Karnataka High Court
I R Manjunath vs C V Umadevi on 30 May, 2024
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CRL.RP No. 1004 of 2019
C/W CRL.RP No. 298 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 1004 OF 2019
C/W
CRIMINAL REVISION PETITION NO. 298 OF 2020
IN CRL.R.P NO. 1004 OF 2019
BETWEEN:
C V UMADEVI
W/O NAGESH
55 YEARS, RESIDING IN
UTTARADIMUTT ROAD
KOTE
HOLENARASIPUR TOWN - 573 211.
HASSAN DIST.
...PETITIONER
(BY SRI. SUBRAMANYA S N, ADVOCATE)
AND:
I R MANJUNATH
S/O RANGAIAH
37 YEARS, ICHANALLY
VILLAGE, KASABA HOBLI
HOLENARASIPUR TALUK
HASSAN DIST - 573 211.
...RESPONDENT
(BY SRI. CHETHAN B, ADVOCATE)
THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C
PRAYING SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE PASSED IN THE CASE BY THE CIVIL JUDGE AND
JMFC HOLENARSIPUR IN C.C.NO.1733/2014 DATED 10.07.2017
AND SECOND ADDITIONAL DISTRICT AND SESSIONS JUDGE
HASSAN IN CRIMINAL APPEAL NO. 134/2017 DATED
26.06.2019 AND ETC.,
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CRL.RP No. 1004 of 2019
C/W CRL.RP No. 298 of 2020
IN CRIMINAL REVISION PETITION NO. 298 OF 2020
BETWEEN:
I R MANJUNATH
S/O RANGAIAH
AGED ABOUT 43 YEARS
RESIDENT OF ICHANAHALLI VILLAGE
KASABA HOBLI
HOLENARASIPURA TALUK - 573 114.
HASSAN DISTRICT
...PETITIONER
(BY SRI. CHETHAN B, ADVOCATE)
AND:
C V UMADEVI
W/O NAGESH
AGED ABOUT 56 YEARS
RESIDENT OF UTTHARADHIUMATA ROAD
KOTE, HOLENARASIPURA TOWN
HOLENARASIPURA TALUK - 573 114
HASSAN DISTRICT
...RESPONDENT
(BY SRI. SUBRAMANYA S N, ADVOCATE)
THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C
PRAYING TO MODIFY THE FINE AMOUNT DETERMINED IN THE
JUDGMENT DATED 26-06-2019 PASSED IN CRIMINAL APPEAL
NO. 134/2017 ON THE FILE OF THE IIND ADDITIONAL
DISTRICT AND SESSIONS COURT AT HASSAN AND THE ORDER
DATED 10-07-2017 PASSED IN C.C.NO.1773/2014 ON THE
FILE OF THE COURT OF CIVIL JUDGE AND J.M.F.C AT
HOLENARASIPURA
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
ON 04.03.2024, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY, THE COURT MADE THE FOLLOWING:-
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CRL.RP No. 1004 of 2019
C/W CRL.RP No. 298 of 2020
ORDER
1. These two appeals have been filed by the respective
parties, being aggrieved by the orders of the Courts
below.
2. Crl.R.P No.1004/2019 is filed by the accused / appellant
being aggrieved by judgment of conviction and order of
sentence dated 10.07.2017 in C.C No.1773/2014 on the
file of Civil Judge and JMFC at Holenarasipura and its
confirmation order dated 26.06.2019 in Crl.A
No.134/2017 on the file of II Additional District and
Sessions Judge at Hassan.
3. Crl.R.P No.298/2020 is filed by the complainant /
respondent for enhancement of fine awarded by the Trial
Court. In fact, in an appeal filed by the accused, the
Appellate Court modified the fine from Rs.4,00,000/- to
Rs.3,05,000/-. Hence, the complainant filed this revision
petition.
4. The ranks of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case:
5. It is the case of the complainant that the accused had
borrowed a sum of Rs.3,00,000/- for his legal necessities
and agreed to repay the said amount within one month.
Towards repayment of the said loan, he had issued a
cheque for the said amount by mentioning the date as
03.09.2014. As per instructions, when it was presented
for encashment on 03.09.2014, the same came to be
dishonoured with a shara as 'insufficient funds'. A legal
notice was issued regarding the dishonour of cheque.
The said notice being served, the accused did not repay
the amount. Being aggrieved by the same, the
complainant lodged a complaint before the jurisdictional
Magistrate.
6. To prove the case of the complainant, the complainant
examined himself as PW.1 and got marked five
documents as Exs.P1 to P5. On the other hand, the
accused has not chosen to conduct the cross-examination
nor lead his defence.
7. Heard Sri.Subramanya S.N, learned counsel for petitioner
in Crl.R.P No.1004/2019 and learned counsel for
respondent in Crl.R.P No.298/2020 and Sri.Chethan.B,
learned counsel for petitioner in Crl.R.P No.298/2020 and
learned counsel for respondent in Crl.R.P No.1004/2019.
8. It is the submission of the learned counsel for petitioner
in Crl.R.P No.1004/2019 that the Courts below have failed
to take note of the fact that the accused did not conduct
cross-examination and made necessary application in that
regard, however, the accused was denied opportunity to
conduct cross-examination.
