Karnataka High Court
B R Nikhilesh vs N Nandish on 30 May, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:18391
CRL.RP No. 282 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 282 OF 2020
BETWEEN:
1. B.R. NIKHILESH,
AGED 30 YEARS,
SON OF B.L. RAMESH BABU,
PARTNER: ESS NIKIS BUY AND SAVE,
NO.3 (OLD NO.245/1),
9TH CROSS, N.R. COLONY,
BANGALORE - 560 019.
2. SMT. SHRUTHI B.R,
AGED 31 YEARS,
DAUGHTER OF B.L. RAMESH BABU,
PARTNER: ESS NIKIS BUY AND SAVE,
NO.3 (OLD NO.245/1),
9TH CROSS, N.R. COLONY,
BANGALORE - 560 019.
...PETITIONERS
Digitally
signed by (BY SRI. M.K. VENKATRAMANA, ADVOCATE)
MALATESH
KC AND:
Location:
HIGH N. NANDISH,
COURT OF AGED ABOUT 44 YEARS,
KARNATAKA
SON OF LATE N. NAGARAJ,
RESIDING AT NO. 65, FIRST BLOCK,
FIRST MAIN ROAD,
SAI BABA MANDIR ROAD,
THYAGARAJANAGAR,
BANGALORE - 560 028.
...RESPONDENT
(BY SRI. A.V. RAMAKRISHNA, ADVOCATE)
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NC: 2024:KHC:18391
CRL.RP No. 282 of 2020
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO 1. SET ASIDE THE JUDGMENT DATED 05.10.2019
PASSED IN CRL.A.NO.271/2015 ON THE FILE OF THE LV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH-56).
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.M.K.Venkatramana, 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 CC
No.5665/2014, whereby the accused is convicted for the
offence punishable under Section 138 of the Negotiable
Instruments Act and ordered to pay Rs.5,05,000/- out of
which sum of Rs.5,00,000/- is ordered to be paid as
compensation to the complainant and balance sum of
Rs.5,000/- is to be appropriated towards the defraying
expenses of the State which was confirmed in Criminal
Appeal No.271/2015.
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3. Brief facts of the case which are utmost
necessary for the disposal of the present revision petition
are as under:
Compliant averments before the Trial Court reveals
that in the first week of April 2013, accused approached
the complainant for financial assistance for a sum of
Rs.5,00,000/- with an assurance to repay the same within
a short period of time. Despite lapse of three months, the
accused did not repay the said amount. After repeated
demands, a cheque bearing No.441570 dated 04.09.2013
for a sum of Rs.5,00,000/- was drawn on Bank of India,
Bengaluru Main Branch, Bengaluru, was issued by the
accused in favour of the complainant, which on
presentation came to be dishonored with an endorsement
'exceeds arrangements'. Thereafter, the legal notice came
to be issued. There is no compliance to the callings of the
notice nor there was any reply. Therefore, the
complainant was constrained to file the complaint to take
action for the offence punishable under Section 138 of the
Negotiable Instruments Act.
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4. Presence of the accused was secured before the
Trial Court and the plea was recorded. Accused pleaded
not guilty. Therefore, the trial was held.
5. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and relied on
10 documentary evidence on record which were exhibited
and marked as Exs.P.1 to Ex.P.9 comprising of dishonored
cheque, bank endorsement, copy of the legal notice,
postal receipts and acknowledgements.
6. In order to rebut the evidence placed on record
by the complainant, accused got examined himself as
D.W.1 and did not choose to place any documentary
evidence on record.
7. Thereafter, the learned Trial Judge recorded the
accused statement as contemplated under Section 313 of
Cr.P.C. wherein, the accused has denied all the
incriminatory circumstances. Subsequent there to, learned
Trial Judge heard the matter and by the judgment dated
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27.01.2014, convicted the accused for the offence
punishable under Section 138 of the Negotiable
Instruments Act and sentenced as referred to supra.
8. Being aggrieved by the said order of conviction
and sentence passed by the learned Trial Magistrate,
accused filed an appeal before the First Appellate Court in
Criminal Appeal No.271/2015.
9. The learned Judge in the First Appellate Court
after securing the records and hearing the arguments of
the parties, dismissed the appeal of the accused vide
judgment dated 05.10.2019.
10. Being aggrieved by the same, the accused is
before this Court.
11. Reiterating the grounds urged in the revision
petition, Sri.M.K.Venkatramana, learned counsel for the
petitioner vehemently contended that both the Courts
have failed to appreciate the material evidence on record
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in its proper perspective and sought for allowing the
revision petition.
12. He also pointed out that the cheque in issue
was in fact given by the accused in favour of the brother of
the complainant which has been misused by the
complainant and there was no consideration passed as is
contended by the complainant in the complaint and sought
for allowing the revision petition.
13. Sri.A.V.Ramakrishna, learned counsel for the
respondent is absent.
14. In the light of the arguments put forth on behalf
of the petitioner, this Court perused the material on
record, meticulously.
15. On such perusal of the material on record, there
is no dispute that the cheque is issued by the accused in
the name of complainant. According to the accused, it is
issued to the elder brother of the complainant. No
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material evidence is placed on record in respect of the
same. There is no dispute as to the signature found in the
cheque.
16. If the case of accused is that the cheque that
has been issued in favour of the brother of the
complainant has been misused, some positive action
should have been taken by the accused atleast after he
entered appearance with the assistance of an Advocate in
the criminal case before the learned Trial Magistrate. No
such effort has been made by him.
17. Further, the elder brother of the complainant is
also not cited as a witness on behalf of the accused to
establish that the cheque has been infact issued in favour
of the elder brother of the complainant. No counter foil is
produced before the Court to establish that in fact the
cheque was issued in favour of the elder brother of the
complainant.
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18. Under such circumstances, the learned Trial
Magistrate was justified in holding that there is a
presumption in favour of the complainant as is
contemplated under Section 139 of the Negotiable
Instruments Act.
19. No doubt, the said presumption is a rebuttable
presumption but the material evidence placed on record in
the form of oral testimony of the accused, did not rebut
the said presumption. Accordingly, convicting the accused
for the offence punishable under Section 138 of the
Negotiable Instruments Act is thus justified.
20. Learned Judge in the First Appellate Court after
reappreciating the material on record, categorically
recorded a finding that the conviction of the accused is
just and proper.
21. But both the Courts have failed to consider that
the lis is between the two private parties and there was no
State machinery involved. Accordingly, imposing fine of
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Rs.5,05,000/- and ordering the fine amount of Rs.5,000/-
towards the defraying expenses of the State is thus
incorrect. To that extent, both the judgments needs
interference of this Court.
22. Accordingly, the following:
ORDER
i. 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, fine amount of Rs.5,05,000/- is reduced
to Rs.5,00,000/- and Rs.5,000/- is ordered
to be paid to the State towards the
defraying expenses is hereby set aside.
ii. Rest of the sentence stands unaltered.
Sd/-
JUDGE
