Karnataka High Court

Sri R Gopal vs Mukundaraju on 25 June, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                       NC: 2024:KHC:23961
                                                   CRL.RP No. 645 of 2021




                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.645 OF 2021
            BETWEEN:
               SRI R. GOPAL
               S/O. M. RADHAKRISHNA
               AGED ABOUT 55 YEARS
               R/AT NO.22, 1ST FLOOR, 1ST MAIN
               3RD CROSS, NAYANDAHALLI
               BANGALORE-560 039

                AND ALSO AT
                SRI VARI ENTERPRISES
                NO.22, 26, 3RD CROSS
                NAYANDAHALLI, MYSORE ROAD
                BANGALORE-560 039.
                                                             ...PETITIONER
            (BY SRI AKRAM PASHA K., ADVOCATE)

            AND:
               SRI MUKUNDARAJU
               S/O. LATE VENKATAPPA
               AGED ABOUT 64 YEARS
Digitally      R/AT NO.67/F, 6TH CROSS, 2ND MAIN
signed by      VITTALNAGAR, CHAMARAJPET
MALATESH
KC             BANGALORE-560 018.
                                                            ...RESPONDENT
Location:
HIGH        (BY SRI NAVEEN N., ADVOCATE)
COURT OF
KARNATAKA         THIS CRL.RP. FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET
            ASIDE THE JUDGMENT AND SENTENCE DATED 01.03.2018, PASSED
            BY    THE   HONBLE     XII    A.C.M.M.,  AT    BENGALURU    IN
            C.C.NO.24298/2016, AND ALSO SET ASIDE THE JUDGMENT DATED
            17.03.2021 IN CRL.A.NO.540/2018 PASSED BY THE HONBLE LXIX
            ADDL.CITY CIVIL AND SESSIONS JUDGE AT BENGALURU AND
            KINDLY ACQUIT THE PETITIONER BY ALLOWING THE ABOVE
            PETITION.
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                                                NC: 2024:KHC:23961
                                           CRL.RP No. 645 of 2021




     THIS CRL.RP., COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:


                            ORDER

Heard Sri Akram Pasha, learned counsel for the revision

petitioner and Sri Naveen N learned Council for the respondent.

2. Revision by the accused who suffered an order of

conviction for the offence punishable under Section 138 of the

Negotiable Instruments Act in C.C. No.24298/2016 dated

01.03.2018 on the file of the XII Addl. Chief Metropolitan

Magistrate, Bengaluru, which was confirmed in Criminal Appeal

No.540/2018 dated 17.03.2021 on the file of the LXIX Addl.

City Civil and Sessions Judge, Bengaluru.

3. Facts in brief which are most essential for disposal of the

revision petition are as under:

Complainant launched the criminal prosecution against

the accused for the offence punishable under Section 138 of the

Negotiable Instruments Act contending that accused

approached him and took financial assistance in a sum of

Rs.20,00,000/- during last week of February 2013 to meet his

urgent business requirements and to commence a new project.

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It was also assured by the accused that the loan amount would

be repaid within six months.

4. Complainant believed the statement made by the accused

and lent a sum of Rs.20,00,000/- and was waiting for

repayment. After lapse of stipulated period, since accused did

not repay the amount, complainant demanded repayment.

5. At that juncture, amount in a sum of Rs.1,00,000/- was

repaid by way of cheque by the accused and thereafter another

cheque bearing number 989437 dated 29.09.2016 in a sum of

Rs.19,00,000/- was given by the accused towards the balance

repayment.

6. Said cheque on presentation came to be dishonoured with

an endorsement 'funds insufficient'. Legal notice was issued by

the complainant calling upon the accused to make good the

payment covered under the dishonoured cheque within 15

days. Said legal notice was served on the accused on

04.10.2016. There was no compliance to the callings of the

notice. Therefore, complainant sought for action.

NC: 2024:KHC:23961

7. Learned Trial Magistrate, took cognizance of the offence

and recorded the plea. Accused pleaded not guilty and

therefore, trial was held.

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

complainant got himself examined as PW-1 and placed on

record 14 documents which were exhibited and marked as

Exs.P.1 to 14 comprising of dishonoured cheque, bank

endorsement, legal notice postal receipts and

acknowledgments, reply notice, rejoinder and statement of

account.

9. As against the evidence placed on record by the

complainant, there is no defence evidence.

10. Learned trial Magistrate after affording necessary

opportunity for the parties noted that accused did not

participate further in the trial and heard the arguments of the

complainant and convicted the accused for the aforesaid

offence and sentenced the accused to pay fine of

Rs.19,05,000/- of which Rs.5,000/- was ordered to be paid as

fine amount towards defraying expenses of the State and

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balance sum of Rs.19,00,000/- as compensation to the

complainant.

11. Being aggrieved by the same accused preferred an appeal

before the District Court in Criminal Appeal No.540/2018.

12. Learned Judge in the First Appellate Court, after securing

the records, heard the parties in detail in the light of the

grounds urged in the appeal Memorandum and by the

judgment dated 17.03.2021 dismissed the appeal of the

accused and confirmed the order of conviction and sentence

passed by the Learner Trial Magistrate.

