Karnataka High Court
Smt. Sangeetha C S vs Sri. Mohan Kumar N on 7 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:19857
CRL.RP No. 448 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 448 OF 2021
BETWEEN:
1. SMT. SANGEETHA C S
W/O M NOORULLASHARIEF
AGED ABOUT 37 YEARS,
R/AT CHELUR VILLAGE
GUBBI TALUK
TUMKUR DISTRICT
...PETITIONER
(BY SRI. THYAGARAJA S.,ADVOCATE)
AND:
1. SRI. MOHAN KUMAR N
S/O NARAYANAPPA
AGED ABOUT 37 YEARS,
R/AT 133, 18TH B MAIN
Digitally 7TH CROSS, 2ND PHASE,
signed by J P NAGAR, BENGALURU - 560 078
LAKSHMI T ...RESPONDENT
Location: (BY SRI. NANJUNDARADHYA B G., ADVOCATE)
High Court
of
Karnataka THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO A. SET ASIDE THE JUDGMENT AND CONVICTION DATED
11.03.2019 PASSED IN C.C.NO.13926/2017 ON THE FILE OF
THE XVI ACMM, BANGALORE AND SET ASIDE THE ORDER
DATED 07.03.2020 PASSED IN CRL./A.NO.838/2019 ON THE
FILE OF THE LXXV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BANGLAORE (CCH-76) AND CONSEQUENTLY ACQUIT
THE ACCUSED BY ALLOWING THE APPEAL. B. EXAMINE THE
LEGALITY, PROPRIETY OF THE PROCEEDINGS AND IMPUGNED
JUDGMENT.
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CRL.RP No. 448 of 2021
THIS PETITION IS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Thyagaraja.S, learned counsel for the
petitioner and Sri Nanjundaradhya B.G., for the
respondent.
2. Accused who has been convicted for the offence
under Section 138 of the Negotiable Instruments Act, in
C.C.No.13926/2017 by judgment dated 11.03.2019 and
directed to pay fine of Rs.4,75,000/- of which
Rs.4,65,000/- is to be paid as compensation to the
complainant and balance amount of Rs.10,000/- to be
appropriated towards the defraying expenses of the State
confirmed in Crl.A No.838/2019 has preferred this revision
petition.
3. Facts in brief which are utmost necessary for
the disposal of the revision petition as under:
A complaint came to be lodged under Section 200
Cr.P.C., by the respondent against the accused alleging
the commission of offence under Section 138 of the
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Negotiable Instruments Act by contending that accused
took financial assistance for a sum of Rs.4,50,000/- in the
month of September 2016 with a promise to repay the
same within a short period of time. Towards the
repayment of the said financial assistance, accused parted
away a cheque bearing No.069505 dated 14.11.2016 for a
sum of Rs.4,50,000/- drawn on IDBI Bank, Tumkur Branch
which on presentation came to be dishonoured with an
'endorsement funds insufficient'.
4. A legal notice was issued on 18.02.2017
through RPAD which was returned unserved with an
endorsement 'Address insufficient'. Thereafter, the
complainant filed a complaint and sought for action
against the accused.
5. 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.
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6. In order to prove the case of the complainant,
complainant got examined himself as PW.1 and placed on
record seven documents which were exhibited and marked
as Exs.C1 to C7.
7. To rebut the evidence placed on record by the
complainant, accused got herself examined as DW.1 and
Sri Noorulla Sharief as DW.2. Accused statement as
contemplated under Section 313 Cr.P.C., was recorded by
the trial Magistrate wherein, accused has denied all the
incriminatory circumstances. Thereafter, the trial
Magistrate heard the parties and considering the oral and
documentary evidence placed on record prove the
presumption as is contemplated under Section 139 of the
Negotiable Instruments Act and convicted the accused for
the offence punishable under Section 138 of the
Negotiable Instruments Act and imposed the fine of
Rs.4,75,000/- of which sum of Rs.4,65,000/- was ordered
to be paid as compensation to the complainant.
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8. Being aggrieved by the said judgment of
conviction and order of sentence passed by the trial
Magistrate, accused preferred an appeal before the First
Appellate Court in Crl.A No.838/2019.
