Karnataka High Court
Anjinappa Y B vs Sri. Y R Gopi on 25 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:23221
CRL.RP No. 40 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 40 OF 2020
BETWEEN:
ANJINAPPA Y.B,
S/O BYRAPPA,
AGED ABOUT 53 YEARS,
R/AT NO.6, KOGILU ROAD,
NEXT TO SBM BANK, MARUTHI NAGAR,
YELAHANKA, BENGALURU - 560 064.
...PETITIONER
(BY SRI. ANNAIAH C.V, ADVOCATE)
AND:
SRI. Y.R. GOPI,
S/O RAMAIAH,
Digitally AGED ABOUT 54 YEARS,
signed by R-AT NO.368, 12TH MAIN ROAD,
MALATESH
KC 5TH CROSS, A SECTOR,
Location: YELAHANKA NEW TOWN,
HIGH BENGALURU - 560 068.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. M.S. JITHENDRA, ADVOCATE)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.PC
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DATED 06.07.2017
PASSED BY THE XVIII ADDL.C.M.M., BENGALURU IN
C.C.NO.10033/2016 AND ALSO SET ASIDE THE ORDER DATED
31.08.2019 PASSED BY THE LXIX ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN CRL.A.NO.1094/2017,
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CRL.RP No. 40 of 2020
FURTHER BE PLEASED TO ACQUIT THE PETITIONER IN THE
ABOVE CASE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Annaiah C. V., learned counsel for the
revision 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.10033/2016 for the offence punishable
under Section 138 of the Negotiable Instruments Act
which was confirmed in Criminal Appeal No.1094/2017
with a modified order has preferred this present revision
petition.
3. Brief facts of the case which are utmost
necessary for disposal of the revision petition are as
under:
3.1. A complaint came to be lodged by the
complainant alleging the commission of offence punishable
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under Section 138 of the Negotiable Instruments Act by
contending that accused had borrowed sum of
Rs.4,00,000/- as loan and towards the repayment, he
issued a cheque bearing No.224743 dated 16.02.2016
drawn on Oriental Bank of Commerce, Yelahanka Branch,
Bengaluru. The said cheque on presentation came to be
dishonored with an endorsement 'account closed'.
Thereafter, legal notice was issued. There was no
compliance to the callings of the legal notice. Therefore,
complainant sought for action against the accused.
4. The learned Trial Magistrate after taking
cognizance, secured the presence of the accused and
recorded the plea. Accused pleaded not guilty. Therefore,
the trial was held.
5. In order to prove the case of the complainant,
complainant got examined as P.W.1 and relied on five
documentary evidence on record which were exhibited and
marked as Exs.P.1 to Ex.P.5 comprising of cheque as
Ex.P.1, signature of the accused as Ex.P.1(a), bank
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endorsement as Ex.P.2, office copy of the demand notice
as Ex.P.3, postal receipt as Exs.P.4 and postal
acknowledgement as Ex.P.5. Cross-examination of P.W.1
did not yield any positive material to disbelieve the oral
testimony of P.W.1.
6. As against 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 learned Trial Magistrate
recorded the accused statement as is contemplated under
Section 313 of Cr.P.C. wherein, accused has denied all the
incriminatory circumstances.
8. Subsequent there to, learned Trial Magistrate
heard the parties in detail and taking note of the fact that
the accused has taken the plea of misuse of the cheque
but failed to prove the same and invoked the presumption
available to the complainant under section 139 of the
Negotiable Instruments Act and convicted the accused and
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imposed double the cheque amount as the fine amount, of
which Rs.4,00,000/- was ordered to be paid as
compensation to the complainant and balance sum of
Rs.4,00,000/- is to be remitted towards the defraying
expenses of the State.
9. Being aggrieved by the said order of conviction
and sentence passed by the learned Trial Magistrate, the
accused preferred an appeal before the First Appellate
Court in Criminal Appeal No.1094/2017.
