Karnataka High Court
G Swarnakumari vs Vamse K on 28 June, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 587 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 587 OF 2021
BETWEEN:
G. SWARNAKUMARI,
W/O LATE H. GURUNATH,
AGED ABOUT 62 YEARS,
R/AT NO.2021, 18TH 'A' MAIN,
J.P.NAGAR, II PHASE,
BENGALURU-560 078.
...PETITIONER
(BY SRI. CHANDAN B.K., ADVOCATE FOR
SRI. B.SIDDESWARA., ADVOCATE)
AND:
SRI. VAMSEE K.,
S/O SRI CHANDRASHEKAR,
R/AT NO.138, R.R.LAYOUT,
NEAR SAIBABA TEMPLE, ARAKERE,
BENGALURU-560 076.
Digitally ...RESPONDENT
signed by
MALATESH (BY SRI. H. MAHESH KUMAR, ADVOCATE)
KC THIS CRIMINAL REVISION PETITION IS FILED UNDER
Location: SECTION 397 READ WITH 401 OF CR.P.C PRAYING TO SET
HIGH
COURT OF ASIDE THE ORDER / JUDGMENT DATED 08.01.2021 PASSED BY
KARNATAKA LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN CRL.A.NO.353/2018, CONFIRMING THE
JUDGMENT AND SENTENCE DATED 30.01.2018 PASSED BY
XXII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU IN C.C.NO.7580/2014 BY ALLOWING THIS
CRIMINAL REVISION PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 587 of 2021
ORDER
Heard Sri.Chandan, learned counsel for Sri.Bhadravadi
Siddeswara, learned counsel for revision petitioner and
Sri.H.Mahesh Kumar, learned counsel for respondent.
2. Revision petitioner is the accused challenging the order
of conviction passed in C.C.No.7580/2014 confirmed in
Crl.A.No.353/2018.
3. Facts in brief for the disposal of revision petition is as
under:
The complaint has filed private complaint under Section
200 of Cr.P.C. for the commission of offence punishable under
Section 138 of Negotiable Instruments Act, 1881 by contending
that accused wanted to commence business of cold storage
plant establishment and therefore sought for financial
assistance of Rs.50,00,000/- (Rupees Fifty lakhs only).
4. The complainant on 10.04.2012 had lent the money
through cheque on 11.04.2012 in a sum of Rs.27,00,000/-
(Rupees Twenty Seven Lakhs only) in the name of Gurunath
who is the husband of accused and had also issued in the name
of Ganesh in a sum of Rs.20,00,000/- (Rupees Twenty lakhs
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only) and Rs.3,00,000/- (Rupees Three lakhs only) respectively
who is the son of accused.
5. The accused agreed to repay the same within a short
period of time. A sum of Rs.20,00,000/- (Rupees Twenty lakhs
only) in cash and Rs.30,00,000/- (Rupees Thirty lakhs only)
through cheque in respect of repayment, two cheques bearing
Nos. 080638 dated 28.06.2013 in a sum of Rs.15,00,000/-
(Rupees Fifteen lakhs only) and 080639 dated 28.06.2013 in a
sum of Rs.15,00,000/- (Rupees Fifteen lakhs only) drawn on
HDFC Bank Ltd., Banashankari Branch was handed over to the
complainant which on presentation came to be dishonoured.
Ganesh has also drawn cheque bearing No.617046 dated
28.06.2013 in a sum of Rs.10,00,000/- (Rupees Ten lakhs
only) on Karnataka Bank Ltd., Kasturba Road Branch,
Bengaluru. All the cheques got dishonoured with an
endorsement 'funds insufficient'. Complainant initiated
necessary action against the present accused and Ganesh.
6. In respect of the present case, the two cheques in a
sum of Rs.20,00,000/- (Rupees Twenty lakhs only) drawn on
HDFC Bank Ltd. is the subject matter.
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7. Legal notice was issued and there was no compliance.
As such, action was initiated. Presence of accused was secured
before the learned Trial Magistrate and plea was recorded.
Accused pleaded not guilty. Therefore, the trial was held.
8. In order to prove the case of complainant, complainant
got examined himself as PW.1 and one Ravindra Reddy as
PW.2. As many as 17 documents were placed on record as
documentary evidence which are exhibited and marked as
Exs.P1 to P17 on behalf of complainant showing account
statement, relevant entries, IT returns, TDS certificate, legal
notice, dishonoured cheques and bank endorsement.
9. As against the evidence placed on record, accused got
examined himself as DW.1 and placed on record certified copy
of judgment in C.C.No.7580/2014 as Ex.D1.
10. Learned Trial Magistrate recorded the accused
statement as well wherein the accused has denied all the
incriminating circumstances and thereafter heard the parties in
detail and passed the order of conviction against the accused.
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11. Learned Trial Magistrate imposed Rs.20,00,000/-
(Rupees Twenty lakhs only) as the fine amount out of which
Rs.19,98,000/- was ordered to be tendered as compensation to
the complainant and balance amount of Rs.2,000/- (Rupees
Two thousand only) towards defraying expenses to the State.
