Karnataka High Court
Mr.Srinivasa Kharvi vs Sri Mohan Mesta on 10 June, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 1049 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.1049 OF 2015
BETWEEN:
MR.SRINIVASA KHARVI
AGED ABOUT 36 YEARS,
S/O KRISHNA KHARVI
R/AT KOTA, KODI KANYAN
UDUPI TALUK-576101
...PETITIONER
(BY KUM. THANIMA BEKAR FOR
SRI HAREESH BHANDARY.J, ADVOCATES)
AND:
SRI MOHAN MESTA
S/O VENKATESH MESTA
AGED ABOUT 38 YEARS,
R/AT GUJJADIMANE,
NAIKAWADY POST,
KUNDAPURA-572101
Digitally ...RESPONDENT
signed by R (BY SRI K.PRASANNA SHETTY, ADVOCATE)
MANJUNATHA
Location:
HIGH COURT THIS CRL.RP IS FILED UNDER SECTION 397(2) CR.P.C
OF PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
KARNATAKA
CONVICTION DATED 15.02.2011 MADE IN C.C.NO.843/2002 BY
THE COURT OF ADDL. CIVIL JUDGE (JR.DN.) AND JMFC,
KUNDAPURA AND THE JUDGMENT AND ORDER DATED
09.09.2015 MADE IN CRL.A.NO.7/2013 BY THE ADDL. DIST.
AND S.J., UDUPI (SITTING AT KUNDAPURA) KUNDAPURA AND
ACQUIT THE PETITIONER.
THIS CRL.RP COMING ON FOR ARGUMENTS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 1049 of 2015
ORDER
Heard Kum. Thanima Bekar, advocate Sri J.Hareesh
Bhandary, learned counsel for the petitioner and Sri K.Prasanna
Shetty, learned counsel for the respondent.
2. Accused is revision petitioner who suffered an order in
C.C.No.843/2002 dated 15.02.2011 on the file of the Addl. Civil
Judge (Jr.Dn.) and JMFC, Kundapur, for the offence punishable
under Section 138 of the Negotiable Instruments Act ('Act' for
short) and ordered to pay double the cheque amount out of
which Rs.3,85,000/- was ordered to be paid as compensation
and balance sum of Rs.5,000/- towards defraying expenses to
the State, which was confirmed in Crl.A.No.7/2013, dated
09.09.2015 on the file of the Addl. District and Sessions Judge,
Udupi, sitting at Kundapura.
3. Facts of the case unfold as under:
A complaint came to be lodged under Section 200 of the
Code of Criminal Procedure alleging the offence punishable
under Section 138 of the Act said to have been committed by
the accused for having not honoured the cheque tendered by
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him to the complainant in a sum of Rs.1,95,000/- and despite
legal notice, there was no compliance.
4. Learned Trial Magistrate took cognizance and summoned
the accused. Plea was recorded and accused pleaded not
guilty, therefore, trial was held.
5. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and placed on
record seven documents, exhibited and marked as Exs.P.1 to 7,
comprising of original cheque, endorsement of Corporation
Bank, Sashan, memo of Syndicate Bank, Gangulli, O.C. of legal
notice, postal receipt, reply notice and complaint.
6. As against the evidence placed on record by the
complainant, brother of the accused by name Mangala Kharvi
has been examined as D.W.1 and the Bank Manager by name
Mohandas Pai has been examined as D.W.2. Accused relied on
eleven documents exhibited and marked as Exs.D.1 to 11,
comprising of letter, copy of the complaint, U.C.P. receipt,
letter of Gangaolli Travel Boar Fishermen's Union, police notices
and legal notices.
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7. In the cross-examination of D.W.1, he admits that he is
in the business of sale of fish which he is carrying on in Gangolli
and Mangaluru. He also submits that he was in the business of
fish and sale of fish and he had owned a boat. D.W.1 could not
identify the signature of the accused. He also admits that he
does not know who has issued Ex.P.1 to whom. He also admits
that he cannot say what is the amount covered under Ex.P.1-
cheque. As such, theory put forward by the accused that
cheque has been misused by the complainant which was
actually given by accused to his brother (D.W.1) did not get
advanced by his evidence.
