Karnataka High Court
K Lokesh vs K.M. Somashekara on 27 May, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:17760
CRL.RP No. 290 of 2021
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. 290 OF 2021
BETWEEN:
K. LOKESH,
S/O KUNTEGOWDA,
AGED ABOUT 55 YEARS,
R/AT N.M. ROAD, PANDAVAPURA TOWN,
MANDYA DISTRICT - 571 435.
...PETITIONER
(BY SRI. LOKESH MALAVALLI, ADVOCATE)
AND:
K.M. SOMASHEKARA,
S/O J. SAMBULINGEGOWDA,
AGED ABOUT 28 YEARS,
R/AT KANAGANMARADI VILLAGE,
KASABA HOBLI, PANDAVAPURA TQ,
Digitally MANDYA DISTRICT - 571 435.
signed by
MALATESH ...RESPONDENT
KC
Location:
(BY SRI. SRISHAILA, ADVOCATE FOR
HIGH SRI. D.R. RAJASHEKHARAPPA, ADVOCATE)
COURT OF
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO ALLOW THIS CRL.RP BY SETTING ASIDE
JUDGMENT AND ORDERS OF CONVICTION DATED 03.11.2020
PASSED IN APPEAL.NO.5030/2019, BY THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING AT
SRIRANGAPATNA) THEREBY DISMISSING THE APPEAL FILED
BY THE PETITIONER AND CONFIRMING THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DATED 25.06.2019
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NC: 2024:KHC:17760
CRL.RP No. 290 of 2021
PASSED IN C.C.NO.690/2018 BY THE LEARNED ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC PANDAVAPURA THEREBY
CONVICTING THE PETITIONER FOR THE OFFENCE P/U/S 138
OF THE N.I ACT SENTENCE TO UNDERGO S.I FOR A PERIOD OF
SIX MONTHS AND PAY THE FINE OF RS.5000/- IN DEFAULT
AND ALSO PAY COMPENSATION OF RS.2,50,000/- TO THE
COMPLAINANT/RESPONDENT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. Lokesh Malavalli and Shrishaila for
D.Rajashekharappa.
2. Present Criminal Revision Petition is filed by the
accused challenging the order of conviction passed in
C.C.No.690/2018 and confirmed in Crl.A.No.5030/2019.
3. Facts in brief which are utmost necessary for
disposal of the present revision petition are as under: Revision
petitioner being the accused in C.C.No.690/2018 has issued
cheque in favour of respondent herein, which on presentation
came to be dishonoured. Legal notice came to be issued but
there was no compliance to legal notice nor there was any
reply; which constrained the complainant to file complaint
under Section 138 of the Negotiable Instrument Act before the
Trial Court, which on contest came to be allowed and accused
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was convicted for the offence punishable under Section 138 of
the Negotiable Instrument Act and a sum of Rs.2,55,000/- was
ordered as fine out of which a sum of Rs.2,50,000/- was
ordered to be paid as compensation and Rs.5,000/- towards
State.
4. Being aggrieved by the said judgment of conviction,
the revision petitioner file an appeal before the First Appellate
Court in Crl.A.No.1530/2019. The said Criminal appeal on
contest came to be dismissed and order of conviction and
sentence was confirmed.
5. Being aggrieved by the same, accused is before this
Court in this revision petition. Hence, Sri. Lokesh Malavalli, the
learned counsel for petitioner, re-iterating the grounds urged in
the revision petition, contended that both the Courts have
grossly erred in convicting the revision petitioner and sought
for allowing the revision petition.
6. Per contra Sri. Shrishaila, learned counsel for
respondent supports the impugned judgments.
7. Having heard the parties this court perused the
materials on record. On such perusal of the material on record
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it is crystal clear that the signature found on the cheque
marked at Ex.P1 is not in dispute. Legal notice issued by the
respondent is not complied nor replied by the revision
petitioner. Therefore, respondent-complainant enjoys to the
presumption under Section 139 of the Negotiable Instrument
Act.
8. It is pertinent to note that the respondent did not
choose to enter the witness box to rebut the presumption
available in favour of the complainant.
9. Following the judgment of the Hon'ble Apex Court in
the case of INDIAN BANK ASSN. V/S. UNION OF INDIA
REPORTED IN (2014) 5 SCC 590 the accused was bound to
rebut presumption available to the complainant and in the
absence of any such material available placed on record by the
accused, the learned Trial Judge was justified in convicting the
accused and imposing the fine of Rs.2,55,000/-. The same is
upheld by the learned Judge in the First Appellate Court.
However, the Magistrate did not have any jurisdiction to order
a sum of Rs.5,000/- as fine payable to the State as the lis
between the complainant and accused and no State machinery
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was involved in resolving the lis between the complainant and
the accused.
10. Therefore, hardly there is any scope for ordering
payment of Rs.5,000/- as the fine towards defraying expenses
of the State. Therefore, to that extent both the Courts have
committed legal error which requires to be set aside by this
Court in this revision petition.
11. In the absence of any other material on record,
order of conviction needs upheld. Hence, the following:
ORDER
i) Revision petition is allowed in part.
ii) While maintaining the conviction and the fine
imposed by the Trial Court, sum of Rs.5,000/- ordered by the
learned Trial Magistrate and confirmed by the First Appellate
Court as fine to the State is hereby set aside.
iii) Rest of the sentence stands unaltered.
Sd/-
JUDGE
LDC
List No.: 1 Sl No.: 48, CT: BHK
