Karnataka High Court
Sir M Chandrashekar vs Sri Kashivishwanatha M P on 29 May, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 81 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 81 OF 2020
BETWEEN:
SIR. M.CHANDRASHEKAR,
AGED ABOUT 42 YEARS, S/O. SADASHIVAPPA,
R/O SALUR VILLAGE, ANJANAPURA HOBLI,
SHIKARIPURA TALUK,
SHIVAMOGGA - 577 427.
...PETITIONER
(BY SRI. KENDULI SHIDARAYA., ADVOCATE)
AND:
SRI. KASHIVISHWANATHA M.P.,
S/O. PALAKSHAPPA GOWDA,
AGED ABOUT 54 YEARS, R/OF SALUR VILLAGE,
ANJANAPURA HOBLI, SHIKARIPURA TALUK,
SHIVAMOGGA - 577 427.
Digitally ...RESPONDENT
signed by
MALATESH (BY SRI. N.G.PARAMESHWARAPPA, ADVOCATE)
KC
Location:
HIGH THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C., PRAYING
COURT OF TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED
KARNATAKA AGAINST THE PETITIONER ON 08.03.2019 IN C.C.NO.522/2015 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, AT
SHIKARIPURA FOR THE OFFENCE P/U/S.138 OF NI ACT AND ALSO
SET ASIDE THE JUDGMENT AND ORDER DATED 17.10.2019 PASSED
IN CRL.A.NO.88/2019 ON THE FILE OF THE III ADDITIONAL
SESSIONS JUDGE, AT SHIVAMOGGA, WHERE THE APPELLANT COURT
HAS CONFIRMED THE ORDER OF CONVICTION PASSED BY THE
TRIAL COURT DATED 08.03.2019 AND ETC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.RP No. 81 of 2020
ORDER
Heard Sri. Kenduli Shidaraya, learned counsel for the
petitioner. None present on behalf of the respondent.
2. The present revision petition is filed challenging the
order of conviction and sentence passed in C.C.No.522/2015
on the file of the Principal Civil Judge and JMFC, Shikaripura,
which is confirmed in Crl.A.No.88/2019 on the file of
the III Additional Sessions Judge, Shivamogga.
3. The facts in brief which are utmost necessary for
disposal of the revision petition are as under:
A complaint came to be filed under Section 200 of
Cr.P.C., by the respondent-complainant alleging that the
accused approached the complainant during the
year 2011 requesting hand-loan in a sum of Rs.4,00,000/-.
Accused had promised to repay the same within a
period of six months but failed to do so and ultimately on
repeated demands, he issued a cheque bearing No.259182
drawn on Canara Bank, Salur Branch. The said cheque
on presentation came to be dishonored with an endorsement
'funds insufficient'. Thereafter, a legal notice was issued by the
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respondent to the accused on 03.09.2014 and the same
is served on the accused on 04.09.2024 and there is no
compliance nor reply to the said legal notice. Accordingly,
a complaint came to be filed by the complainant before the trial
Court and the learned Magistrate took cognizance and
summoned the accused before the trial Court and recorded his
plea. Accused did not plead guilty, therefore, trial was held.
4. In order to establish the case of the complainant,
complainant got examined himself as PW.1 and placed on
record five documentary evidence, which were exhibited and
marked as Exs.P1 to P5, comprising of Cheque, Bank
Endorsement, Legal Notice, Postal Receipt and Postal
Acknowledgement.
5. As against the evidence placed on record by the
complainant, accused examined himself as DW.1 and
placed on record five documentary evidence, which were
exhibited and marked as Exs.D1 to D5, comprising of
Statement of Account, Complaints, Order Sheet in PCR
No.113/2015 and Certified copy of Cheque dated 07-08-2014.
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6. On conclusion of recording of evidence,
the learned Magistrate recorded the accused statement,
where the accused has denied all the incriminating
circumstances. Thereafter, the learned trial Judge heard the
parties and convicted the accused for the offence punishable
under Section 138 of the Negotiable Instruments Act, 1881
(for short 'N.I.Act') and awarded a fine of Rs.4,30,000/-
out of which, Rs.4,25,000/- was paid as compensation to the
complainant and balance amount of Rs.5,000/- was paid
to the State towards defraying expenses of the State.
7. Being aggrieved by the said judgment, the accused
preferred an appeal before the First Appellate Court
in Crl.A.No.88/2019. The learned Judge of the First Appellate
Court secured the records and after hearing the parties,
dismissed the appeal filed by the accused and confirmed
the order of conviction and sentence. Being aggrieved by the
same, the accused-petitioner is before this Court.
8. Learned counsel for the revision petitioner,
reiterating the grounds urged in the petition,
contended that the cheque in question was issued
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as a 'security' in the chit transaction and to establish
the same, the accused has produced the separate cheque
issued by him in favour of the complainant by Ex.D5
and the said aspect of the matter has not been properly
appreciated by both the Courts and the same has resulted
in miscarriage of justice and sought for allowing the
revision petition.
9. The respondent was served and engaged the
services of learned counsel Sri. N.G.Parameswarappa, who is
absent today.
10. Under these circumstances, this Court
perused the materials on record in light of the argument
put forth on behalf of the revision petitioner.
11. On perusal of the materials on record, it is crystal
clear that the cheque issued by the accused is not
in dispute, so also signature found therein.
12. Admittedly, cheque has been dishonored on the
ground that 'funds insufficient' and legal notice though served
on the revision petitioner, he did not chose to reply to the same
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nor complied with the order of notice and when once the
cheque is issued by the accused and signature therein is not
disputed, the complainant enjoyed the presumption as is
contemplated under Section 138 of the N.I.Act.
13. No doubt, it is rebuttal presumption and the
accused is required to rebut the same by placing cogent and
convincing evidence on record. In order to discharge the said
burden, the revision petitioner has placed on record his oral
evidence coupled with documentary evidence, which were
exhibited and marked as Exs.D1 to D5.
14. On perusal of the defence evidence on record,
it is the say of the accused that the cheque was not
given force legally towards the purpose of 'security' in respect
of the chit transaction. Such oral evidence was not
probabilized by placing necessary documentary evidence on
record by the accused and therefore, the evidence placed on
record by the accused is hardly sufficient to rebut the
presumption available to the complainant as is contemplated
under Section 138 of the N.I.Act.
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15. Under such circumstances, the trial Court was
justified in convicting the accused and learned Judge of the
First Appellate Court after re-appreciating the materials on
record, confirmed the order of conviction and sentence. But it
is seen that both the Courts have misdirected themselves in
ordering a sum of Rs.5,000/- to the State out of fine amount of
Rs.4,30,000/-.
16. Admittedly, the lis between the complainant and
accused is privy to the parties and therefore, no State
missionary was involved. Accordingly, award in a sum of
Rs.5,000/- towards defraying expenses of the State cannot be
countenanced in law. To that extent, the revision petition
should succeed.
17. Hence, the following:
ORDER
(i) Revision Petition is allowed-in-part by maintaining the
order of conviction imposed fine restricted to
Rs.4,25,000/- payable to the complainant and award of
Rs.5,000/- to the State is hereby set-aside; and
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(ii) Rest of the sentence stands unaltered.
Sd/-
JUDGE
SMJ
