Karnataka High Court

Smt Kalpana vs Smt Selvee on 8 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                  NC: 2024:KHC:45607
                                             CRL.RP No. 1328 of 2019




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 8TH DAY OF NOVEMBER, 2024

                                    BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
               CRIMINAL REVISION PETITION NO. 1328 OF 2019
            BETWEEN:

            SMT. KALPANA,
            W/O. SHIVARAJ,
            AGED ABOUT 50 YEARS,
            R/AT NO.1/8, 9TH MAIN,
            VENKATAPPA LAYOUT, BSK III STAGE,
            HOSAKEREHALLI, BENGALURU - 560 085.
                                                       ...PETITIONER
            (BY SRI. VIJAY SHETTY B, ADVOCATE)
            AND:

            SMT. SELVEE,
            W/O KRISHNA,
            AGED ABOUT 60 YEARS,
            R/AT NO.30, II MAIN,
            DATTATHREAYANAGAR,
            HOSAKEREHALLI, BENGALURU - 560 085.
Digitally                                             ...RESPONDENT
signed by   (BY SRI. NAGABHUSHAN R, ADVOCATE)
MALATESH
KC               THIS CRL.RP IS FILED U/S 397 R/W 401 PRAYING TO SET
Location:   ASIDE THE JUDGMENT AND ORDER OF DISMISSAL OF CRL.A
HIGH
COURT OF    PASSED BY THE HONBLE LVI ADDITIONAL CITY CIVIL AND
KARNATAKA   SESSIONS JUDGE, BENGALURU CCH-57 IN CRL.A.NO.128/2017
            DATED 14.10.2019, FILED AGAINST THE JUDGMENT AND
            SENTENCE PASSED BY THE HONBLE XVI A.C.M.M., AT
            BENGALURU IN C.C.NO.30587/2014 DATED 02.01.2017, BY
            ALLOWING THE ABOVE PETITION AND BY ACQUITTING THE
            PETITIONER/ACCUSED IN THE SAID.

                THIS PETITION, COMING ON FOR HEARING, THIS DAY,
            ORDER WAS MADE THEREIN AS UNDER:
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                                          NC: 2024:KHC:45607
                                    CRL.RP No. 1328 of 2019




CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                       ORAL ORDER

Heard Sri.Vijay Shetty B., learned counsel for the

revision petitioner and Sri.Nagabhushana R., learned

counsel for the respondent.

2. Accused who suffered an order of conviction in

CC No. 30587/2014 dated 02.01.2017 on the file of XVI

ACMM, Bengaluru which was confirmed in

Crl.A.No.128/2017 dated 14.10.2019 on the file of LVI

Addl. City Civil and Sessions Judge, Bengaluru (CCH-57)

for the offence punishable under Section 138 of the

Negotiable Instruments Act and directed to pay fine in a

sum of Rs.7,00,000/-, out of which sum of Rs.6,85,000/-

is ordered to be paid as compensation to the complainant

and balance sum of Rs.15,000/- to be paid towards

defraying expenses of the State, has preferred the present

revision petition.

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3. Brief facts of the case which are utmost

necessary for disposal of the revision petition are as

under:

3.1. A complaint came to be filed under Section 200

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

commission of offence under Section 138 of the Negotiable

Instruments Act by the complainant by contending that

accused is a family friend of the complainant and she

borrowed sum of Rs.5,00,000/- on 2nd week of April, 2014

for the purpose of completion of the construction of her

house with a promise to repay the same within a short

period of time.

3.2. Towards repayment of the said loan, accused

issued a cheque bearing No.311705 dated 05.08.2014 in a

sum of Rs.6,00,000/- which on presentation came to be

dishonored with an endorsement 'funds insufficient'.

3.3. Legal notice issued is not complied and

untenable reply was sent. Therefore, complainant sought

for action.

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4. Learned Trial Magistrate after completing

necessary formalities, summoned the accused and

recorded the plea. Accused pleaded not guilty. Therefore,

trial was held.

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

complainant got examined herself as P.W.1 and relied on

thirteen documents which were exhibited and marked as

Exs.P.1 to Ex.P.13 comprising of dishonored cheque, bank

endorsement, copy of the legal notice, postal receipts and

acknowledgement, returned postal cover, complaint, loan

agreement and certified copy of the order sheet and

charge sheet in Girinagar Police Station, crime

No.63/2013. Complainant examined one more witness on

her behalf as P.W.2. Through her, three gas bills were

marked as Exs.P.11 to 13.

6. Detailed cross-examination of P.W.1 and P.W.2

did not yield any positive materials so as to disbelieve the

version of the complainant nor to dislodge the

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presumption available to the complainant under Section

139 of the Negotiable Instruments Act.

7. The theory put forward by the accused that the

cheque was issued in favour of Bhagyamma and same has

been misutilized by the complainant remains suggestion

on record in the absence of placing proper proof thereof

and not taking any positive action for the alleged misuse.

8. Learned Trial Magistrate thereafter recorded the

accused statement as is contemplated under Section 313

of Cr.P.C., wherein the accused has denied all the

incriminatory circumstances.

