Karnataka High Court

K K Rangaraju vs M B Narayanaswamy on 4 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                               CRL.RP No. 898 of 2016




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 4TH DAY OF NOVEMBER, 2024

                                   BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                CRIMINAL REVISION PETITION NO. 898 OF 2016
            BETWEEN:

            K.K. RANGARAJU,
            S/O LATE KUNNA SHETTY,
            AGED ABOUT 59 YEARS,
            RESIDENT OF KESHTUR VILLAGE,
            YELANDUR TALUK,
            CHAMARAJANAGARA DISTRICT - 571 313.
                                                        ...PETITIONER
            (BY SRI. A.N. RADHA KRISHNA, ADVOCATE)
            AND:

            M.B. NARAYANASWAMY,
            S/O M.B. BASAVAIAH,
            AGED ABOUT 39 YEARS,
            R/A MADDUR VILLAGE,
            YELANDUR TALUK,
            CHAMARAJANAGARA DISTRICT - 571 313.
Digitally                                              ...RESPONDENT
signed by   (BY SMT. N.R. GIRISHA, ADVOCATE)
MALATESH
KC               THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
Location:   PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
HIGH
COURT OF    SENTENCE PASSED IN C.C.NO.108/2012, DATED 26.08.2015
KARNATAKA   BY THE CIVIL JUDGE AND JMFC, YELANDUR AND CONFIRMED
            BY THE PRL. DIST. AND S.J., CHAMARAJANAGAR IN
            CRL.A.NO.27/2015 DATED 04.06.2016.

                THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
            ORDER WAS MADE THEREIN AS UNDER:
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                                                NC: 2024:KHC:44284
                                            CRL.RP No. 898 of 2016




CORAM:      HON'BLE MR JUSTICE V SRISHANANDA


                         ORAL ORDER

Heard Sri.A.N.Radha Krishna, learned counsel for the

revision petitioner and Smt.N.R.Girisha, learned counsel

for the respondent.

2. Accused who suffered an order of conviction in

CC No.108/2012 dated 26.08.2015 on the file of Civil

Judge and JMFC, Yelandur for the offence punishable

under Section 138 of the Negotiable Instruments Act and

as against the cheque amount of Rs.75,000/-, learned

Trial Magistrate ordered to pay fine in a sum of

Rs.1,32,250/- with default of simple imprisonment for a

period of one year of which sum of Rs.1,22,250/- was

ordered to be paid as compensation to the complainant

which was confirmed in Crl.A.No.27/2015 dated

04.06.2016 on the file of Prl. District and Sessions Judge,

Chamarajanagar has preferred this present revision.

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3. Facts in the nut shell for disposal of the revision

petitioner are as under:

3.1. A complaint came to be lodged under Section

200 of Cr.P.C. with the jurisdictional Magistrate alleging

the commission of offence punishable under Section 138 of

the Negotiable Instruments Act by contending that

accused and complainant are well acquainted with each

other and in that acquaintance, accused borrowed sum of

Rs.75,000/- with a promise to repay the same in a short

period of time.

3.2. Towards repayment of the debt, cheque bearing

No.58987 dated 16.03.2012 in a sum of Rs.75,000/-

drawn on MCDCC Bank, Yelandur Branch was parted away

by the accused which on presentation came to be

dishonored with an endorsement 'funds insufficient'.

3.3. Legal notice was issued calling upon the

accused to pay the amount covered under the cheque.

Legal notice was served on accused on 07.05.2012 but

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there was no reply nor compliance to the callings of the

legal notice resulting in complainant seeking action against

the accused.

4. Learned Trial Magistrate after completing

necessary formalities, summoned the accused and

recorded the plea. Accused pleaded not guilty and

therefore, trial was held.

5. In order to prove the case of the complainant,

he got examined himself as P.W.1 and two more witnesses

namely K.Ramachandraiah and Srikantamurthy S., as

P.W.2 and 3. Among them, P.W.3 is the bank official of

the MCDCC bank where accused possessed the account.

Complainant placed on record, eight documentary

evidence which were exhibited and marked as Exs.P.1 to

P.8.

