Karnataka High Court
Mr. Francis Rebello vs Prashanth Rao on 28 June, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 615 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. 615 OF 2021
BETWEEN:
MR. FRANCIS REBELLO,
S/O LATE MICHAEL REBELLO,
REBELLO VILLA PRASHANTH BAGH,
1ST CROSS ALAPE,
PADIL MANGALORE - 575 007.
...PETITIONER
(BY SMT.HALEEMA AMEEN, ADVOCATE)
AND:
1. PRASHANTH RAO,
AGED ABOUT 24 YEARS,
S/O KUMARA SWAMY,
PRAKASH PRINTERS COMPOUND,
PADUBIDRI POST,
UDUPI TALUK AND DISTRICT - 574 111.
Digitally 2. MR. GILBERT PIAS,
signed by S/O LATE DENNIS PIAS,
YAMUNA K L 1ST FLOOR, KUNTIKANA TOWERS,
Location: High KUNTIKANA MANGALORE,
Court of D.K.DISTRICT - 575 004.
Karnataka
...RESPONDENTS
(BY SMT.LAKSHMI DEVI, ADVOCATE FOR
SRI.PRASANNA V.R., ADVOCATE;
R2 SERVED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
21.11.2018 IN C.C.NO.1247/2013 PASSED BY III ADDITIONAL
CIVIL JUDGE AND JMFC, UDUPI AND THE ORDER DATED
04.11.2020 IN CRL.A.NO.61/2019 PASSED BY THE PRINCIPAL
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CRL.RP No. 615 of 2021
DISTRICT AND SESSIONS COURT, UDUPI CONFORMING THE
JUDGMENT AND ORDER OF TRIAL COURT AND ACQUIT THE
PETITIONER/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENT ACT
AND SET HIM FREE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Smt.Haleema Ameen, learned counsel for revision
petitioner and Smt.Lakshmidevi, learned counsel appearing on
behalf of Sri Prasanna V.R., learned counsel for respondent
No.1.
2. A revision petition is filed by accused No.2, who
suffered an order of conviction in C.C.No.1247/2013 dated
21.11.2018 on the file of III Additional Civil Judge and JMFC,
Udupi for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881 (for short 'NI Act') and was
awarded a fine amount of Rs.65,000/- as against the cheque
amount of Rs.30,000/-, out of which, a sum of Rs.5,000/- was
ordered to be paid as a fine towards defraying expenses of the
State and the balance amount of Rs.60,000/- as compensation
to the complainant, which was confirmed in Crl.A.No.61/2019
dated 04.11.2020 passed by the Principal District and Sessions
Judge, Udupi.
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3. The facts in brief for disposal of the revision petition
are as under:
The complaint averments reveal that accused No.1 is the
proprietor of 'Gloria Real Estate' and accused No.2 is his
business partner. It is the case of the complainant that both of
them borrowed a sum of Rs.30,000/- from the complainant and
towards the repayment, they issued the cheque bearing
No.601338 for a sum of Rs.30,000/- dated 15.01.2013 drawn
on Vijaya Bank, Alape, Padl, Mangaluru Taluk, whose
presentation came to be dishonoured with an endorsement of
'insufficient funds'. The legal notice issued was returned with an
endorsement not claimed and there was no compliance
thereafter. As such, complaint came to be filed against both the
accused persons for an action under Section 138 of NI Act. The
presence of the accused persons was secured before the Court,
plea was recorded. The accused persons pleaded not guilty.
Therefore, trial was held.
3.1 In order to prove the case of the complainant, the
complainant initially, got examined himself as PW.1. Later on,
since he could not appear for the cross-examination on account
of the fact that he was at aboard, he executed a power of
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attorney in favour of one Sri.V.Prakash Rao, who has been
again examined as PW.1 and placed on record seven
documentary evidence comprising of General Power of
Attorney, dishonoured cheque, Bank endorsement, copy of the
legal notice, and unclaimed postal covers. Cross-examination of
this witness did not yield any positive material to dislodge the
presumption in favour of the complainant under Section 139 of
NI Act.
3.2 The statement of the accused persons as
contemplated under Section 313 of Cr.PC. was recorded,
wherein the accused persons denied all the incriminating
circumstance.
3.3 However, the accused persons did not choose to
record any evidence, either oral or documentary.
3.4 Thereafter, the learned Trial Judge heard the parties
in detail, noticing that the dishonoured cheque marked at Ex.P2
was signed by accused No.2, convicted accused No.2 and
acquitted accused No.1.
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3.5 Being aggrieved by the same accused No.2 preferred
an appeal before the District Court in Crl.A.No.61/2019.
3.6 The learned Judge in the First Appellate Court, after
securing the records, re-examined the material evidence in the
light of the grounds urged in the appeal including the authority
of PW.1 to depose one and on behalf of the original complaint
and came to the conclusion that based on the General Power of
Attorney executed by the original complainant, the evidence of
PW.1 was sufficient enough in establishing the case against
accused No.2 for the commission of the offence punishable
under Section 138 of NI Act and dismissed the appeal.