9. In order to rebut the presumption available to

the complainant, accused stepped into the witness box

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

office copy of the legal notice, complaint, attested copy of

the complaint and postal receipt.

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10. In the cross-examination D.W.1, she admits the

certified copy of the order sheet marked in Girinagar Police

Station, Crime No.63/2013.

11. Thereafter, learned Trial Magistrate heard the

parties in detail and on cumulative consideration of oral

and documentary evidence on record, convicted the

accused for the offence punishable under Section 138 of

the Negotiable Instruments Act and imposed fine as

referred to supra.

12. Being aggrieved by the same, accused filed an

appeal before the First Appellate Court in

Crl.A.No.128/2017.

13. Learned Judge in the First Appellate Court after

securing the records, heard the parties in detail and

dismissed the appeal of the accused.

14. Being further aggrieved by the same, accused is

before this Court, in this revision.

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15. Sri.Vijay Shetty B., learned counsel for the

revision petitioner reiterating the grounds urged in the

revision petition vehemently contended that both the

Courts have not properly appreciated the material

evidence on record and wrongly convicted the accused

resulting in miscarriage of justice and sought for allowing

the revision petition.

16. He pointed out that cheque was actually issued

in favour of Bhagyamma. Complainant and Bhagyamma

have colluded together and misused the cheque issued by

the accused in favour of Bhagyamma. Therefore, there

was no of legally recoverable debt under Ex.P.1 which has

not been properly appreciated by the learned Trial

Magistrate while raising the presumption under Section

139 of the Negotiable Instruments Act and sought for

allowing the revision petition.

17. Per contra, Sri.Nagabhushana R., learned

counsel for the respondent supports the impugned

judgments.

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18. Having heard the parties in detail, this Court

perused the material on record meticulously.

19. On such perusal of the material on record,

following points would arise for consideration:

1. Whether the revision petitioner establishes that impugned orders are suffering from legal infirmity and perversity on account of patent factual error or jurisdictional error in passing the impugned orders?

2. Whether the sentence is excessive?

3. What order?

REGARDING POINT No.1:

20. In the case on hand, issuance of the cheque

and signature found therein is not in dispute. Accused has

taken up the contention that the cheque was in fact issued

in favour of Bhagyamma. Accused did not chose to

summon Bhagyamma to establish said aspect of the

matter.

21. Material on record would go to show that the

cheque is dishonored on the ground of 'funds insufficient'

and not on the ground that 'payee name did not tally'.

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Therefore, having regard to the material evidence placed

on record especially the loan agreement and certified copy

of the order sheet in Crime No.63/2013, the learned Trial

Magistrate was justified in raising the presumption in

favour of complainant as is contemplated under Section

139 of the Negotiable Instruments Act.

22. No doubt, such a presumption is a rebuttable

presumption. In order to rebut the presumption available

to the complainant, accused got examined herself as

D.W.1. In her evidence, she did not place such evidence

on record so as to rebut the presumption available to the

complainant on record.

23. Theory put forward by the accused that the

cheque has been misused is not probabilised by placing

necessary material evidence on record. It is also pertinent

to note that normal prudent person would keep quite if a

cheque in a sum of Rs.6,00,0000/- is misutilized.

Admittedly, no positive action has been taken by the

accused as against Bhagyamma or against the

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complainant. Certified copy of the order sheet in Crime

No.63/2013 of Girinagar Police Station marked at Ex.P.9

(which should have been marked as Ex.P.10) would go to

show that revision petitioner was also accused in the said

case and she was given to the police custody by the

learned Trial Magistrate.

24. Further, in the cross-examination of D.W.1, she

has admitted that she is facing one more criminal case

filed by Nagarathnamma. D.W.1 also admits that she has

repaid the loan in a sum of Rs.5,00,000/- to Bhagyamma

and she has paid Rs.50,000/- and Rs.1,00,000/- in

installments in the year 2013.

25. She further admits that there is a document to

establish said fact; but no such document is produced. In

other words, there is a specific plea taken by the accused

that the cheque is misused by Bhagyamma in collusion

with the complainant and to substantiate the said aspect,

there is no material evidence on record.

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26. Accordingly, conviction order passed by the

learned Trial Magistrate confirmed by the First Appellate

Court needs no interference by this Court in this revision.

REGARDING POINT No.2:

27. As against cheque amount of Rs.6,00,000/-,

learned Trial Magistrate has awarded fine in a sum of

Rs.7,00,000/-, out of which sum of Rs.6,85,000/- is to be

paid as compensation to the complainant and balance sum

of Rs.15,000/- to be paid towards defraying expenses of

the State.

28. Since, lis is privy to the parties and no State

machinery is involved, awarding sum of Rs.15,000/-

towards defraying expenses of the State would not arise

and therefore, same needs interference by this Court, in

this revision. Accordingly, point No.2 is answered partly

in the affirmative.

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REGARDING POINT No.3:

29. In view of the foregoing discussions of this

Court on point Nos.1 and 2 as above, 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.6,85,000/- from Rs.7,00,000/-.

iii. Entire sum of Rs.6,85,000/- is ordered to be

paid as compensation to the complainant on

or before 10.12.2024 failing which order of

imprisonment ordered by the learned Trial

Magistrate gets restored automatically.