Karnataka High Court
R Babu vs M Babu on 27 May, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:17751
CRL.RP No. 563 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.563 OF 2015
BETWEEN:
R BABU
S/O LATE RAJANNA
AGED ABOUT 43 YEARS,
PROP: M/S KUSHAL MECHANICAL WORKS,
NO.21, 1ST CROSS,
KANAKANAGARA,
NAGARABHAVI POST,
BENGALURU-560072.
...PETITIONER
(BY SRI MANJEGOWDA FOR
SRI CHANDRASHEKARA K A, ADVOCATES)
AND:
M BABU
S/O MUNISWAMY,
Digitally
signed by R AGED ABOUT 44 YEARS,
MANJUNATHA R/AT NO.2/5, 6TH CROSS,
Location: BEHIND MINERVA MILL,
HIGH COURT
OF GOPALAPURA, MAGADI ROAD,
KARNATAKA BENGALURU-560023.
...RESPONDENT
(BY SRI Y BHASKAR, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION
AND SENTENCE DATED 26.8.2013 PASSED BY THE XIII
A.C.M.M., BANGALORE IN C.C.NO.3697/2011 AND CONFIRMED
BY THE JUDGMENT AND ORDER DATED 1.10.2014 PASSED BY
THE P.O., F.T.C.-XIV, BANGALORE CITY IN CRL.A.NO.487/2013
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CRL.RP No. 563 of 2015
FOR THE OFFENCE P/U/S 138 OF N.I.ACT AND TO ACQUIT THE
PETR./ACCUSED.
THIS CRL.RP, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
Heard learned counsel Sri Manjegowda, appearing on
behalf of Sri Chandrashekara K.A., learned counsel for the
revision petitioner. No representation on behalf of the
respondent.
2. Present revision petition is filed by the accused
challenging the order of conviction dated 26th August, 2013
passed in C.C.No.3697/2011 by the learned XIII A.C.M.M.,
Bengaluru, whereby the first Appellate Court confirmed the said
order in Criminal Appeal No.487/2013 dated 1st October, 2014
by the learned Judge of Fast Track Court - XIV, Bengaluru for
the offence punishable under Section 138 of the Negotiable
Instruments Act.
3. Facts in brief which are utmost necessary for disposal of
the present revision petition are as under:
A complaint came to be filed under Section 200 Cr.P.C.,
by the respondent herein against the revision petitioner stating
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that he was acquainted with the revision petitioner and they
were fast friends. In the friendship, the revision petitioner took
a hand loan in a sum of Rs.1,00,000/- with a promise to repay
the same within a short period and despite repeated demands,
he did not repay the amount and finally issued a cheque
bearing No.474700 dated 30.06.2010 in a sum of
Rs.1,00,000/- drawn on Federal Bank Ltd., Rajajinagar Branch,
Bengaluru, which on presentation came to be dishonored with
an endorsement that "Account Closed".
4. A legal notice came to be issued by the complainant and
there was no compliance to the callings of notice nor there
were any reply. Therefore, complainant was constrained to file
a complaint under Section 200 Cr.P.C., for the offence
punishable under Section 138 of Negotiable Instruments Act.
5. Presence of the accused was secured and plea was
recorded. The accused pleaded not guilty. Therefore, the trial
was held.
6. In order to prove the complaint averments, the
complainant got himself examined as P.W.1 and relied on eight
documentary evidence which were exhibited and marked as
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Exs.P.1 to P.8, comprising of dishonored cheque, Bank
endorsement, copy of the legal notice issued to the accused,
RPAD receipt, UCP receipt, returned RPAD cover, returned
cover opened in Court and complaint. As against the evidence
placed on by the complainant, accused got examined himself as
D.W.1 and he did not choose to place any documentary
evidence on record.
7. Learned Trial Judge recorded statement of the accused
under Section 313 of Cr.P.C., and after hearing the arguments
on both sides, convicted the accused for the offence punishable
under Section 138 of Negotiable Instruments Act and imposed
fine of Rs.1,05,000/-. Out of the said amount, Rs.1,00,000
was ordered to be paid as compensation to the complainant
and balance of Rs.5000/- as fine to the State.
8. Being aggrieved by the same, the revision petitioner filed
appeal before the District Court in Crl.A.No.487/2013.
9. Learned First Appellate Judge secured the records and
after hearing the parties, by judgment dated 1st October 2014,
dismissed the appeal by confirming the order of conviction and
sentence passed by the Trial Court.
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10. Being aggrieved by the same, present revision petitioner
is before this Court.
11. Learned counsel for the revision petitioner reiterating the
grounds urged in the revision petition, vehemently contended
that both the Courts have not properly appreciated the case of
the revision petitioner in proper perspective, especially when
the cheque has been dishonored with an endorsement 'Account
Closed' and therefore, there was a clear case made out by the
accused that the cheque that has been issued by the accused in
the friendship which has been misused by the complainant and
wrongly convicted the accused and sought for allowing the
revision petition.
12. There is no representation on behalf of the respondent.
13. In view of the submissions made on behalf of the revision
petitioner, this Court perused the material on record. On
perusal of the material on record it is crystal clear that the
cheque issued by the revision petitioner and the signature
found in the cheque is that of the revision petitioner. Therefore,
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complainant enjoys the presumption as is found in Section 138
of Negotiable Instruments Act.
14. In order to rebut the presumption, the accused got
examined himself as P.W.1. His oral evidence is not supported
by any documentary evidence about the misuse of the cheque.
15. Under such circumstances, only on the ground that
cheque has been dishonored with an endorsement that on the
ground of 'Account Closed' cannot absolve the liability of the
accused as is found in Section 138 of Negotiable Instruments
Act and therefore, learned Trial Judge was justified in
convicting the accused for the offence punishable under Section
138 of Negotiable Instruments Act.
16. Learned Judge of the First Appellate Court even after re-
appreciation of the material evidence on record, upheld the
order of conviction and sentence passed by the Trial Court.
17. This Court bestowed its attention to the material on
record and does not find any grounds whatsoever much less
good grounds in its entirety to set aside the order of of
conviction.
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18. But on the ground of proper sentence, since it is a lis
between the two private parties, order of fine of Rs.5000/- to
the State as fine is an error, which needs interference by this
Court in this revision petition. Accordingly following order is
passed:
ORDER
(i) Revision petition is allowed in part.
(ii) While maintaining the order of conviction, the
fine amount is reduced to Rs.1,00,000/- and the
same is payable as compensation to the
complainant and ordering of Rs.5000/- towards
defraying expenses to the State is hereby set
aside.
(iii) Rest of the sentence stands unaltered.
Sd/-
JUDGE
MR