10. The learned Judge in the First Appellate Court
after securing the records and hearing the arguments, vide
judgment dated 31.08.2019, confirmed the order of
conviction but altered the sentence by imposing fine in a
sum of Rs.4,05,000/- as against sum of Rs.8,00,000/-
which has been imposed by learned Trial magistrate and
out of the fine amount of Rs.4,05,000, Rs.4,00,000/- is to
be paid as compensation to the complainant and balance
sum of Rs.5,000/- is to be paid as defraying expenses of
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the State. Complainant did not challenge the modification
of sentence.
11. Being further aggrieved by the same, the
accused is before this Court in this revision.
12. Reiterating the grounds urged in the revision
petition, Sri.Annaiah C. V., learned counsel for the revision
petitioner vehemently contended that both the Courts
have failed to understand that there was no capacity for
the accused to lend a sum of Rs.4,00,000/- and as he has
admittedly getting the rents to the tune of Rs.30,000/- to
Rs.40,000/- per month and he has studied only up to 7th
standard, which aspect would go to show that complainant
could not have lent sum of Rs.4,00,000/- to the accused.
13. He further pointed out that material on record
would go to show that it is the complainant who has stolen
away the cheques from the custody of the accused and
misused the same and then, foisted a false case against
the accused and said aspect of the matter is totally
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ignored by learned Trial Magistrate and learned Judge in
the First Appellate Court. Therefore, sought for allowing
the revision petition.
14. Sri.M.S.Jithendra, learned Advocate who
remained absent.
15. In the light of the arguments that has been 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, it is
crystal clear that cheque belongs to the accused and
signature found there in is that of the accused. The theory
that is put forward by the accused is that complainant has
stolen away the cheque from the custody of the accused
and misused the same.
17. To advance the said theory, no positive action
has been taken by the accused. No legal notice is issued
nor any criminal complaint is filed. When the accused has
appeared before the learned Trial Magistrate and had
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engaged the services of an Advocate, why would he keep
quite without taking any action against the complainant, if
the cheque has been stolen away from the custody of the
accused is the question that remains unanswered.
Therefore, when the theory of misuse fails, learned Trial
Magistrate was justified in raising the presumption under
Section 139 of the Negotiable Instruments Act especially,
when there is no reply to the legal notice.
18. Under such circumstances, order of the learned
Trial Magistrate confirmed by the First Appellate Court
recording the order of conviction for the offence
punishable under Section 138 of the Negotiable
Instruments Act needs no interference by this Court, that
too, in the revision jurisdiction.
19. Having said thus, it is found from the record
that learned Judge in the First Appellate Court has altered
the sentence by imposing fine of Rs.8,00,000/- to
Rs.4,05,000/- in the judgment dated 31.08.2019. Even
therein, a legal error has occurred inasmuch as learned
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Judge in the First Appellate Court has imposed Rs.5,000/-
to be paid as defraying expenses of the State which is
impermissible in law.
20. In view of the fact that no state machinery is
involved and lis is privy to the parties, accordingly, a case
is made out to set aside imposition of fine of Rs.5,000/-
towards the defraying expenses of the State.
21. Hence, following:
ORDER
i. Criminal Revision Petition is allowed in
part.
ii. While maintaining the conviction of the
accused for the offence punishable under
Section 138 of the Negotiable Instruments
Act, the fine amount imposed by the learned
Trial Magistrate in a sum of Rs.8,00,000/-
modified by the First Appellate Court in a
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sum of Rs.4,05,000/- is further modified in a
sum of Rs.4,00,000/-.
iii. Entire sum of Rs.4,00,000/- is to be paid as
compensation to the complainant.
iv. In default of payment fine amount, accused
shall undergo simple imprisonment for a
period of one year.
v. Imposition of fine amount by the First
Appellate Court by modifying the sentence of
the learned Trial Magistrate from
Rs.8,00,000/- to Rs.4,05,000/- and directing
sum of Rs.5,000/- to be paid as defraying
expenses of the State is hereby set aside.
vi. Accused is granted time till 31.07.2024 to
pay the balance fine amount.
Sd/-
JUDGE
KAV
CT: BHK
