Karnataka High Court

Smt. J Manjula vs Mahadevu on 6 June, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                      NC: 2024:KHC:19629
                                                 CRL.RP No. 1184 of 2018




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 6TH DAY OF JUNE, 2024

                                     BEFORE
                   THE HON'BLE MR JUSTICE V SRISHANANDA
             CRIMINAL REVISION PETITION NO. 1184 OF 2018
            BETWEEN:
                  SMT. J MANJULA
                  D/O JAYAMMA
                  AGED ABOUT 33 YEARS,
                  R/AT NO.312O, 8TH CROSS
                  R P ROAD, NANJANAGUD
                  MYSORE DISTRICT-571 301
                                                            ...PETITIONER
            (BY SRI. CHANDRASHEKARA K A., ADVOCATE)

            AND:
                  MAHADEVU
                  S/O LATE LINGAPPA
                  AGED ABOUT 33 YEARS,
                  R/AT NO.1128
Digitally         KESARE 3RD STAGE
signed by
MALATESH          KALPAVRUKSHA NAGAR,
KC
                  MYSORE-570 023
Location:
HIGH                                                       ...RESPONDENT
COURT OF
KARNATAKA   (BY SRI. H.M. MANJESH, ADVOCATE -ABSENT)

                   THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
            CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING
            THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
            THE JUDGMENT AND ORDER DATED 17.04.2018 PASSED BY
            THE     V   ADDITIONAL   I   CIVIL    JUDGE,    MYSURU    IN
            C.C.NO.198/2015 AND CONFIRMED BY THE II ADDITIONAL
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                                            NC: 2024:KHC:19629
                                      CRL.RP No. 1184 of 2018




SESSIONS JUDGE, MYSURU IN CRL.A.NO.99/2018 DATED
06.10.2018 AND ACQUIT THE PETITIONER/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENTS ACT.

     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

THE COURT MADE THE FOLLOWING:


                            ORDER

Heard Sri.K.A.Chandrashekara, learned counsel for

petitioner. None present on behalf of the respondent.

2. Revision petition is by the accused challenging the

order of conviction passed in C.C.No.198/2015 confirmed

by the First Appellate Court in Crl.A.No.99/2018.

3. Facts which are utmost necessary for disposal of

the revision petition are as under:

Accused issued a cheque in a sum of

Rs.4,50,000/- towards the legally recoverable debt which

on presentation came to be dishonoured and there was no

compliance to the callings of the legal notice but an

NC: 2024:KHC:19629

untenable reply was sent which constrained the

complainant to file a complaint under Section 200 Cr.P.C

alleging the offence punishable under Section 138 of the

Negotiable Instruments Act.

4. Learned trial Magistrate took cognizance of the

offence alleged against the accused and secured the

presence of the accused. Plea was recorded. Accused

pleaded not guilty and therefore trial was held.

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

complainant got himself examined as PW-1 and placed on

record 15 documents which were exhibited and marked as

Ex.P1 to P15 comprising of dishonoured cheque, bank

endorsement, legal notice, postal acknowledgement, reply

notice, certified copy of the statement of charge sheet

witnesses in another criminal case, order passed therein,

RTC extract etc.

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6. On behalf of the accused, one document was

confronted to PW-1 during the course of cross examination

namely bank receipt which was marked as Ex.D-1.

7. Except marking Ex.D-1 in the cross examination

of PW-1, for the reasons best known to the accused, he

did not step into the witness box to have his say in the

matter.

8. Learned trial Judge recorded the accused

statement as contemplated under Section 313 Cr.P.C and

thereafter heard the parties and convicted the accused for

the offence punishable under Section 138 of the

Negotiable Instruments Act and awarded fine amount of

Rs.4,55,000/- out of which Rs.4,50,000/- to be paid as

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

to be appropriated towards the defraying expenses of the

State.

9. Being aggrieved by the same, accused preferred

an appeal before the District Court in Crl.A.No.99/2018.

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10. Learned Judge in the First Appellate Court

secured the records and after hearing the arguments of

both sides, dismissed the appeal filed by the accused and

confirmed the order of provisional sentence.

11. Being further aggrieved by the same, accused is

before this Court in this revision petition.

12. Sri.K.A.Chandrashekar, learned counsel for

revision petitioner reiterating the grounds urged in the

revision petition, vehemently contended that both the

courts have not appreciated the material evidence on

record and infact the complainant and accused were

working in the same office and at that juncture on the part

of friendship a cheque was parted away by the accused in

favour of the complainant which has been misused by the

complainant and there is no legally recoverable debt and

as such, the trial Magistrate ought not to have convicted

the accused and learned Judge in the First Appellate Court

did not appreciate this aspect of the matter in proper

perspective.

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13. He also pointed out that the complainant did not

possess the financial capacity to lend Rs.4,50,000/- as

loan to the accused and therefore, sought for allowing the

revision petition.

14. Counsel for respondent absent today.

15. In the light of the arguments put forth on behalf

of the petitioner, this Court perused the material on record

meticulously. On perusal of the material on record it is

crystal clear signature found on the cheque is that of the

accused. Same is marked as Ex.P1(a). Cheque is

dishonoured with an endorsement as "Funds Insufficient".

16. The complainant having deposed about said

aspect of the matter, based on oral testimony and

documentary evidence, he has discharged the initial

burden so as to avail the benefit of presumption available

to the complainant under Section 139 of the Negotiable

Instruments Act.

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17. Nodoubt said presumption is a rebuttable

presumption. In order to rebut the presumption, for the

reasons best known accused did not step into the witness

box.

18. Law contemplates under Sections 118 and 139 a

Negotiable Instrument is presumed to be issued for a

consideration.

19. Therefore, question of financial capacity of the

complainant cannot be questioned unless there is a contra

evidence placed on record by the accused.

20. In the case on hand, in the absence of any

contra evidence except marking Ex.D-1 -Bank receipt, the

trial Magistrate disbelieved the case of the accused and

exercised the discretion and raised the presumption in

favour of the complainant as is available under Section

139 of the Negotiable Instruments Act and convicted the

accused.

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21. Insofar the alleged misuse also there is no

positive action taken by the accused either by lodging the

police complaint or by issuing legal notice or such other

method as a normal prudent person would take in such

circumstances.

22. The said aspect of the matter is reappreciated by

the learned Judge in the First Appellate Court while

dismissing the appeal of the accused.

23. Taking note of these aspects of the matter, this

Court is of the considered opinion that the conviction

recorded by the trial Magistrate as affirmed by the First

Appellate Court does not suffer from any serious legal

infirmity or error of jurisdiction so as to interfere with the

order in this revisional jurisdiction.

24. Having said thus, this Court has noticed that the

trial Magistrate has imposed a sum of Rs.5,000/- fine

towards the defraying expenses of the State.

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25. Admittedly the lis is between two private parties

and as such, imposing Rs.5,000/- towards defraying

expenses of the State cannot be countenanced in law and

the same needs to be interfered with in this revision

petition. Accordingly following:

ORDER

1. Revision Petition allowed in part by maintaining

conviction of the accused for the offence punishable

under Section 138 of the Negotiable Instruments Act.