9. It is further submitted that the accused in an appeal filed
by her had made an application under Section 391 of
Cr.P.C for production of additional documents, however,
the application came to be rejected. Consequently, the
impugned judgments have been passed which caused
harm to the accused.
10. It is further submitted that opportunity should have
been given to the accused to conduct cross-
examination and produce certain documents for effective
defence. In fact, no such transaction has taken place
between the complainant and the accused, however,
accused has been dragged into the case falsely. If the
matter is remanded by setting aside the impugned
judgments, the accused would conduct cross-
examination and adduce her evidence by producing the
documents which are relevant to the case on hand.
Making such submission, the learned counsel for
petitioner prays to allow the petition.
11. Per contra, the learned counsel for respondent
vehemently justified the concurrent findings and
submitted that there is no dispute in respect of execution
of cheque by the accused, however, the accused orally
denied the transaction without conducting cross-
examination or without producing relevant documents to
prove that the cheque was given other than the debt or
liability.
12. It is further submitted that the Trial Court rightly
recorded the conviction and the Appellate Court
confirmed the same. In fact, the Trial Court granted
several opportunities to the accused to conduct cross-
examination, however, the accused remained absent and
the counsel who was supposed to conduct cross-
examination had also not co-operated with the
proceedings of the Court. Hence, the Trial Court rightly
recorded the conviction.
13. It is further submitted that in a case of such nature, if
the opportunity is given to conduct cross-examination, at
this stage, great hardship would be caused to the
complainant as he has paid the amount in the year 2014
and even after lapse of 10 years, he did not get back any
considerable amount. Therefore, it is not appropriate to
allow the petition. Making such submission, the learned
counsel for respondent prays to dismiss the petition.
14. After having heard the learned counsel for the respective
parties and also findings of the Courts below, it is
relevant to refer to the order sheet of the Trial Court to
conclude as to whether the matter requires to be
remanded to the Trial Court or not.
15. Admittedly, a complaint came to be registered on
30.09.2014. The accused appeared on receiving the
summons on 28.11.2014 and obtained bail. Thereafter,
the matter was set down for plea of the accused on
22.12.2015. On 18.02.2016, the complainant examined
himself as PW.1 and got marked several documents.
Thereafter, on 18.03.2016, 25.04.2016, 13.06.2016,
09.01.2017, the matter was adjourned for cross-
examination of PW.1. On 05.10.2016, the Court issued
NBW to the accused and on 02.05.2017 the accused
appeared before the Court and filed application for
recalling NBW and it was recalled and set down for
recording the statement under Section 313 of Cr.P.C. On
10.07.2017, the Trial Court passed the judgment.
16. On perusal of the order sheet, it appears that the accused
has not made any efforts to file application either to recall
or for consideration of any document, however, in an
appeal, an application for production of certified
documents had been filed on 22.03.2019. The said
application has been dealt in accordance with law by the
Appellate Court and disposed of by rejecting the said
application.
17. On careful reading of the entire evidence and documents,
it appears that the complainant has proved the
transaction and also proved the execution of cheque by
the accused. Of course, the accused should have made
necessary arrangements for cross-examination of PW.1 to
rebut the presumption.
18. On careful perusal of the order sheet of both the Courts
and also after having gone through the date of filing the
complaint, I am of the considered opinion that it is not a
fit case to remand the matter for trial. If such
opportunity is given to the accused in such cases, it would
be difficult to sustain the hope of the litigant who
approached the Court with clean hands.
19. In the present case, if any application is made to recall
the said witness and if it was denied by the Trial Court
and the Appellate Court, it would have been different.
However, the accused has not made any efforts to file
necessary application for recalling the witnesses to
conduct cross-examination and therefore, I decline to
interfere with the findings of the Courts below.
20. As regards, Crl.R.P No.298/2020 is concerned, the prayer
made by the learned counsel for the complainant to
enhance or modify the fine amount determined in the
judgment of the Appellate Court and restore the order of
the Trial Court in respect of the fine is concerned, of
course, the statute gives certain privileges to impose the
double cheque amount or maximum punishment,
however, the Courts are required to be cautious while
awarding the sentence.
21. In the present case, the Appellate Court even though
modified the fine amount imposed by the Trial Court, but
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has not assigned any reasons. Once the complainant has
made out a case, the Appellate Court should not have
modified the sentence without assigning any reasons. If
any modification order is made without assigning the
reasons, the said modification can be considered as an
arbitrary order.
22. It is needless to say that the complainant is entitled to
have the benefit of double the cheque amount, however,
the Trial Court after having considered the year of filing
the case and the minimum possible expenditure of the
litigant, awarded fine of Rs.4,00,000/- instead of making
the double the cheque amount, which is proper.
23. In the light of the observation made above, I proceed to
pass the following:
ORDER
i) Criminal Revision Petition No.1004/2019 filed
by the accused stands dismissed.
ii) Criminal Revision Petition No.298/2020 filed by
the complainant is allowed.
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iii) The fine amount imposed or modified by the
Appellate Court is set aside. The order of
sentence of imprisonment and fine of the Trial
Court is confirmed.
iv) The Registry is directed to send the records
along with copy of this order and the Trial Court
is directed to take necessary steps to execute
the sentence.
Sd/-
JUDGE
UN