6. Detailed cross-examination both on factual

aspects and technical aspects of the complainant

witnesses, did not yield any positive material so as to

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disbelieve the version of the complainant or not to

dislodge the presumption available to the complainant

under Section 139 of the Negotiable Instruments Act

except for the fact that accused maintains two accounts in

MCDCC bank one in individual capacity and another in the

capacity of the President of Bhagiratha Fishermen

Association.

7. Accused statement as is contemplated under

Section 313 of Cr.P.C. was recorded by learned Trial

Magistrate, wherein accused has denied all the

incriminatory circumstances.

8. To rebut the presumption available to the

complainant under Section 139 of the Negotiable

Instruments Act, accused stepped into the witness box

and got examined himself as D.W.1 and placed on record

certified copy of the letter issued by the bank vide Ex.D.1.

9. In the cross-examination of D.W.1, he has not

specifically answered as to how many accounts he is

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possessing in MCDCC bank but he admitted that he is well

acquainted with both English and Kannada language.

10. He admits that he understood the contents of

legal notice marked at Ex.P.4 but he did not reply the

same. He also admitted that he has signed in few

documents in English and few documents in Kannada. He

further admits that he is facing similar cheque bounce

cases in T.Narasipura Court and he has also maintained

account of dishonored cheques.

11. On conclusion of recording of the evidence of

the parties, learned Trial Magistrate heard the parties in

detail and after considering the oral and documentary

evidence placed on record, convicted the accused as

aforesaid.

12. Being aggrieved by the same, accused has

preferred an appeal before the First Appellate Court in

Crl.A.No.27/2015.

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13. Learned Judge in the First Appellate Court after

securing the records, heard the parties in detail and on

reappreciation of the material evidence on record,

dismissed the appeal of the accused and confirmed the

order of sentence.

14. Being further aggrieved by the same, accused is

before this Court, in this revision.

15. Sri.A.N.Radha Krishna, learned counsel for the

revision petitioner/accused vehemently contended that

admittedly, the cheque marked at Ex.P.1 belongs to

Bhagiratha Fishermen Association which is a joint account

and there are two signatories which are necessary for

honoring the cheque issued by the sangha account.

Therefore, cheque being signed by the accused alone, the

cheque would not have been dishonored by the banker

with an endorsement 'funds insufficient' and cheque

should have been returned to the complainant for the

technical reasons that cheque did not contain two

signatures. Said aspect of matter is not properly

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appreciated by the learned Trial Magistrate and learned

Judge in the First Appellate Court and therefore, sought

for allowing the revision.

16. Per contra, Smt.N.R.Girisha, learned counsel for

the respondent supported the impugned orders.

17. In reply, Sri.A.N.Radha Krishna, learned

counsel for the revision petitioner contended that in the

event, this Court upholding the order of conviction may

reduce the fine amount reasonably.

18. Having heard the parties in detail, this Court

perused the material on record meticulously.

19. On such perusal of the material on record,

issuance of the cheque at Ex.P.1 and signature of the

accused in Ex.P.1 is not in dispute. All that accused is

contending that cheque at Ex.P.1 belongs to the joint

account of Bhagiratha Fishermen Association but said

cheque is to be signed by two persons for honouring the

same.

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20. In the case on hand, since Ex.P.1 is the cheque

that has been signed by accused alone ought not have

been dishonored with an endorsement funds insufficient

and therefore, sought for allowing the revision petition.

21. On careful scrutiny of the material on record in

this regard, it clearly shows that P.W.3 is the official of the

MCDCC bank. In his oral evidence, it has clearly admitted

that accused has got two accounts in his bank. One in the

individual capacity and another account in the name of

Bhagiratha Fishermen Association. He also specifically

stated that accused used to operate both the accounts by

himself.

22. These aspects of the matter have been taken

note of by the learned Trial Magistrate while holding that

the cheque in question was issued by the accused in his

individual capacity.

23. A specific question was also put to the accused

in his cross-examination in this regard as to how many

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accounts he has maintained and which is the individual

account and which is a joint account. Accused cleverly

gave an abasing answer to the said question and did not

specifically dispute that the cheque in question was that of

joint account. Therefore, learned Trial Magistrate taking

note of the same, held that when once the cheque is

issued and signature found therein is proved, the

complainant enjoys the presumption under Section 139 of

the Negotiable Instruments Act. Therefore, technical

argument put forth on behalf of the accused cannot be

countenanced in law.

