Karnataka High Court

Deviprasad Shetty vs Sayyad Mohammed Haneef Saheb on 4 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                             CRL.RP No. 436 of 2021




              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. 436 OF 2021
            BETWEEN:

            DEVIPRASAD SHETTY,
            S/O LATE ANAND SHETTY,
            AGED ABOUT 35 YEARS,
            OCC: BUSINESS, R/O BALEBERU,
            SIDDAPURA POST AND VILLAGE,
            KUNDAPURA TALUK,
            UDUPI DISTRICT - 576 229.
                                                      ...PETITIONER
            (BY SRI. UMESH, ADVOCATE FOR
                SRI. R.B. DESHPANDE, ADVOCATE)

            AND:

            SAYYAD MOHAMMED HANEEF SAHEB,
            S/O SAYYED KASIM SAHEB,
Digitally
signed by   AGED ABOUT 55 YEARS,
MALATESH
KC          R/O SHRI. GANESH LAYOUT,
Location:   LIKEIT SOFT DRINKS,
HIGH        A1-KASIM MUSKHANI,
COURT OF
KARNATAKA   KODI ROAD, VODERHOBLI VILLAGE,
            KUNDAPURA TALUK,
            UDUPI DISTRICT - 576 201.
                                                     ...RESPONDENT
            (BY SRI. SHARATH P.H, ADVOCATE FOR
                SRI. SACHIN B.S, ADVOCATE)
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                                       CRL.RP No. 436 of 2021




     THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
05.10.2020 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS      JUDGE,    UDUPI     (SITTING     AT    KUNDAPURA)
KUNDAPURA IN CRL.A.NO.03/2017 AND THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE DATED 28.12.2016
PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C.,
KUNDAPURA      IN     C.C.NO.1320/2013        AND    ACQUIT      THE
PETITIONER OF CHARGES LEVELED AGAINST HIM.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                         ORAL ORDER

Heard the learned counsel Sri. Umesh for the revision

petitioner and Sri. Sharath for Sri. Sachin, B.S. for the

respondent.

2. This revision petition is by the accused who has

suffered an Order of Conviction in CC No.1320/2013 for

the offence punishable under Section 138 of Negotiable

Instruments Act and ordered to pay a fine of

Rs.8,50,000/- of which a sum of Rs.8,40,000/- was

ordered to be paid as compensation to the complainant

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and balance amount of Rs.10,000/- towards defraying

expense of the State which was confirmed in

Crl.A.No.3/2017.

3. Facts in brief which are utmost necessary for

disposal of the revision petition are as under:

A complaint was lodged under Section 200 Cr.P.C.

with the jurisdictional Magistrate alleging the commission

of the offence under Section 138 of N.I. Act on the ground

that accused purchased a Maxicab bearing registration

No.KA-20/B-1771 from the complainant on 21.09.2012 in

a sum of Rs.5,60,000/-. A sum of Rs.10,000/- was paid as

advance amount and for the balance sale consideration, a

cheque drawn on Karnataka Bank dated 21.09.2012 was

issued by the accused. The said Cheque on presentation

came to be dishonoured with an Endorsement "funds

insufficient". Callings of legal notice was not complied, but

an evasive reply was sent, resulting in complainant

seeking action against the accused.

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4. Learned Trial Magistrate after completing

necessary formalities, summoned the accused and

recorded plea. Accused pleaded not guilty. Therefore trial

was held.

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

complainant got examined himself as PW1 and a witness

who negotiated the price between the complainant and

accused by name Anwar as PW2. On behalf of

complainant, seven documents were placed on record

which are exhibited and marked as Exs.P1 to P7

comprising of dishonoured cheque, bank endorsement,

copy of the legal notice, postal acknowledgement, reply

notice, 'B' Register Extract.

6. Detailed cross-examination of PW1 and PW2 did

not yield any positive material so as to disbelieve the

version of the complainant nor to dislodge the

presumption available to the complainant under Section

139 of the N.I. Act.

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7. Thereafter, the Trial Magistrate recorded

accused statement as is contemplated under Section 313

of Code of Criminal Procedure. Accused has denied all the

incriminatory material.

8. In order to rebut the presumption available to

the complainant, accused got examined himself as DW1.

He did not place any documentary evidence on record in

support of his oral testimony.

9. In the cross-examination of DW1, he admits

that he did not take any action against the complainant.

He also admitted that the blank columns in the cheque

was filled up by himself and so also he received the signed

form Nos.29 and 30 on 01.07.2012.

10. Thereafter, learned Trial Magistrate heard the

parties in detail and on cumulative consideration of the

oral and documentary evidence placed on record convicted

the accused as aforesaid and imposed the fine.

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11. Being aggrieved by the same, accused filed an

appeal before the District Court in Crl.A.No.3/2017.

12. Learned Judge in the First Appellate Court after

securing the records heard the parties in detail and

thereafter dismissed the appeal.

13. Being further aggrieved by the same, accused is

before this Court in this revision petition on the following

grounds :

1) That the judgment and order of conviction passed by the courts below are illegal, contrary to law, evidence on record and probabilities of the case.