8. The second ground on which accused tried to avoid the
liability is that cheque is dishonored on the ground that account
was closed by the accused before the cheque came to be
presented and despite bank endorsement showing that cheque
has been dishonoured with an endorsement that 'account is
closed', complainant has wrongly shown in the legal notice that
cheque is dishonoured for want of funds and therefore, there is
a defect in the notice.
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9. On perusal of Ex.P.2, it is crystal clear that the cheque
has been dishonoured with an endorsement 'account closed'.
No doubt, in the legal notice, it has been alleged that the
cheque has been dishonoured with an endorsement 'funds
insufficient'.
10. Learned Trial Magistrate considering the evidence placed
on record on behalf of the accused, has specifically noted that
when once the cheque has reached the hands of the
complainant and signature found therein is not disputed,
complainant enjoys the presumption under Section 139 of the
Act.
11. Learned Trial Magistrate also noted that there was
transaction of sale of fish and in that regard cheque came to be
issued. In the absence of any positive evidence placed on
record about misuse of the cheque, learned Trial Magistrate
held that accused is liable for the offence punishable under
Section 138 of the Act and convicted the accused.
12. Being aggrieved by the same, accused filed an appeal
before the District Court in Crl.A.No.7/2013.
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13. Learned Judge in the First Appellate Court, after securing
the records, considered the case of the parties after hearing
them in detail and concurred with the finding recorded by the
learned Trial Magistrate.
14. In paragraphs 19, 20, 21 and 22, learned Judge in the
First Appellate Court not only concurred with the finding
recorded by the learned Trial Magistrate, but also
supplemented the additional reasons in maintaining the Order
of conviction and sentence, and dismissed the appeal.
15. Being further aggrieved by the same, revision petitioner
is before this Court.
16. Miss Thanima Bekal, learned counsel for the petitioner,
reiterating the grounds urged in the revision petition,
vehemently contended that evidence of D.Ws.1 and 2 would be
sufficient enough to rebut the presumption inasmuch as the
complainant failed to establish the fact that the cheque was
actually issued for the legally recoverable debt inasmuch as the
accused has closed the account in the year 1998 itself.
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17. She also pointed out that the cheque which was in the
custody of D.W.1 has reached the hands of the complainant
and thereafter, complainant has misused the cheque given by
D.W.1 in his favour and thus, there is no privy between
complainant and the accused.
18. She further pointed out that in the event this Court were
to maintain the conviction order, Court may consider the
reduction of the fine amount and sought for allowing the
revision petition to that extent.
19. Per contra, Sri Prasanna Shetty, learned counsel for the
respondent supported the impugned judgment and contended
that, the trial has been prolonged by the accused from the year
2002 to 2012 and in the appeal, matter was also prolonged
further upto 2015 from 2013. Therefore, no concession can be
shown insofar as fine amount is concerned and sought for
dismissal of the petition.
20. Having heard the learned counsel for the parties in detail,
this Court perused the material on record, meticulously.
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21. On such perusal of the material on record, it is crystal
clear that the signature found in Ex.P.1 is that of the accused.
For the reasons best known to the accused, he did not step into
witness box and denied the signature on Ex.P.1. Per contra, he
examined his brother Mangala Kharvi as D.W.1 who failed to
identify the signature of the accused in Ex.P.1.
22. Pertinent to note that cheque is not dishonoured on the
ground that the signature in Ex.P.1 did not tally. But cheque is
dishonoured on the ground 'account closed'.
23. Another ground on which accused is trying to avoid the
liability is that notice is defective. Purpose of issuing notice
under the provisions of the Act is to provide one more
opportunity for the accused to retrace the genuine or bonafide
mistake in allowing the cheque being dishonoured. Fifteen
days time is granted from the date of receipt of notice to the
accused so as to allow him to arrange the amount covered
under the cheque and repay the same to avoid criminal liability.