9. Learned Judge in the First Appellate Court
secured the records and after hearing the parties in detail,
by judgment dated 07.03.2020, dismiss the appeal filed by
the accused and confirmed the judgment of conviction and
order of sentence. Being further aggrieved by the same,
accused is before this Court in this revision petition.
10. Learned counsel for the petitioner vehemently
contended that the oral evidence of DWs.1 and 2 placed
on record would sufficiently establish that the complainant
has stolen away the cheque from the custody of the
accused and misused the same.
11. He also pointed out that the legal notice is
admittedly not served on the accused on the basis as is
found from the endorsement on the registered cover that
'address is insufficient'.
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12. As such, no offence was committed by the
accused and the same has not been properly appreciated
by both the Courts and sought for allowing the revision
petition.
13. Per contra, learned counsel for respondent not
only supported the judgment of conviction passed by both
the Courts but also contended that sentence imposed is on
the lower side and sought for dismissal of the revision
petition.
14. Having heard the parties in detail, this Court
perused the material on record meticulously. On such
perusal of the material on record, it is seen that there is
no dispute that the signature found in Ex.C1 - cheque is
that of the accused. Bank memo marked at Ex.C2 shows
that the cheque is dishonoured with an endorsement
'Funds insufficient'.
15. Copy of the legal notice and returned postal
envelope shows that the legal notice has been issued, but
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notice could not be served on the accused on the ground
that address found on the cover is 'address insufficient'.
16. A photocopy of the sale agreement and
photocopy of the sale deed were also marked before the
Court as Exs.N1 and N2 which are to be construed as
neutral documents.
17. The said documents are marked only for the
purpose of probabilising the theory that the cheque has
been issued towards the legally recoverable debt. The
cross-examination of the complainant did not yield any
such material so as to rebut the presumption available to
the complainant under Section 139 of the Negotiable
Instruments Act.
18. Further, DW.1 is the accused who deposed
before the Court that cheque in question has been
misused. In support of her case, she also examined one
Noorulla Sharief as DW.2. The oral evidence of DWs.1 and
2 would go to show that there is misuse of the cheque in
question by the complainant.
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19. In that regard, it is pertinent to note that if
there is any misuse as is alleged by the accused, some
positive action should have been taken by the accused
atleast after she put her appearance before the learned
trial Magistrate. No such positive action has been taken by
the accused like filing the police complaint or issue of legal
notice etc.
20. Under such circumstances, oral testimony of
DWs.1 and 2 are held to be not sufficient enough to
advance the theory of misuse of the cheque propounded
by the accused and the same is also not sufficient enough
to rebut the presumption available to the complainant
under Section 139 of the Negotiable Instruments Act, the
finding recorded by the trial Magistrate while passing the
order of conviction.
21. Learned Judge in the First Appellate Court re-
appreciated the material evidence on record in the light of
the grounds urged in the appeal memorandum and found
that none of the grounds urged in the appeal
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memorandum were sufficient enough to upset the sound
and categorical finding recorded by the trial Magistrate
and thus rightly dismissed the appeal.
22. Therefore, this Court does not find any infirmity
whatsoever in the judgments of the both the Courts so as
to interfere in the revisional jurisdiction.
23. Having said so, it is pertinent to note that sum
of Rs.10,000/- is imposed by the trial Magistrate as the
fine to be appropriated towards the defraying expenses of
the State.
24. Since the lis is privy to the parties and no State
machinery is involved, imposing the fine of Rs.10,000/-
towards the State for the defraying expenses would not
arise and to that extent both the judgments are suffering
from legal infirmity which needs interference by this Court
in this revision. Accordingly, the following:
ORDER
1. Revision petition allowed in part.
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2. While maintaining the conviction of the
accused for the offence punishable under Section
138 of the Negotiable Instruments Act, fine
amount awarded by the trial Magistrate in a sum
of Rs.4,75,000/- is reduced to Rs.4,65,000/-.
Amount of Rs.10,000/- imposed by the trial
Magistrate to be appropriated towards the
defraying expenses of the State is hereby set
aside.
3. Rest of the sentence stands unaltered.
SD/-
JUDGE
HB