24. In this regard, it is just and necessary to cull

out paragraph Nos.20 to 24 of Trial Court judgment which

reads as under:

"20. The further evidence of PW3 reveals that, Accused was having two accounts with the PW3's bank and one account was in the individual capacity of the Accused and another in the capacity of president of Bhagiratha Fishermen Association and Accused had obtained cheque books for both his accounts. It is stated by the PW3 that, he had given evidence in T. Narasipura in respect of cheque bounce cases filed against the Accused. Therefore, it is clearly established by the

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complainant that, the cheque and account both belong to the Accused and Accused has intentionally issued the cheque.

21. In the cross-examination of the PW3 the Advocate for Accused has cleverly asked the PW3 that," the Cheque in the present case belongs to the accused who is president of Bhagiratha Fishermen Association of Kestur" and that suggestion is admitted by PW3 as true.

22. But, the suggestion was not "the cheque in question was issued by the Accused in the capacity of president of the said Association". Therefore, accused has failed to prove that, joint account holder's signature was required and hence the offence under Section 138 of Negotiable Instruments Act was not attracted.

23. Learned counsel for the Accused has argued that, since the evidence of Complainant covers the aspect of joint account of the Accused, therefore, accused is not required to produce and mark his account book. But the Accused, as DW1 has replied evasively when asked how many accounts are maintained by him in the M.C.D.C.C. bank Yelandur. Accused is expected to prove that, the cheque in question was actually drawn on the joint account and therefore, even if funds are sufficient, the cheque was dishonored for the reason of "

another account holder's signature is required". But without production of his bank account pass books, the Accused can not expect the Court to believe his words as gospel truth.

24. DW1 has admitted that he knows Kannada and if anything is in English, he will get it read by others and understands the same. Therefore, Ex.P4 legal notice was served on the Accused on 07.05.2012 and inspite of getting it read by others and understood by the DW1, he has not tried to give proper reply."

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25. Why accused has chosen to sign in two different

languages is also a question that needs to be explained by

the accused under what circumstances, he signed the

cheque in question in a particular language is also to be

explained by the accused. Absolutely, there is no

explanation forthcoming from the accused in this regard.

26. All these factors have been cumulatively

appreciated by the learned Trial Magistrate while passing

an order of conviction. Learned Judge in the First

Appellate Court has also reappreicted these aspects of the

matter in the appeal filed by the accused and concurred

with the finding recorded by the learned Trial Magistrate in

convicting the accused for the aforesaid offences.

27. This Court, that too, in the revisional

jurisdiction, cannot revisit into the factual aspects of the

matter unless there is a patent factual defect in the case

of the complainant or if there is a improper exercise of

jurisdiction as is held by the Hon'ble Apex Court in the

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case of Amit Kapoor V/s. Rameshchandra reported in

(2012) SCC 460.

28. Taking note of these aspects of the matter, this

Court is of the considered opinion that the order of

conviction passed by both the Courts is based on sound

reasons and requires no interference in this revision

petition.

29. However, it is noticed that while imposing

sentence, without assigning any special reasons, learned

Trial Magistrate has imposed Rs.1,32,250/- as the fine

amount as against cheque amount of Rs.75,000/-. Out of

the which, sum of Rs.1,22,250/- was ordered to be paid as

compensation to the complainant and balance sum of

Rs.10,000/- towards the defraying expenses of the State.

Since lis is privy to the parties and no State machinery is

involved, awarding sum of Rs.10,000/- towards defraying

expenses of the State needs interference by this Court.

So also taking note of the fact that no special reasons are

forthcoming, ordering sum of Rs.1,10,000/- as the

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compensation to the complainant as against cheque

amount of Rs.75,000/- by reducing fine amount of

Rs.1,10,000/- from Rs.1,32,250/- would meet the ends of

justice.

30. 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 Instruments

Act, fine amount awarded by the learned

Trial Magistrate confirmed by the learned

Judge in the First Appellate Court is reduced

to sum of Rs.1,10,000/- from Rs.1,32,250/-.