverable debt. Therefore, the complainant filed a

complaint against the accused before the learned Trial

Magistrate 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.

NC: 2024:KHC:18932

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

complainant got examined as P.W.1 and relied on 07

documents which were exhibited and marked as Exs.P.1 to

Ex.P.7 comprising of two original cheques as Exs.P.1 and

2, signatures of the accused as Exs.P.1(a) and Ex.P.2(a),

two bank endorsements as Exs.P.3 and 4, copy of the

legal notice as Ex.P.5, postal receipt as Ex.P.6 and reply

notice as Ex.P.7.

6. In order to rebut the evidence of the

complainant, accused got examined as D.W.1 and relied

on 05 documentary evidence comprising of five cheques as

Exs.D.1 to 5.

7. Thereafter, the accused's statement as

contemplated under Section 313 of Cr.P.C. was recorded

and arguments were heard.

8. Subsequent thereto, learned Magistrate heard

the parties and on consideration of the material evidence

placed on record, disbelieved the version of the accused

NC: 2024:KHC:18932

that actually, seven cheques have been given by the

accused as security and five cheques were returned vide

Exs.D.1 to Ex.D.5. Remaining two cheques which were

retained by the complainant was misused by the

complainant and convicted the accused for the offence

punishable under Section 138 of the Negotiable

Instruments Act and ordered fine for a sum of

Rs.2,00,000/-, out of which Rs.1,95,000/- was payable as

compensation to the complainant and Rs.5,000/- is to be

paid towards the defraying expenses of the State and also

imposed simple imprisonment for a period of six months.

9. Being aggrieved by the same, the accused filed

an appeal before the First Appellate Court in Criminal

Appeal No.1054/2017.

10. Learned Judge in the First Appellate Court after

securing the records, heard the parties in detail. After

reconsidering the material evidence placed on record,

dismissed the appeal filed by the accused and confirmed

the order of conviction and sentence.

NC: 2024:KHC:18932

11. Being aggrieved by the same, the revision

petitioner is before this Court.

12. Reiterating the grounds urged in the revision

petition, Sri.Nanjundaradhya B. G., learned counsel for the

revision petitioner vehemently contended that both the

Courts have not properly appreciated the material

evidence on record about the misuse of the cheques,

retained by the complainant and wrongly convicted the

accused. Thus, sought for allowing the revision petition.

13. Respondent though served with the notice,

remained absent.

14. In view of the rival contentions of the parties,

this Court perused the material on record meticulously.

15. On such perusal of the material on record, the

cheques marked at Exs.P.1 and 2 contains the signature of

the accused. Therefore, initial presumption that the

cheque is issued by the accused in favour of the

NC: 2024:KHC:18932

complainant for the valuable consideration is discharged

by the complainant.

16. No doubt, it is a rebuttable presumption.

Therefore, accused has stepped into the witness box and

lead the oral evidence. Accused placed on record five

cheques which were marked at Exs.D.1 to Ex.D.5.

According to the theory of the accused, seven cheques

were given by the accused to the complainant towards the

security in respect of the financial transaction that the

accused had with the complainant and after clearing the

entire financial dues of the accused, five cheques were

only returned by the complainant and remaining two

cheques were retained by the complainant and same has

been misused.

17. If the same was misused, atleast after the

appearance of the accused before the Trial Court or at the

time of reply, accused should have taken necessary action

in filing the police complaint against the complainant for

NC: 2024:KHC:18932

the alleged misuse. No such positive action has been taken

by the accused.

18. Under such circumstances, the evidence placed

on record by the accused was held not sufficient to rebut

the presumption available to the complainant. Therefore,

conviction recorded by the learned Trial Magistrate and

confirmed by the learned Judge in the First Appellate Court

needs no interference. However, in respect of the fine

amount, sum of Rs.5,000/- is ordered by the learned Trial

Magistrate to be paid towards the defraying expenses of

the State, this Court has to interfere.

19. Since, no State machinery is involved in the

matter as the dispute is privy to the parties, awarding sum

of Rs.5,000/- as the fine amount towards the State needs

to be set aside.

20. Accordingly, the following:

NC: 2024:KHC:18932

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, awarding fine

of Rs.2,00,000/- and simple imprisonment for a

period of six months, modified by the First

Appellate Court for a period of two months is

further modified as under:

a. Accused shall pay the fine amount of

Rs.2,00,000/- to the complainant and

same is to be appropriated as

compensation to the complainant.

b. If the said amount of Rs.2,00,000/- is

paid, accused need not under go any

imprisonment.

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NC: 2024:KHC:18932

c. If the accused fails to pay sum of

Rs.2,00,000/-, accused shall under go

simple imprisonment for a period of

two months.

d. Sum of Rs.5,000/- awarded by the

learned Trial Magistrate confirmed by

the First Appellate Court towards the

defraying expenses of the State is

hereby set aside.