3.7 Being aggrieved by the same, accused No.2 is before
this Court in this revision petition.
4. Smt.Haleema Ameen, learned counsel for revision
petitioner reiterating the grounds urged in the appeal
memorandum contended that the power of attorney executed
by the original complainant in favour of the PW.1 suffers from
legal infirmity and therefore, there is no evidence on record
placed by the complainant. As such, there is no presumption
that would be raised in favour of the complainant and sought
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for allowing the revision petition by dismissing the complaint.
He also pointed out that when the Trial Judge has acquitted
accused No.1, conviction against accused No.2 is impermissible
and therefore, sought for allowing the revision petition.
5. Alternatively, Smt.Haleema Ameen submitted that, in
the event, this Court confirms the conviction order, the Court
may think of modifying the sentence by reducing the fine
amount.
6. Per contra, Smt.Lakshmi Devi representing respondent
No.1 supported the impugned judgment.
7. Having heard the parties, this Court perused the
material on record meticulously. On such perusal of the
material on record, it is seen that the cheque in question came
to be issued, signed by accused No.2 in favour of the
complainant.
8. Complaint averments would reveal that accused No.1
being a Real Estate agent, collected a sum of Rs.30,000/- from
the complainant to get the VISA, but failed to serve the
complainant with the service of getting the VISA and therefore,
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on demand, the cheque in question came to be issued and
signed by accused No.2, who is the business partner of accused
No.1. The said cheque was admittedly, dishonoured for lack of
funds. No doubt, the complainant who went abroad could not
appear for cross-examination. Therefore, his evidence was
discarded.
9. Thereafter, based on Ex.P1-General Power of Attorney,
Sri.V.Prakash Rao has been examined as PW.1 and he has
placed on record the original General Power of Attorney,
dishonoured cheque and Bank endorsement.
10. The learned Trial Judge as well as Judge in the First
Appellate Court discussed in detail the validity of the General
Power of Attorney and the capacity of PW.1 to depose one and
on behalf of the complainant and categorically held that the
power was vested in Sri.V.Prakash Rao to depose one and on
behalf of the complainant and there was no legal impediment
for Sri.V.Prakash Rao to depose one and on behalf of the
complainant. They accepted the evidence placed on record by
Sri.V.Prakash Rao one and on behalf of the complainant and
raised a presumption as is found in 139 of NI Act.
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11. No doubt, the said presumption is a rebuttable
presumption. To rebut the presumption available to the
complaint on record, no contra evidence is placed on record by
the accused persons. Atleast a statement could have been
made by the accused while recording the accused statement as
is contemplated under Section 313 (4) Cr.P.C. explaining the
circumstances under which the amount has been collected from
the complainant and how they have not entitled not to repay
the same. No such effort has been made.
12. Further, issuance of legal notice is found from the
records and the accused persons have not claimed the legal
notice.
13. Further, the Trial Magistrate noticed the fact that
accused No.2 who had signed the dishonoured cheque at Ex.P2,
rightly exercised discretion and acquitted accused No.1. This
shows that there is sufficient application of mind into the facts
and circumstances of the case by the Trial Magistrate himself
and therefore, the judgment rendered by the Trial Magistrate
confirmed by the First Appellate Court cannot be interfered by
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this Court in this revision petition having regard to the limited
scope of the revisional jurisdiction.
14. Having said thus, from the impugned judgment itself,
this Court does not find any special reasons to impose the
double the cheque amount. Taking note of the fact that the
maximum fine that could be imposed by the Trial Magistrate is
only to the extent of double the cheque amount, the fine
amount imposed by the Trial Magistrate in a sum of
Rs.65,000/- which is beyond the double cheque amount,
cannot be countenanced in law as the learned Trial Magistrate
had no authority whatsoever, to impose a fine that is more
than double the cheque amount.
15. Accordingly, the sentence needs a modification in the
case on hand. Having said thus, this Court cannot also lose
sight of the fact that the transaction is of the year 2013 and the
matter is being adjudged before this Court in the revision in the
year 2024, reducing the fine amount from Rs.65,000/- to
Rs.50,000/- and the entire amount of Rs.50,000/- to be paid as
compensation to the complainant would meet the ends of
justice. Moreover, since the lis is privy to the parties and no
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State machinery is involved, the imposition of the fine amount
of Rs.5,000/- towards defraying expenses of the State needs to
be set aside.
16. 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 NI Act, a fine amount awarded
by the Trial Magistrate confirmed by the First
Appellate Court in a sum of Rs.65,000/- is
ordered to be reduced to Rs.50,000/- and
entire sum of Rs.50,000/- is ordered to be
paid as compensation to the complainant
failing which accused No.2/revision petitioner
shall undergo simple imprisonment for a
period of six months.
iii) An amount of Rs.5,000/- awarded by the Trial
Magistrate confirmed by the Appellate Court,
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Rs.5,000/- towards defraying expenses of the
State is hereby set aside.
iv) Time is granted till 25.07.2024 to pay balance
fine amount.
Sd/-
JUDGE
CPN
