Karnataka High Court
Sri. Abdul Rasheed M vs Sri. Raghu. R on 10 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:20184
CRL.RP No. 309 of 2021
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. 309 OF 2021
BETWEEN:
SRI. ABDUL RASHEED M,
S/O LATE MASTAN SAB,
AGED ABOUT 61 YEARS,
ASST. AGRICULTURAL OFFICER,
AGRICULTURE OFFICE,
HOSADURGA, HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 527.
...PETITIONER
(BY SRI. LOKESH K, ADVOCATE FOR
SRI. VIJAYA KUMAR K, ADVOCATE)
AND:
SRI. RAGHU. R,
S/O KALAIAH,
Digitally
AGED ABOUT 40 YEARS,
signed by R R/O TARASU ROAD, BALAGADI,
MANJUNATHA
Location: KOPPA TOWN, KOPPA TALUK,
HIGH COURT CHIKKAMAGALURU DISTRICT - 577 126.
OF
KARNATAKA ...RESPONDENT
(BY SRI. CHETHAN KUMAR B.A, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
18.03.2020 PASSED IN CRL.A.NO.241/2019 AND ALSO THE
JUDGMENT AND ORDER PASSED IN C.C.NO.74/2016 PASSED
BY THE CIVIL JUDGE AND JMFC, KOPPA DATED 15.10.2019
AND ALLOW THE REVISION PETITION, BY ACQUITTING THE
PETITIONER FOR THE OFFENCE U/S 138 OF N.I ACT.
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CRL.RP No. 309 of 2021
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Vijaya Kumar K., 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.74/2016, who has been convicted for the
offence punishable under Section 138 of the Negotiable
Instruments Act which was confirmed in Criminal Appeal
No.241/2019 vide judgment dated 18.03.2020.
3. Brief facts of the case which are utmost
necessary for disposal of the present revision petition are
as under:
3.1. A complaint came to be filed by the respondent
under Section 200 of Cr.P.C. alleging the offence
committed by the accused for the offence punishable
under Section 138 of the Negotiable Instruments Act by
contending that accused has borrowed Rs.3,50,000/- as a
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hand loan on 19.07.2015 with a assurance to repay the
same within 15 days.
3.2. Despite repeated demands, accused failed to
repay the amount and ultimately, issued a cheque bearing
No.052531 dated 25.08.2015 in a sum of Rs.3,50,000/-,
drawn on S.B.M. Koppa Branch. Same on representation
came to be dishonoured with an endorsement 'funds
insufficient'. Thereafter, legal notice was issued and same
is deemed to have been served as the notice returned with
an endorsement 'not claimed'. There was no compliance
nor reply to the notice. Therefore, complaint was filed
under Section 138 of the Negotiable Instruments Act as
per the complaint averments.
4. The learned Magistrate took cognizance of the
offence punishable under Section 138 of the Negotiable
Instruments Act and secured the presence of the accused.
Plea was recorded and accused pleaded not guilty.
Therefore, the trial was held.
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5. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and relied on
06 documentary evidence which were exhibited and
marked as Exs.P.1 to Ex.P.6 comprising of original cheque
for a sum of Rs.3,50,000/- as Ex.P.1, signature of the
accused as Ex.P.1(a), Bank endorsement as Ex.P.2, Court
foil dated 20.11.2015 as Ex.P.3, copy of the legal notice as
Ex.P.4, postal receipt as Ex.P.5, returned legal notice as
Ex.P.6 and RPAD cover as Ex.P.6(a).
6. To rebut the evidence placed on record by the
complainant, accused got examined himself as D.W.1 and
did not place any documentary evidence on record.
7. Thereafter, the accused's statement as
contemplated under Section 313 of Cr.P.C. was recorded
and accused denied all the incriminatory materials.
8. Thereafter, learned Magistrate heard the parties
and on consideration of the material evidence placed on
record, convicted the accused for the offence punishable
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under Section 138 of the Negotiable Instruments Act and
imposed fine of Rs.4,00,000/-, out of which Rs.3,95,000/-
was ordered to be paid as compensation to the
complainant and balance sum of Rs.5,000/- is to be
remitted to the State for defraying the expenses.
9. Being aggrieved by the same, the accused
preferred an appeal before the First Appellate Court in
Criminal Appeal No.241/2019.
10. Learned Judge in the First Appellate Court after
securing the records and hearing the parties in detail,
reappreciated the material evidence on record and did not
find any infirmity in the judgment of the trial Court and
therefore, confirmed the judgment of the trial Court and
sentence by dismissing the appeal vide order dated
18.03.2020.
11. Being further aggrieved by the same, accused is
before this Court in this revision.
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12. Sri.Vijaya Kumar K., learned counsel for the
revision petitioner reiterating the grounds urged in the
revision petition vehemently contended that both the
Courts have not properly appreciated the material
evidence on record and wrongly convicted the accused and
imposed the sentence. Thus, sought for allowing the
revision petition.
13. He also pointed out that the cheque that has
been issued by the accused in some other context has
been misused by the complainant and said oral evidence
of the accused has not been properly appreciated by the
Trial Court and has sought for reduction of the sentence.
14. None present on behalf of the respondent.
15. In the light of the arguments put forth on behalf
of the revision petitioner, this Court perused the material
on record meticulously.
16. On such perusal of the material on record,
issuance of the cheque and signature found there in is not
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in dispute. The only defence of the accused is that the
cheque that has been issued in some other context has
been misused by the complainant. To establish the same,
accused got himself examined as D.W.1 and placed oral
evidence on record.
17. The oral evidence of the accused has been
considered by learned Trial Magistrate in detail and so
also, learned Judge in the First Appellate Court and noted
that there is no positive action on the part of the accused
so as to hold that the rebuttable evidence under Section
139 of the Negotiable Instruments Act has not been placed
by the accused as is held in Rangappa V/s Sri. Mohan
reported in AIR 2010 SC 1898 and K.N.Beena V/s.
Muniyappan reported in AIR 2001 SC 2895.
18. In the absence of any positive action, atleast
after the appearance of the accused before the learned
Trial Magistrate in filing the criminal complaint or at least
issuing a legal notice, this Court is of the considered
opinion that the finding recorded by the learned Trial
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Magistrate confirmed by the First Appellate Court that
accused is guilty of the offence punishable under Section
138 of the Negotiable Instruments Act does not call for
interference.
19. Insofar as sentence is concerned, admittedly,
cheque is in a sum of Rs.3,50,000/- and learned Trial
Magistrate has imposed fine in a sum of Rs.4,00,000/- out
of which Rs.3,95,000/- is to be paid as compensation to
the complainant. Balance sum of Rs.5,000/- was ordered
to be appropriated towards the expenses of the State
towards the defraying expenses of the State which cannot
be countenanced in law inasmuch as lis is privy to the
parties. As such, same needs to be set aside.
20. Accordingly, the following:
ORDER
i. Revision petition is allowed in part.
ii. While maintaining the order of conviction of
the accused for the offence punishable
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under Section 138 of the Negotiable
Instruments Act, awarding fine in a sum of
Rs.4,00,000/- is reduced to the extent of
Rs.3,95,000/- and imposing sum of
Rs.5,000/- as fine towards the State is
hereby set aside.
iii. Entire amount of Rs.3,95,000/- is to be
paid as compensation to the complainant.
Failing which, the accused shall undergo
imprisonment for a period of six months.
iv. Office is directed to return the Trial Court
Records with copy of this order forthwith.
v. Time is granted to pay the balance fine
amount till 30.06.2024.
Sd/-
JUDGE
KAV
CT: BHK
