Karnataka High Court

Sri.Y.C. Raghunath Nadig vs Sri. Sunil Kumar .S on 6 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                  NC: 2024:KHC:44715
                                             CRL.RP No. 1118 of 2023




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

               DATED THIS THE 6TH DAY OF NOVEMBER, 2024

                                    BEFORE
                   THE HON'BLE MR JUSTICE V SRISHANANDA
             CRIMINAL REVISION PETITION NO. 1118 OF 2023

            BETWEEN:

            SRI.Y.C. RAGHUNATH NADIG
            S/O. Y.N. CHANDRASHEKRAIAH,
            AGED ABOUT 53 YEARS,
            R/A NO.633, 4TH CROSS,
            BANASHANKARI 1ST STAGE,
            2ND BLOCK, BANGALORE - 560050
                                                       ...PETITIONER
            (BY SRI. GIRISH S., ADVOCATE)

            AND:

            SRI. SUNIL KUMAR.S
            S/O. SUBRAMANI
Digitally   AGED ABOUT 40 YEARS,
signed by
MALATESH    R/AT NO.602, 4TH CROSS,
KC          BANASHANAKARI 1ST STAGE,
Location:   2ND BLOCK, BANGALORE - 560 050
HIGH
COURT OF                                              ...RESPONDENT
KARNATAKA
            (RESPONDENT - SERVED)

                 THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
            TO SET ASIDE THE JUDGMENT DATED 19.08.2021 PASSED IN
            C.C.NO.6578/2018 BY COURT OF SMALL CAUSES AND XXVI
            ACMM AT BENGALURU CONVICTING THE PETITIONER FOR THE
            OFFENCE P/U/S.138 OF NI ACT AND SENTENCING PETITIONER
            TO PAY TOTAL FINE AMOUNT OF RS.4,10,000/- AND IN
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                                                 NC: 2024:KHC:44715
                                         CRL.RP No. 1118 of 2023




DEFAULT TO UNDERGO A SIMPLE IMPRISONMENT FOR SIX
MONTHS AND ETC.

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


CORAM: HON'BLE MR JUSTICE V SRISHANANDA

                         ORAL ORDER

Heard Sri Girish S., learned Counsel for the revision

petitioner. Respondent served and unrepresented.

2. The accused who suffered an order of conviction in

C.C.No.6578/2018 for the offence punishable under

Section 138 of Negotiable Instruments Act, 1881

(hereinafter referred to as 'N.I.Act', for short) confirmed in

Crl.A.No.602/2021 has preferred the present revision

petition.

3. Facts in nutshell for the disposal of the revision

petition are as under:

A complaint came to be lodged under Section 200

Cr.P.C. alleging the commission of the offence under

Section 138 of the N.I. Act by the accused. Complaint

averments reveal that the accused approached the

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complainant for financial assistance in a sum of

Rs.3,30,000/- as hand loan with a promise to repay the

same within a period of four months. Considering the

urgency pleaded by the accused, complainant lent a sum

of Rs.3,30,000/- during the second week of June 2017.

Towards the repayment of the said hand loan, accused

issued a cheque bearing No.051136 dated 20.10.2017 in a

sum of Rs.3,30,000/- drawn on Shamrao Vithal Co-

operative Bank, Chamarajpet Branch, Bengaluru. The said

cheque on presentation came to be dishonoured with an

endorsement 'funds insufficient'.

4. A notice came to be issued by the complainant

calling upon the accused to make good the amount

covered under the cheque. Accused has sent an untenable

reply. Therefore complainant sought for action against the

accused.

5. Learned Trial Magistrate after completing the

necessary formalities, summoned the accused. Accused

entered appearance and engaged the services of an

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Advocate. Plea was recorded. Accused pleaded not guilty.

Therefore, trial was held.

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

complainant got himself examined as PW1 and placed on

record four documents which were exhibited and marked

as Exs.P1 to P4 comprising of dishonoured cheque, bank

endorsement, copy of the legal notice and reply notice.

7. Detailed cross-examination of the complainant 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.

8. The theory put forward by the accused that the

cheque was issued in favour of the Uncle of the

complainant by name Sri Venkatesh and the said cheque

was handed over by Venkatesh to the complainant which

was misutilized by the complainant was not established in

the cross-examination of PW1.

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9. Thereafter, learned Trial Magistrate recorded the

accused statement as is contemplated under Section 313

Cr.P.C. Accused has denied all the incriminating materials

that were put to him.

10. In order to rebut the presumption available to

the complainant, accused stepped into the witness box

and got himself examined as DW1. He placed on record

23 documents which were exhibited and marked as Exs.D1

to D23 comprising of the certified copy of the legal notice

in C.C.No.842/2018, certified copies of documents

produced in the said case, certified copy of the legal notice

in C.C.No.6939/2018 and other documents, certified copy

of the legal notice in C.C.No.5997/2018 and other

documents in the said case, certified copy of the legal

notice in C.C.No.5822/2018 and other documents in the

said case, statement of account maintained by the

accused in Shama Rao Vithal Co-operative Bank,

statement of account maintained by the accused in ICICI

bank belonging to the accused.