12. Complainant for the reasons best known to him, did
not challenge the judgment of the Trial Court seeking
enhancement of the fine amount.
13. Per contra, accused challenged the validity of
judgment of the Trial Court before the First Appellate Court in
Crl.A.No.353/2018.
14. Learned Judge in the First Appellate Court after
hearing the parties in detail, dismissed the appeal by judgment
dated 08.01.2021. Thereafter, the petitioner is before this
Court.
15. Sri.Chandan for Sri.Bhadravadi Siddeswara reiterating
the grounds urged in the revision petition contended that the
learned Trial Magistrate failed to note that there was a misuse
of cheque by the complainant and similar action initiated by the
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complainant was dismissed by another competitive Court by
Ex.D1.
16. He also pointed out that in absence of proper proof of
financial capacity, lending of the amount by the complainant,
there could not have been conviction of the accused and sought
for allowing the revision petition.
17. Per contra, learned counsel for respondent supported
the impugned judgments.
18. Having heard the parties, this Court this Court
perused the material on record meticulously.
19. On such perusal of material on record, it is crystal
clear that the issuance of cheque and signature of the accused
found therein is not in dispute.
20. In order to probablise lending of the loan, account
statement of the complainant has been marked as Ex.P1.
21. In the reply notice, the accused has contended that
the complainant is a stranger to the accused and that he has a
Chartered Accountant by name Mr.L.Krishnamurthy, who is to
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file the returns of his business. While filing the income tax
returns, the said Mr.L.Krishnamurthy was given a few cheques
by the accused and those cheques have been misused by
Mr.L.Krishnamurthy in active collusion with the complainant.
Therefore, there is no legally recoverable debt that was payable
by the accused to the complainant and therefore, sought for
dropping the intended action.
22. In order to prove such a contention, neither
Mr.L.Krishnamurthy, who was the Chartered Accountant of the
accused has been cited as a witness nor any summons were
taken to examine him before the Court.
23. Further, no positive action has been taken by the
accused against Mr.L.Krishnamurthy or the complainant for the
alleged misuse of the cheques. When a reply notice was issued
by the accused, through an advocate, it was very much
necessary on the part of the accused to take some action, as it
is sounded in the reply notice itself. If the intended action is not
withdrawn, necessary action would be taken by the accused.
24. No normal prudent person would keep quiet when
there is a misuse of the cheques as is contended by the
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accused. Moreover, the amount covered under the cheques is
not a small amount. But it is to the tune of Rs.15,00,000/-
(Rupees Fifteen Lakhs only) and Rs.5,00,000/- (Rupees Five
Lakhs only) and in all, Rs.20,00,000/- (Rupees Twenty Lakhs
only). Under such circumstances, when cheques have reached
the hands of the complainant and signatures therein are not in
dispute, Ex.P1 shows the transactions between the complainant
and accused. The learned Trial Judge was justified in raising the
presumption in favour of the complainant.
25. No doubt, the said presumption is a rebuttable
presumption. In the absence of any cogent and convincing
material evidence placed on record about the misuse of the
cheques, the oral evidence of the accused, who has been
examined as DW.1 coupled with the other documents placed on
record, namely a certified copy of the judgment in
C.C.No.7582/2014 marked at Ex.D1, was not sufficient to rebut
the legal presumption in favour of the complainant.
26. Therefore, the learned Trial Magistrate was justified in
recording an order of conviction against the accused.
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27. Learned Judge in the First Appellate Court after
re-appreciation of the material on record has discussed in detail
in the impugned judgment in paragraph-21 about the answers
obtained in the cross-examination of DW.1 and confirmed the
conviction order.
28. This Court, that too in revisional jurisdiction, cannot
revisit into the factual aspects of the matter unless impugned
judgment is suffering from patent factual defect so as to upset
the finding recorded by the Trial Magistrate and the learned
Judge in the First Appellate Court. Accordingly, the order of
conviction needs to be maintained.
29. Having said so, the learned Trial Magistrate while
imposing the sentence, ordered a sum of Rs.2,00,000/-
(Rupees Two Lakhs only) to be paid as a fine amount towards
the State Exchequer. Since the lis is privy to the parties and no
State machinery is involved, awarding a sum of Rs.2,000/-
(Rupees Two Thousand only) as fine amount towards the State
Exchequer needs to be set aside.
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Accordingly, I pass the following:
ORDER
i) The 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 Instrument Act,
1881, the fine imposed by the learned Trial
Magistrate in a sum of Rs.20,00,000/-
(Rupees Twenty Lakhs only) is maintained
and the entire sum of Rs.20,00,000/- (Rupees
Twenty Lakhs only) is to be paid as
compensation as if the cheques amount to the
complainant.
iii) Direction to pay sum of Rs.2,000/- (Rupees
Two Thousand only) towards the State
Exchequer is set aside.
iv) Failure to make payment of Rs.20,00,000/-
(Rupees Twenty Lakhs only) on or before
15.07.2024, the accused shall undergo simple
imprisonment for a period of one year.
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v) Office is directed to return the Trial Court
records with copy of this order forthwith.
Sd/-
JUDGE
SSD/CPN