13. Being further aggrieved by the same, accused is before

this Court in this revision petition.

14. Sri Akram Pasha, learned counsel for the revision

petitioner reiterating the grounds urged in the revision petition,

vehemently contained that there was no sufficient and fair

opportunity that was granted to the accused in the trial

resulting in miscarriage of justice.

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15. He further pointed out that Ex.D-1 is the photocopy of

sale agreement marked before the trial Magistrate whereunder

there is a clear mention that accused is due only in a sum of

Rs.9,00,000/- whereas cheque in question is in a sum of

Rs.19,00,000/- and therefore, there is a clear admission by

PW-1 that cheque was misused.

16. He also pointed out that since accused could not appear

before the Trial Magistrate, he couldn't put up his defence

properly before the Trial Magistrate and therefore, order of

conviction passed by the learned Trial Magistrate and confirmed

by the learned Judge in the first Appellate Court needs to be set

aside and matter be remitted to the learned Trial Magistrate for

consideration afresh, in accordance with law.

17. Per contra, Sri Naveen, learned counsel for the

respondent, supports the impugned judgment.

18. In the light of the rival contentions of the parties, this

Court perused the material on record meticulously. The order

sheet of the trial court is also perused by this court

meticulously.

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19. On such perusal of the order sheet, the contentions

raised on behalf of the accused that no sufficient and fair

opportunity has been granted to the accused for placing the

defence evidence on record cannot be countenanced.

20. In fact, learned Trial Magistrate has granted sufficient

opportunity and it is the accused who failed to make use of the

same. Therefore, first ground on which impound judgments are

being attacked cannot be countenanced in law.

21. Having said thus, the material evidence on record clearly

shows that cheque in question has been dishonoured with an

endorsement 'funds insufficient'.

22. Legal notice issued by the complainant would go to show

about the dishonour of the cheque. In the reply notice,

accused has taken a contention that he has borrowed only

Rs.4,00,000/-. In other words, the defence of the accused is

the misuse of the cheque.

23. The contentions taken in reply notice do not go hand in

hand with the line of cross examination to PW -1. It is also

NC: 2024:KHC:23961

pertinent to note that in Ex D1, serial number of the cheque in

question has not been mentioned.

24. No doubt, complainant has agreed that he has received

Rs.1,00,000/-. In fact, in the complaint itself it has been

stated so by the complainant and therefore, admission of the

complainant in the cross examination that he has received

Rs.1,00,000/- would not improve the case of the accused in

any manner in establishing the fact that cheque in question was

misused.

25. When there is specific denial of the averments of the

notice in the reply notice and when the complainant has issued

a rejoinder marked at Ex.P.9 whereunder complainant has

reiterated and denied the theory put forward in the reply

notice, as a normal prudent person, accused should have taken

some positive action about alleged misuse of cheque.

26. Even after receipt of rejoinder and appearing before Trial

Magistrate with the assistance of an advocate and conducting

the case at length and cross examining the complainant, it was

expected from accused that positive action should have been

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taken, if at all, if there is misuse of cheque as is contended by

the accused.

27. From the material available on record the complainant

has come up with a theory that accused borrowed

Rs.20,00,000/- as loan and has given reduction in respect of

repayment of Rs.1,00,000/- and for balance sum of

Rs.19,00,000/-, he has presented the cheque.

28. The material available on record in the form of statement

of account fortifies the stand taken by the complainant and the

cross-examination did not yield any contra material so as to

disbelieve the case of the complainant.

29. Therefore, from the totality of the material evidence

placed on record, the learned Trial Magistrate was justified in

raising the presumption in favour of the complainant, as is

available to the complainant under section 139 of the

Negotiable Instruments Act.

30. No doubt it is a rebuttal presumption. No Contra evidence

is placed on record by the accused to rebut the presumption

raised by the learned trial Magistrate in favour of the complaint.

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31. In this regard, complaint is against the Court in not

allowing the fair opportunity. Order sheets as is referred to

above clearly shows that sufficient opportunity has been

granted to the accused and the same is not utilized by the

accused for the reasons best known to him.

32. When such is the factual aspect of the matter, this Court,

that too in the revisional jurisdiction, cannot record a different

finding than the finding recorded by the learned Trial Magistrate

confirmed by the learned Judge in the first Appellate Court.

33. Accordingly, the order of conviction passed by the learned

Trial Magistrate confirmed by the learned Judge in the first

appellate Court needs to be confirmed.

34. Having said thus, learned Trial Magistrate has imposed

Rs.5,000/- as the fine payable to the State towards defraying

expenses. Since lis is privy to parties and no State machinery is

involved, to that extent the order of the learned trial Magistrate

confirmed by the learned Judge in the First Appellate Court

needs interference.

35. In view of the foregoing reasons, the following:

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NC: 2024:KHC:23961

ORDER

(i) Revision petition is allowed in part.

(ii) While maintaining the conviction for the offence punishable under Section 138 of the Negotiable Instruments Act against the accused, the fine imposed by the learned Trial Magistrate in a sum of Rs.19,05,000/- is reduced to Rs.19,00,000/- and entire sum of Rs.19,00,000/- is payable as compensation to the complainant by the accused, failing which accused shall undergo simple imprisonment for two years.