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11. In cross-examination of DW1, he has admitted

that cheque at Ex.P1 belongs to him and the signature

found therein is also his signature. He further admits that

he did not take any action against Venkatesh or the

complainant about the alleged misuse of the cheque.

12. On conclusion of the recording of evidence,

learned Trial Magistrate heard the parties in detail and

convicted the accused for the offence punishable under

Section 138 of the N.I.Act and imposed the fine amount of

Rs.4,10,000/- as against the cheque amount of

Rs.3,30,000/-. Out of the fine amount, sum of

Rs.4,00,000/- was ordered to be paid as compensation to

the complainant and balance amount of Rs.10,000/-

towards defraying expenses of the State.

13. Being aggrieved by the same, accused preferred

an appeal before the District Court in Crl.A.No.602/2021.

14. Learned Judge in the First Appellate Court after

securing the records, heard the parties in detail and on

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re-appreciation of the material on record dismissed the

appeal of the accused.

15. Being further aggrieved by the same, accused is

before this Court in this revision.

16. Sri Girish S., learned Counsel for the revision

petitioner reiterating the grounds urged in the revision

petition contended that the complainant is a total stranger

to the accused and the cheque that was issued by the

accused in favour of Sri Venkatesh who is the Uncle of the

complainant, has been misutilised by the complainant and

there was no legally recoverable debt under Ex.P1 cheque.

17. Therefore, conviction of the accused for the

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

the Trial Court and confirmed by the First Appellate Court

has resulted in miscarriage of justice and sought for

allowing the revision petition.

18. The respondent though served remained absent

before this Court.

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19. Accordingly, this Court perused the material on

record meticulously in the light of the arguments put forth

on behalf of the revision petitioner.

20. On such perusal of the material on record, it is

crystal clear that the cheque in question does belong to

the accused and signature found therein is that of the

accused. All that the accused is trying to make out a case

before this Court is that, not only the complainant but also

the colleagues of the complainant have all misused the

cheques that were given by the accused in favour of

Venkatesh and all of them have engaged the services of

one and the same advocate that of the advocate for

complainant and several complaints have been filed

against the accused as a retaliation attitude by Venkatesh

on demand made by the accused for the return of the

security deposit.

21. Accused further took up a contention that

accused was a tenant in a house owned by said Venkatesh

and when he vacated the said house, the cheque that was

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given as security was retained by Venkatesh and he got it

filed different cases through complainant and similarly

placed complainants which are found in Exs.D1 to D21.

22. The said aspect of the matter has been

considered by the learned Trial Magistrate after raising

necessary presumption in favour of the complainant as is

contemplated under Section 139 of the N.I. Act.

23. Mere filing of different cases by different

complainants engaging the services of a common advocate

itself would not be sufficient enough to hold that accused

has rebutted the presumption available to the complainant

as is found in Section 139 of the N.I. Act.

24. Further, mere marking of documents in some

other complaints would not ipso facto make out a case

that complainant is a stranger to the accused.

25. Accused in his cross-examination admitted that

complainant was staying in the opposite house of the

accused. Accused has also admitted that complainant

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used to park his vehicles in the house where the accused

was occupying. Therefore, the theory that is put forward

by the accused that complainant is a total stranger and he

has misutilized the cheque which was parted away by the

accused in favour of Venkatesh cannot be countenanced in

law.

26. Crowning all these aspects of the matter,

accused did not choose to summon Venkatesh to establish

that he had actually handed over Ex.P1 cheque to the

hands of Venkatesh in respect of a tenancy transaction as

security. Therefore, further, no normal prudent person

would keep quiet if a cheque is misutilized that too, in a

sum of Rs.3,30,000/- without taking any legal action.

Accused in his cross-examination has categorically

admitted that he has not taken any legal action either

against Venkatesh or against the complainant for the

alleged misuse of the cheque. All these aspects of the

matter has been considered in a cumulative manner by the

Trial Magistrate while recording an order of conviction

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against the accused and imposing the fine of

Rs.4,10,000/-.

27. However, awarding a sum of Rs.10,000/-

towards the defraying expenses of the State cannot be

sustained in the eye of law, as the lis is privy to the

parties and no State machinery is involved. To that

extent, impugned order needs interference by this Court in

this Revision Petition.

28. In view of the foregoing discussion, this Court

proceeds to pass the following:

ORDER

(1) Criminal Revision Petition is allowed in

part.

(2) While maintaining the order of conviction

passed against the accused by the Trial

Magistrate and confirmed by the First

Appellate Court for the offence punishable

under Section 138 of N.I. Act and fine

amount of Rs.4,10,000/- is reduced to a