Karnataka High Court
Sri Srikanthamurthy A H vs Sri Gururaj M on 5 June, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 469 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 469 OF 2021
BETWEEN:
SRI. SRIKANTHAMURTHY A. H,
S/O HANUMAIAH,
AGED ABOUT 47 YEARS,
RESIDING AT NO.111,
MIG KHB COLONY,
CHAMARAJANAGAR TOWN-571 313.
REPRESENTED THROUGH THE KARNATAKA,
STATE LEGAL SERVICE AUTHORITY.
...PETITIONER
(BY SRI. ANKITH JAIN, ADVOCATE FOR
SRI. GAUTAM SHREEDHAR BHARADWAJ, ADVOCATE)
AND:
SRI. GURURAJ M
Digitally signed
by D HEMA S/O D MALLAIAH,
Location: HIGH AGED ABOUT 63 YEARS,
COURT OF RESIDING AT NO.2295,
KARNATAKA
12TH MAIN ROAD,
VIJAYANAGAR II STAGE,
MYSURU-570 022.
...RESPONDENT
(BY SRI. PRITHVI KIRAN SETTY, ADVOCATE)
THIS CRL.RP FILED UNDER SECTION 397 R/W 401 CR.P.C
BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET
ASIDE THE JUDGMENT DATED 13.03.2020 PASSED BY THE I
ADDITIONAL SESSIONS JUDGE, MYSURU IN
CRL.A.NO.292/2019 CONFIRMING THE JUDGMENT DATED
23.08.2019 PASSED BY THE I ADDITIONAL I CIVIL JUDGE AND
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CRL.RP No. 469 of 2021
J.M.F.C., MYSURU IN C.C.NO.790/2016 BY CONVICTING THE
PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION
138 OF N.I. ACT AND DIRECTING THE PETITIONER TO PAY A
FINE OF RS.1,10,600.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Ankith Jain, learned counsel for the
petitioner.
2. The present revision petition is filed by the
accused, who has been convicted for the offence
punishable under Section 138 of the Negotiable
Instruments Act, 1881 (for short 'the N.I. Act) in
C.C.No.790/2016 confirmed by the I Additional Session
Judge, Mysuru in Crl.A.No.292/2019.
3. Facts in brief, which are utmost necessary for
disposal of the revision petition are as under:
4. The complaint came to be lodged under Section
200 Cr.P.C. contending that the complainant has rented
out his residential house bearing No.111, MIG, Housing
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Board Colony, Chamarajanagar, to the accused. Later on,
two cheques cheques were tendered in a sum of `62,000/-
and `23,600/- towards arrears of rent. Both cheques on
presentation returned with an endorsement 'Insufficient
funds'. Legal notice was issued to the accused. The
accused neither complied the callings of notice nor replied
the same. Therefore, the complainant sought for action
against the accused.
5. The learned trial judge took cognizance of the
offence and then secured the presence of the accused.
Plea was recorded. Accused pleaded not guilty.
6. As such trial was held. In order to prove the
case of the complainant, complainant got examined
himself as PW.1 and placed on record 6 documentary
evidence, which are exhibited and marked as Exs.P1 to P6
comprising of dishonored cheques, copy of the legal
notice, postal receipt and postal acknowledgment.
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7. As against the evidence placed on record by
the complainant, the accused examined himself as DW.1
and placed on record 7 documentary evidence, which are
exhibited and marked as Exs.D1 to D7, comprising of
certified copy of plaint in O.S.No.116/2018, certified copy
of the notice, advance payment receipt and advance sale
receipt, complaint given by the accused to the Manager -
SBI of Mysore, Copy of the rent agreement and
acknowledgment of police.
8. The accused statement as contemplated under
Section 313 of Cr.P.C was also recorded by the leaned trial
Magistrate, wherein the accused has denied all the
incriminatory circumstances. Thereafter, the trial Judge
heard the parties in detail and by considering the oral and
documentary evidence on record, convicted the accused
for the offence punishable under Section 138 of the N.I.
Act. While so convicting the accused, the learned trial
Magistrate has drawn the presumption available under
Section 139 of the N.I. Act, noting the fact that the
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complainant has discharged the initial burden and there is
no dispute that the signature found in Exs.P1 and P2 are
that of the accused. The trial Magistrate also opined that
the defence evidence placed on record was not sufficient
enough to rebut the presumption and theory of misuse of
cheques at Exs.P1 and P2 is not established.
9. Being aggrieved by the same, the accused
preferred an appeal before the District Court in
Crl.A.No.292/2019. The learned Judge in the First
Appellate Court after securing the records and hearing the
parties in detail dismissed the appeal filed by the accused.
Thereafter, the accused is before this Court.
10. Sri. Ankith Jain, learned counsel for the
petitioner reiterating the grounds urged in the petition
contended that in view of the agreement to sell entered
into between the parties, there is no question of payment
of any rent by the accused in favour of the complainant
and therefore very theory of cheques being issued towards
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arrears of rent cannot be believed and the said aspect of
the matter has not been properly considered by both the
Courts and sought for allowing the revision petition.
11. He also pointed out that the copy of the plaint
in O.S.No.116/2018 marked as Ex.D1 clearly shows that
there is a suit for specific performance and the said aspect
of the matter is totally ignored by both the Courts and
sought for allowing the revision petition.
