Karnataka High Court

Sri B Rajesh Jain vs Sri K C Manjunatha on 8 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                    NC: 2024:KHC:45364
                                                CRL.RP No. 109 of 2024




              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. 109 OF 2024
            BETWEEN:

            SRI. B. RAJESH JAIN,
            S/O LATE K. JINARAJA MUDYA,
            AGED ABOUT 43 YEARS,
            NO. 367, 6TH MAIN, BEML LAYOUT,
            5TH STAGE, R.R. NAGAR,
            BENGALURU - 560 098.
                                                         ...PETITIONER
            (BY SRI. H. MALTHESH, ADVOCATE)

            AND:

            SRI. K.C. MANJUNATHA,
            S/O LATE K. CHANNABASAPPA,
Digitally   AGED ABOUT 52 YEARS,
signed by   R/A NO. 131, 2ND CROSS,
MALATESH    TELECOM LAYOUT, K.P. AGRAHARA,
KC
Location:   VIJAYANAGAR, BENGALURU - 560 023.
HIGH                                                    ...RESPONDENT
COURT OF
KARNATAKA   (BY SRI. HEMANTH KUMAR G.M, ADVOCATE)

                   THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
            PRAYING TO A. SET ASIDE THE JUDGMENT OF CONVICTION
            DATED 21.10.2021 PASSED BY THE COURT OF SMALL CAUSES
            AND ACMM AT BENGALURU IN C.C.NO.5869/2019.
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                                           NC: 2024:KHC:45364
                                       CRL.RP No. 109 of 2024




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

CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                         ORAL ORDER

Heard the learned counsel for the revision petitioner

Sri. H. Malthesh and the counsel for the respondent Sri.

Hemanth Kumar G.M.

2. Accused/Petitioner has suffered an Order of

conviction in CC No.5869/2019 confirmed in Crl.A.

No.919/2021, has filed the present revision petition.

3. Facts in the nutshell for the disposal of the

revision petition are as under:

A complaint came to be lodged under Section 200 of

the Code of Criminal Procedure alleging the commission of

offence punishable under Section 138 of the Negotiable

Instruments Act by the complainant contending that the

complainant and accused acquainted to each other and

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accused borrowed a sum of Rs.8,00,000/- to meet his

financial difficulties. The said loan transaction was on

01.06.2019 with a promise to repay the same. Towards

the repayment, accused issued two Cheques bearing

No.393756 and 393757 dated 06.07.2019 for a sum of

Rs.4 Lakhs each. Both the cheques on presentation

dishonoured with an endorsement "payment stopped by

the drawer". Callings of the legal notice was not complied

by the accused. However, he sent an untenable reply,

therefore, the complainant sought for action.

4. After completing the necessary formalities, the

presence of the accused was secured by the learned Trial

Magistrate and plea was recorded. 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 placed on

record eight documents comprising of dishonoured

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cheques, bank endorsement, legal notice, postal receipt,

bank endorsemen, whatsapp messages.

6. Detailed cross-examination of PW1 did not yield

any positive material so as to disbelieve the case of the

complainant not to dislodge the presumption available to

the complainant under Section 139 of the Negotiable

Instruments Act. Defence of the accused in the nutshell is

that Exs.P1 and P2 are forcibly taken by the complainant

and his wife by threatening the accused. In that regard,

Exs.D1 and D2 photographs and D3 and D11 compact

disks were placed on record. Complainant has denied the

same in his cross-examination.

7. Thereafter, accused statement as is

contemplated under Section 313 of Cr.P.C. was recorded

by the learned Magistrate. Accused has denied all the

incriminatory materials and did not chose to place any

written statement as is contemplated under Section

313(4) of Cr.P.C.

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8. However, in order to rebut the evidence of the

complainant and to establish the defence, accused got

examined himself as DW1 and his wife as DW2. Accused

placed on records eleven documents comprising of

photographs, compact disks, letter, complaint and

endorsement, notice and reply notice, postal receipt and

copy of the complaint.

9. In Cross-examination of DW1, he specifically

admits that there is no action taken by the police on the

complaint nor there is any endorsement on the complaint

lodged by the police. He admits that he has not taken any

action with regard to Cheque No.393755. He also admits

that in Ex.D3, videograph, there is no visuals which are

found whereby complainant and his wife is forcibly taking

the cheque from the accused. So also, there is no visuals

which could depict that accused was threatened to part

away the cheques at Exs.P1 and P2.