24. In the case on hand, no doubt, notice mentions that
cheque has been dishonoured for want of funds though the
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cheque is actually dishonoured on the ground that account is
closed. What prevented the accused to repay the amount
instead of replying the notice is not forthcoming on record.
25. On the contrary, specific contention is taken in the reply
notice marked at Ex.P.6 by the accused that the cheque has
been misused. Therefore, it should be inferred that irrespective
of whatever the ground on which cheque is dishonoured,
accused never intended to repay the amount.
26. To put forward the theory of misuse of the cheque by the
complainant, accused did not step into witness box, but
examined his brother. His Brother admits the transaction of
sale of fish and owning a boat etc., in his cross-examination.
He makes a specific admission in the cross-examination that he
cannot say who issued Ex.P.1 to whom. This, witness is
examined by the accused to show that actually cheque was
possessed by him and he in turn handed it over to the
complainant. No such evidence is forthcoming in his evidence.
27. Under such circumstances, merely examining the brother
of the accused as D.W.1 did not improve the case of the
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accused in establishing the fact that there was misuse of
cheque nor the said evidence was sufficient enough to rebut
the presumption available to the complainant under Section
139 of the Act.
28. Further, the oral evidence of bank manager (D.W.2) is
only to establish that when account was opened and when the
account was closed.
29. Mere oral evidence of D.W.2 would not be sufficient
enough to advance the case of the accused. Further, at the
time of closure of account, it was incumbent on the part of the
accused to hand over all the unused cheques to the bank. If
any cheque was missing, it was the duty of the accused to
mention the same and should have instructed the bank about
misplacing of the cheque or same has been issued to a
particular person and if any such cheque is presented, the
payment may be stopped.
30. No such written instructions have given to the bank by
the accused before closure of account.
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31. Under such circumstances, when the theory put forward
by the accused that there was misuse of cheque is not proved
and there is a presumption available in favour of the
complainant, learned Trial Magistrate was justified in convicting
the accused for the offence punishable under Section 138 of the
Act which has been properly re-appreciated by well reasoned
order of the learned Judge in the First Appellate Court as
referred to supra.
32. Accordingly, this Court does not find any merit in the
contentions raised by the accused that cheque has been
misused and there is no liability.
33. Having said thus, learned Trial Magistrate has imposed
double the cheque amount as fine out of which Rs.3,85,000/-
was ordered to be paid as compensation to the complainant
and sum of Rs.5,000/- as defraying expenses to the State.
34. In the Order of learned Trial Magistrate, there is no
sufficient reasoning or foundation for imposing double the
cheque amount. No doubt, one can infer from the proceedings
that there is delay in concluding the proceedings which might
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have persuaded the learned Trial Magistrate to impose double
the cheque amount as fine.
35. However, sufficient reasons must have been furnished in
the judgment of conviction and order of sentence for imposing
double the fine amount.
36. Taking note of the fact that cheque is said to have been
issued in the year 2001 according to complainant and according
to the accused in the year 1998 and accused having failed to
prove the same, reducing the fine amount from Rs.3,90,000/-
to Rs.3,50,000/- would meet the ends of justice. Further,
imposing the fine of Rs.5,000/- payable to the State also needs
to be set-aside as the lis is privy to parties and no State
machinery is involved.
37. Accordingly, from the above discussion, the following:
ORDER
(i) Revision Petition is allowed in part.
(ii) While maintaining the conviction of the
accused for the offence punishable under
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Section 138 of the Negotiable Instruments Act
confirmed by the learned Judge in the First
Appellate Court, fine amount of Rs.3,90,000/-
is reduced to Rs.3,50,000/- which is to be
paid as compensation to the complainant.
(iii) Awarding of fine of Rs.5,000/- to the State
machinery towards defraying expenses is
hereby set-aside.
(iv) Accused is granted time till 30th June 2024 to
pay the balance fine amount, failing which, he
shall undergo simple imprisonment for a
period of one year.
Sd/-
JUDGE
kcm
