Karnataka High Court
M S Nagaraj vs Dhathathriya Batta on 26 June, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:23626
CRL.RP No. 69 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.69 OF 2020 (397)
BETWEEN:
M S NAGARAJ
S/O M. SUBRAMANYA SHETTY
AGED ABOUT 52 YEARS
NO.263/1, CHELUVAMBA
AGRAHARA, K.R.MOHALLA
MYSORE-570028.
...PETITIONER
(BY SRI. VEERABHADRA SWAMY H P., ADVOCATE)
AND:
DHATHATHRIYA BATTA
S/O NARASHIMA BATTA,
AGE 46 YEARS, D.NO.1,
Digitally SRI SEETHARAMASWAMY TEMPLE,
signed by R SEETHA VILASA ROAD,
MANJUNATHA OPP: MARIMALLAPPA COLLEGE,
Location: MYSORE-560024.
HIGH COURT ...RESPONDENT
OF
KARNATAKA
(BY SRI. DHATHATHRIYA BATTA- SERVED)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 06.09.2019
MADE IN CRL.A.NO.104/2016 ON THE FILE OF THE HON'BLE
VII ADDITIONAL SESSIONS JUDGE AT MYSURU AND
JUDGEMENT AND ORDER DATED 25.04.2016 MADE IN
C.C.NO.1075/2015 ON THE FILE OF THE HON'BLE COURT C/C
JUDICIAL MAGISTRATE FIRST CLASS (IV COURT) MYSURU
-2-
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CRL.RP No. 69 of 2020
(JMFC III COURT AT MYSURU) AND CONSIDERED THE SAID
CRL.RP ON MERITS.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Veerabhadra Swamy H.P, learned counsel
for the revision petitioner.
2. Learned counsel for the revision petitioner
submits that despite his best efforts, he could not get the
presence of the respondent. Further, he also submits that
he is ready to address the arguments on merits.
Accordingly, the matter is heard on merits.
3. The accused who has suffered an order of
conviction in C.C.No.1075/2015 confirmed in
Crl.A.No.104/2016 has filed this revision petition
challenging the validity of the judgments of both the
Courts.
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4. Brief facts of the case which are utmost
necessary for the disposal of the present revision petition
are as under:
The complainant lodged the complaint against the
accused for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 (hereinafter referred
to as 'the N.I Act' for brevity), by filing a private complaint
under Section 200 of Cr.P.C. The complaint averments
reveals that accused approached the complainant in the
month of June 2011 and requested him to advance hand
loan in a sum of Rs.25,000/- with a promise to repay the
same as early as possible. Towards repayment of the said
hand loan, accused issued a cheque bearing No.471281
dated 20.10.2011 for a sum of Rs.25,000/- drawn on
Karur Vysya Bank. Said cheque on presentation came to
be dishonoured with an endorsement as 'insufficient
funds'. Legal notice issued to the accused, but there is no
compliance nor any reply, but accused in turn issued a
untenable reply. Therefore, the complainant sought for
action.
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5. Learned trial Magistrate after taking cognizance
of the offence under Section 138 of N.I Act, secured the
presence of the accused and recorded plea. Accused
pleaded not guilty. Therefore, the trial was held. In order
to prove the case of the complainant, the complainant got
examined himself as PW.1 and placed on record 4
documents namely cheque, Bank endorsement, copy of
legal notice and reply notice. Accused statement as is
contemplated under Section 313 of Cr.P.C was recorded,
wherein accused denied all the incriminating
circumstances. Thereafter, accused got examined himself
as DW.1, but did not place any documentary evidence on
record.
6. Learned trial judge thereafter heard the parties
in detail and after considering the rival contentions of the
parties, convicted the accused for the offence punishable
under Section 138 of the N.I Act and ordered to pay fine of
Rs.36,000/- , out of sum of Rs.35,000/- was ordered to be
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paid as compensation to the complainant and Rs.1,000/-
towards defraying expenses of the State.
7. Being aggrieved by the same, accused has
preferred an appeal in Crl.A.No.104/2016 before the
District court.
8. Learned judge of the first appellate Court after
securing the records and hearing the parties, dismissed
the appeal dated 06.09.2019. Subsequent thereto,
accused is before this Court in this revision petition.
9. Sri. Veerabhadra Swamy, learned counsel for
the revision petitioner reiterating the grounds urged in the
revision petition vehemently contended that both the
courts have failed to appreciate the material evidence on
record in proper perspective and sought for allowing the
revision petition.
10. He also contends that in the reply notice there
is specific contention taken by the accused that accused
lost his money purse wherein the signed cheque was also
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kept and thereafter, the same has reached the hands of
the complainant and there is a misuse of the cheque.
11. To probablise the said defence, no material
evidence is placed on record in the form of police
complaint for the loss of the money purse or misuse of the
cheque. Therefore, trial Magistrate believed the version of
the complainant and convicted the accused. Since the
material evidence on record does not indicate any legal
infirmity, the theory loss of purse as is contended by the
accused cannot be countenanced in law which has been
rightly appreciated by the trial Magistrate and learned
judge in the first appellate Court.
12. Therefore, this Court, that too in the revision
jurisdiction, cannot interfere in the said finding.
13. Having said thus, since lis is privy to the parties
and no State machinery is involved, imposition of fine of
Rs.1,000/- to the State cannot be countenance in law, to
that extent revision petition is to be allowed.
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14. Accordingly, I proceed to pass the following:
ORDER
i. The criminal revision petition is allowed in
part.
ii. While maintaining the order of conviction
of the accused for the offence punishable
under Section 138 of the Negotiable
Instruments Act, 1881, fine imposed by
the trial Court for a sum of Rs.36,000/- is
reduced to a sum of Rs.35,000/. Entire
sum of Rs.35,000/- is ordered to be paid
as compensation to the complainant,
failing which, the accused shall undergo
simple imprisonment for a period of three
months.
iii. Fine amount of Rs.1,000/- imposed by the
trial Court confirmed by the first Appellate
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Court towards the defraying expenses of
the State is hereby set aside.
iv. Time is granted for the accused to pay the
balance sum of fine amount till 25th July
2024.
Sd/-
JUDGE
SKS