2) That the courts below have committed serious error in holding that the Respondent/Complainant has proved the guilt of alleged offence against the petitioner.

3) That the impugned judgment and order of the court below are illegal, invalid and erroneous.

4) That the courts below have committed serious error in coming to the conclusion that the mandatory requirement of Section 138 of the Negotiable Instruments Act has been fulfilled by the Respondent/Complainant.

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5) That the courts below ought to have considered fact that the evidence of P.W. 1 is contrary to averments in the complaint/Ex.P. 7 and evidence of P.W. 2 and the complainant/P.W. 1 are contrary to each other and suffer from serious discrepancies. Under these facts and circumstances the charges alleged in the complaint are not proved and hence petitioner is entitled for acquittal.

6) That the courts below failed to consider the evidence of D.W. 1 i.e. the petitioner and the document produced on behalf of defence i.e. Ex.D.1 in a proper prospective whose evidence would clearly disclose that Ex.P.1 was not issued towards legally recoverable debt. Infact the exchange of legal notice would clearly show that Ex.P.1 has been misused by the Complainant.

7) That the courts below have committed serious error in convicting the petitioner when the Respondent has miserably failed to prove the existence of legal debt and liability between the petitioner towards Respondent.

8) That the courts below have committed serious error in holding that the cheque Ex.P. 1 in question was issued in discharge of a legally recoverable debt. Infact it is the specific case of the petitioner that he had purchased the vehicle, Tempo-traveler for sum of Rs. 5,60,000/- from the complainant. Initially, he has paid Rs. 10,000/- as advance amount, and has paid the entire remaining amount Rs. 5,50,000/- at the time of taking delivery of possession of said vehicle. The day when he paid entire amount, the complainant has signed the Form No. 29 and

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30 and delivered the possession of the vehicle in his favour. On the date of delivery of vehicle petitioner had requested the complainant to return his blank signed cheque back to him for which it was informed to him that cheque was misplaced and would be returned after tracing it out but, thereafter not returned the cheque. These facts and circumstances would clearly disclose that as on the date of alleged presentation of cheque there was no legally recoverable debt or liability towards complainant and when there is dispute in respect of any liability, Section 138 of Negotiable Instrument Act is not at all attracted. These facts and circumstances clearly shows that the respondent has failed to prove the case beyond reasonable doubt and therefore the petitioner is entitled for acquittal.

9) That the courts below ought to have appreciated the defense version of the petitioner that Ex.P.1 was issued in the form of blank signed cheque to the complainant initially as security and further the case of the complainant is contrary to the documents produced by him as stated supra and also the cross examination of petitioner i.e. DW1 clearly proves the defense version. Thus without considering these aspects the courts below committed serious error in convicting the petitioner.

10) That the courts below have not appreciated the materials produced by the petitioner in a proper prospective.

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11) That the courts below ought to have drawn adverse inference in case of the Respondent as the Respondent has deliberately suppressed the material facts and he is not a truthful witness.

12) That the courts below committed serious error in convicting the petitioner though petitioner had probebalised his defense by cross-examining the prosecution witnesses and by examining himself as D.W.

1. Under these circumstances the petitioner has rebutted/probabalised his defence. Under these circumstances the conviction of the petitioner is unsustainable and the conviction is liable to be set-aside.

13) That the appellate court properly re- appreciating the evidence and material produced by the petitioner has blindly passed impugned order.

14) That the courts below have committed serious error in convicting the petitioner when the Respondent has not proved his case with cogent evidence on the other hand the defence as proved his case. Further it is pertinent to note that the courts below have not considered the main issue in the case i.e. in respect of debt/liability. It is submitted that when there is a serious dispute in respect of debt/liability which is also brought on record by petitioner by leading cogent evidence, the courts below ought to have dismiss the complaint which is the nature of penal liability and thus acquitted the petitioner from the charges leveled against him.

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15) That the courts below ought to have acquitted the petitioner on the ground that the initial burden is on the Respondent to prove that the cheque has been issued in respect of any liability as per law, and the same has been disputed by the petitioner by placing cogent materials on record and as such the Respondent has miserably failed to prove the legal debt or liability on the part of the petitioner.

16) That the courts below have fallen into serious error in not taking into account that the petitioner has successfully proved his case by producing reliable material documents and examining witness. Further in criminal case an accused need not prove his case beyond reasonable doubt. Under these circumstances the petitioner is entitled for acquittal.

17) That the courts below ought to have drawn adverse inference against the complainant when he has deliberately suppressed the material evidence in respect of the actual transaction.

18) That the trial court has not properly construed the Section 138, 139 and 140 of the Negotiable Instruments Act in the absence of any corroborative evidence to prove the case.

19) That the courts below ought to have accepted the reported decision relied upon by the petitioner in support of his case.

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20) That the courts below have committed serious error in not taking into account that the petitioner has successfully rebutted the evidence as required under Section 138 of the Negotiable Instrument Act. Further the trail Court has not followed the procedure prescribed under Section 326 of Cr.P.C and also not passed any order to try the case as warrant case.