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10. Taking note these aspects of the matter,

learned Trial Judge heard the parties in detail and

convicted the accused for the offence punishable under

Section 138 of the N.I. Act, interalia holding at paragraphs

21 to 26 as under:

"21. Further as per the defense of accused, complainant and his wife have trespassed his house on 19.06.2019 at about 10.30 p.m., and by threatening him they have taken signed blank cheques. But, immediately after 19.06.2019 he has not lodged any complaint before the Police against complainant or against S.S.Garments. If really, complainant has taken the cheques as contended by accused by force why he has not approached the Police on the next day itself. On perusal of Ex.D4 document, it shows complaint was lodged to the Rajarajeshwari Nagar Police Station. But, in the said Ex.D4 no date is mentioned and no endorsement is made by the Police authority for having received the said complaint. It shows the said Ex.D4 is not genuine document and it creates doubt regarding the defense of accused. Further, if the police authority have not taken any action on his complaint, accused could have immediately filed a private complaint before the Court for the alleged act of complainant and his wife and S.S.Garments. But, he has not taken any such immediate action. So, it crystal clear that the said defense of accused is not acceptable and believable one.

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22. On perusal of Ex.D1 & 2 document, it appears somebody is writing on the cheque and accused is standing near by the said person, if really the cheque was forcibly taken by complainant and his wife why he has not objected while writing the said cheques and they have simply taken photographs as per Ex.D1 & 2 and no prudent man would keep silent if really his cheque was forcibly taken and some writings were made on the said cheques, definitely he would have objected it, while writing the cheques. The intention of accused taking of photographs itself clearly shows in order to create some evidence he has taken such a photographs. As discussed above, if really the complainant and his wife have taken the cheques forcibly, the immediate reaction of accused would be lodging of complaint to the Police or to the Court and pursuing the same till the end. Except some oral assertion accused has not placed any acceptable evidence to show that complainant and his wife have forcibly taken his signatures on cheques by threatening him.

23. Further, on perusal of Ex.D11(a) telephonic conversation between complainant and accused, it clearly establishes accused had borrowed loan and for due discharge of said loan he issued the cheques in dispute. If really, he has not borrowed any amount by the complainant why he has stated in his telephonic conversation that he is due of Rs.12,00,000/- that itself clearly establishes accused has borrowed amount from the complainant. Further, Ex.P8 WhatsApp message, which is admitted by accused himself establishes that accused voluntarily stated the complainant to present the

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cheque bearing No.393758 and to encash the amount of Rs.2,00,000/- on 02.08.2019. While confronting this Ex.P8 attention of accused was drawn to the said message and he himself admitted his wife has sent the said message to the complainant and further he stated on the same day, the came and made galata etc., so the said evidence of accused and Ex.P8 document clearly establishes that there was some loan transaction between complainant and accused. Even telephonic conversation, which is marked under Ex.D11(a) also establishes there was some loan transaction between complainant and accused. So, the defense of accused that complainant and her wife have taken the cheques forcibly for the alleged loan of S.S.Garments etc., is not acceptable one.

24. Further, during the cross-examination accused

has admitted ZÉPï £ÀA§gï 393755 gÀ ¸ÀA¨sÀAzÀ ¦üAiÀiÁð¢ £À£Àß ªÉÄÃ¯É PÀæªÀÄ

PÉÊUÉÆArzÀÝgÁ JAzÀgÉ E®è. ¸ÀzÀj ZÉPï £À£Àß §½ E®è. ¸ÀzÀj ¦üAiÀiÁð¢ §½ EzÉ.

ªÁ¥À¸ï PÉÆr JAzÀÄ PÉÃ½¢ÝÃgÁ JAzÀgÉ E®è. "

On perusal of above said admission, it is crystal clear that accused himself has voluntarily issued the cheques for due discharge of loan. If really, he has not issued the said cheques and complainant and his wife have forcibly taken the cheques why he has not demanded for return of said cheque No.393755 from the complainant. Further, he has not taken any action for misusing said cheques against complainant and he clearly admitted in his evidence, in this regard. So, when such

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being the case the contention of accused that cheques were taken forcibly by threatening him is not acceptable one. In fact, during the cross-examination accused has specifically admitted -