12. The learned counsel for respondent has
engaged the services of learned counsel Sri. Prithvi Kiran
Shetty, is present before the Court and supports the
impugned judgments.
13. In the light of the arguments put forth on behalf
of the revision petitioner, this Court perused the records
including the trial Court records.
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14. On such perusal, it is crystal clear that the
signatures found in Exs.P1 and P2 are the signatures of
the accused-revision petitioner.
15. Ex. D5 is the complaint lodged to the Manager-
SBM Bank by the accused.The said complaint is dated
14.12.2015.
16. In the said complaint, the accused has stated
that he has issued the cheque bearing No.723405 in a sum
of `23,600/- and another cheque bearing No.791606 but
he does not remember the amount in the said cheque and
the payee of those cheques has cheated him and
therefore, it should not be honored. In other words, the
said complaint or letter is in the nature of 'Stop payment'.
17. However, the cheques were not dishonored on
the endorsement of the 'Stop payment, but the cheques
were dishonored on the ground of 'Insufficient funds'.
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18. It is now settled principles of law that even for
the Banker to act on the instructions of the 'Stop
Payment', the account holder must keep the sufficient
balance in his account and then instruct the 'Stop
Payment'.
19. The very fact that the accused has given a
letter to his Banker mentioning that the cheques have
been issued in favour of the complainant, the initial burden
cast on the complainant has been duly discharged by the
complainant. The cheques are also not returned with an
endorsement that the signatures do not tally. Under such
circumstances, the presumption as is available to the
complainant under Section 139 of the N.I. Act has to be
drawn in favour of the complainant and the same has been
drawn by the learned trial Magistrate in the impugned
order.
20. Further, it is to be noted that the said
presumption is not absolute and it is a rebuttable
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presumption. The accused took up the responsibility of
rebutting such presumption by examining himself as DW1
and place on record 7 documentary evidence as referred
to supra.
21. According to documentary evidence placed on
record by the accused, there was an agreement to sell
between the parties and in that regard, the suit is pending
before the Civil Judge (Senior Division), Chamarajanagara,
in O.S.No.116/2018. Ex.D1 is the copy of the plaint.
Based on the said plaint, the accused contended that in
view of the agreement of sale, the accused cannot be
treated as a tenant.
22. However, the agreement placed on record by
the accused marked at Ex.D6 shows that there was a rent
agreement between the complainant and the accused.
The said rent agreement is dated 09.12.2015. In the rent
agreement itself there is a mentioning that cheques
bearing Nos.723405 and also 791606 has been issued as
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post dated cheques. Therefore, it is for the accused to
properly explain as to what prevented him from taking
criminal action if there is a misuse of the post dated
cheques. The complainant on the contrary stated that the
cheques are issued towards the arrears of rent. Further,
the case that has been sought to be propounded by the
accused before this Court that there is an agreement to
sell and the same is being the subject matter of suit in
O.S.No.116/2018 is concerned, expressing any opinion by
this Court in this revision petition would definitely hamper
the rights of the parties in the pending civil suit.
23. Suffice to say that the defence evidence placed
on record has been considered in the right perspective by
the learned trial Magistrate and has formed an opinion
that the same did not rebut the presumption available to
the complainant under Section 139 of the N.I. Act.
24. Learned Judge in the First Appellate Court on
re-appreciation of the above material on record, did not
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find any good reasons to upset the finding recorded by the
learned trial Magistrate.
25. This Court in the revision petition, having
regard to the limited scope, cannot form a altogether
different opinion and hold that the cheques were misused
by complainant especially in the absence of any positive
action taken by the accused about the alleged misuse.
26. In that regard, feeble attempt is no doubt made
by the counsel for the petitioner in drawing the attention
of this Court to the police endorsement marked at Ex.D7.
This Court perused the said endorsement meticulously. In
the said endorsement, the accused has sought for taking
action against the complainant for the misuse of cheques
but it is for the enforcement of the agreement to sell.
Therefore, police were justified in issuing an endorsement
that the matter is of the civil in nature and directed the
parties to approach the civil Court.
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27. Thereafter, the accused has approached the
Civil Court for enforcement of the agreement to sell in
O.S.No.116/2018.
28. As such, this Court is of the considered opinion
that the conviction recorded by the trial Magistrate
confirmed by the First Appellate Court needs no
interference.
29. Having said thus, it is noticed that as sum of
Rs.5,000/- is ordered to be confiscated to the State out of
the fine amount of Rs.1,10,600/- in the impugned order of
the learned trial Magistrate confirmed by the first appellate
Court. Since the lis is prevy to the parties and no state
missionary is involved directing the sum of Rs.5,000/- out
of the fine amount to be confiscated to the State needs
interference by this Court. Accordingly, the following:
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ORDER
i. The criminal revision petition is
allowed in part.
ii. While maintaining the conviction of
the accused for the offence punishable under
Section 138 of the N.I. Act, the compensation
amount awarded by the trial Magistrate in a
sum of Rs.1,05,000/- is maintained and balance
fine amount to be confiscated to the State is
hereby set aside.
iii. Rest of the sentence stands unaltered.
Sd/-
JUDGE
AG