21) That the sentence passed by the courts below are harsh and severe.

22) That the entire approach of the courts below is illegal, invalid and the same has resulted in mis-carriage of justice.

14. Learned counsel Sri. Umesh for the revision

petitioner reiterating the grounds urged in the revision

petition vehemently contending that both the courts have

not properly appreciated the oral and documentary

evidence on record and wrongly convicted the accused for

the offence punishable under Section 138 of N.I. Act

resulting in miscarriage of justice and sought for allowing

the revision petition.

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15. Alternatively, he contended that in the event,

this Court upholding the Order of conviction, may consider

the question of reducing the fine amount and sought for

allowing the revision petition to that extent.

16. Per contra, counsel for the respondent has

supported the impugned Order.

17. Having heard the parties in detail, this Court

perused the material on record meticulously. On such

perusal of the material on record, the following points are

arise for consideration :

(i) Whether the revision petitioner is able to point out any patent factual error or error of jurisdiction resulting in the impugned judgment to be termed as perverse in nature so as to call for interference by this Court in this revision petition?

(ii) Whether the sentence is excessive?

(iii) What order?

18. Regarding point No.1 :

In the case on hand, transaction of sale of a Maxicab

bearing registration No.KA-20/B-1771 by the complainant

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in favour of the accused is not in dispute. Cross-

examination of DW1 amply establishes that she obtained

the delivery of the vehicle in question on 01.07.2012 along

with signed form Nos.29 and 30. The said admission

coupled with the oral testimony of PWs.1 and 2 would

establish the transaction in question.

19. It is the case of the complainant that a sum of

Rs.10,000/- was paid as an advance amount and balance

sum of Rs.5,50,000/- was paid by the accused by way of

Cheque marked at Ex.P1. It is the specific case of the

complainant that said cheque was dishonoured for want of

funds. Legal Notice was received by the accused and an

evasive reply was sent by the accused. By placing on

record the copy of the legal notice, copy of the

dishonoured cheque and transaction having been admitted

by the accused, the Trial Magistrate rightly invoked the

presumption available to the complainant under Section

139 of N.I. Act. No doubt, said presumption is a rebuttable

presumption.

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20. In order to rebut the presumption, the accused

has stepped into the witness box and examined himself as

DW1.

21. Suggestion was also made to PW1 that the

accused had repaid the entire amount of Rs.5,50,000/- in

cash and therefore he demanded the blank cheque issued

by him from the complainant, but complainant had replied

that he had misplaced the same.

22. Contrary to said suggestion, DW1 in his Cross-

examination admitted that all the blank columns of the

cheque was filled by him. Further, no normal prudent

person would pay a sum of Rs.5,50,000/- in cash without

taking a receipt or without the presence of witnesses.

Likewise, even after sending the reply, when the

complainant has initiated the action for the offence

punishable under Section 138 of Negotiable Instruments

Act, accused having had the benefit of services of a legal

practitioner, would not keep quite in not taking any action

against the complainant if at all, if there is a misuse of the

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Cheque in question as contended by the accused, that too,

when the amount involved under the Cheque is

Rs.5,50,000/-.

23. All these factors were considered by the learned

Trial Magistrate in a cumulative manner and has noted

that the oral testimony of PW1 was not sufficient enough

to rebut the presumption available to the complainant

under Section 139 of N.I. Act and has thus rightly

convicted the accused and which has been properly

appreciated by the learned Judge in the First Appellate

Court.

24. In view of the foregoing reason, this Court has

no hesitation whatsoever in affirming the finding of the

guilt of the accused insofar as the offence punishable

under Section 138 of N.I. Act and thus, point No.1

answered in the 'Negative'.

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25. Regarding Point No.2:

Admittedly, Cheque was issued in the month of July

2012. In respect of the dishonoured cheque, the trial was

dragged on from 2013 to 2016. Later on, matter was

pending before the Appellate Court for a period of three

years.

26. Taking note of the interest rate prescribed

under Section 80 of the N.I. Act, imposing the fine amount

of Rs.8,50,000/- as compensation as against the Cheque

amount of Rs.5,50,000/- in the facts and circumstnaces of

the case is justified.

27. However, it is noted that sum of Rs.10,000/-

fine amount was also ordered to be paid fine amount

towards the defraying expenses of the State by the Trial

Magistrate which was confirmed by the First Appellate

Court. Since lis is privy to the parties and no State

machinery was involved, imposing the fine amount of

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

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cannot be countenance in law. Therefore, the same needs

interference in this revision. Accordingly, point No.2 is

answered 'partly in the affirmative'.

28. Regarding point No.3:

In view of the findings of this Court on Point Nos.1

and 2 as above, following Order is passed :

ORDER

(i) Criminal Revision Petition is allowed in part.

(ii) While maintaining the conviction of the accused

for the offence punishable under Section 138 of

Negotiable Instruments Act, fine amount

ordered by the Trial Magistrate confirmed by

the First Appellate Court in a sum of

Rs.8,50,000/- is reduced to Rs.8,40,000/-.