" ¤.r.3gÀ «ÃrAiÉÆÃ £ÉÆÃrzÉÝÃ£É. ¸ÀzÀj «ÃrAiÉÆÃzÀ°è £À£ÀUÉ

§®ªÀAvÀªÁV ºÉzÀj¹ ZÉPÀÄÌUÀ¼À£ÀÄß ¥ÀqÉzÀ ¸ÀA§AzsÀ E®è JAzÀgÉ ¸Àj. 2019 -06-

2019 2.2.1 0 3 vÉUÉzÀ ¸ÀA§AzsÀ zÁR¯É EzÉAiÀiÁ JAzÀgÉ E®è. D ¸ÀA§AzsÀ

ªÉÆ¨ÉÊ¯ï ºÁUÀÆ ªÉÄªÉÆj PÁqÀð£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ¥Àr¸À®Ä vÉÆAzÀgÉ

EzÉAiÀiÁ JAzÀgÉ E®è. ¤.¦.1 ªÀÄvÀÄÛ 2 ZÉPÀÄÌUÀ¼À£ÀÄß ¦üAiÀiÁð¢UÉ PÉÆlÖ, ¸ÀA§AzsÀ,

¤.r.3gÀ°è E®è JAzÀgÉ ¸Àj."

25. This portion of evidence clearly establishes that there was no threatening of forcible taken of cheques by the complainant and his wife as contended by accused.

26. As discussed above, accused has not taken any serious action against complainant or against S.S.Garments for misusing his cheques for the loan of S.S.Garments. As stated above, no prudent man would keep quite, if really his cheques were forcibly taken for the loan of other person. So, the defense of accused is totally false and not acceptable one. On the other hand, the evidence placed by the accused clearly establishes in order to escape from liability and in order to cheat the complainant he has created documentary evidence like photographs and complaints before filing the complaint and also given 'Stop Payment' application to the bank. All

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these acts of accused clearly establishes just to defraud the claim of complainant and to escape from the liability he has taken such a defense. There is no substance in the defense of accused and on overall considering the defense of the accused it clearly establishes the intention of the accused in cheating the complainant."

11. The learned Trial Magistrate imposed fine of

Rs.10 Lakhs as against the cheque amount of Rs.8 Lakhs

and ordered to pay Rs.9,90,000/- as compensation to the

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

defraying expense of the State.

12. Being aggrieved by the same, accused

preferred an appeal before the District in

Crl.A.No.919/2021. The learned Judge in the First

Appellate Court after securing records, heard the parties in

detail and by judgment dated 05.10.2023 dismissed the

appeal filed by the accused.

13. Being further aggrieved by the same, accused

has preferred the present revision petition.

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14. Learned counsel Sri. H. Maltesh for the revision

petitioner reiterating the grounds urged in the revision

petition contending that the material on record was

sufficient enough to show that there is no legally

recoverable debt covered under Exs.P1 and P2, in view of

photographs marked at Exs.D1 and D2, Videograph

recorded in Ex.D3 Compact Disk, coupled with the

complaint lodged by the accused with the Rajarajeshwari

Nagar Police Station and sought for allowing the revision

petition.

15. Per contra, the learned counsel for the

respondent supports the impugned judgment.

16. 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 :

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(i) Whether the revision petitioner establishes that the impugned judgment is suffering from patent factual error or error of jurisdiction whereby the impugned judgment can be termed as perverse?

(ii) Whether the sentence is excessive?

(iii) What order?

17. Regarding point No.1 :

In the case on hand, issuance of the cheque and

signature of the accused found therein is not in dispute.

On the contrary, the stand taken by the accused is that

the Exs.P1 and P2 were forcibly snatched from the hands

of the accused as is visible from Exs.D1 to D3. It is also

the case of the accused that the accused was threatened

by the complainant and his wife while snatching Exs.P1

and P2.

18. To establish the same, apart from the oral

testimony of DW1, the documents that are placed on

record by the accused is Exs.D1 to D3 and copy of the

complaint said to have been lodged with the

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Rajarajeshwari Nagar Police Station. Learned Trial Judge

took into consideration these aspects of the matter and

the aforesaid paragraphs in detail and has noted that the

accused has failed to establish that Exs.P1 and P2 cheques

were forcibly taken away by the complainant and his wife.

Therefore, he recorded an order of conviction against the

accused by raising the presumption as is available under

Section 139 of the Negotiable Instruments Act.

19. Learned Judge in the First Appellate Court has

re-appreciated the material evidence on record.

20. This Court also took into consideration the

material on record in the light of the arguments put-forth

on behalf of the accused. On such consideration of

material on record, it is crystal clear that DW1 has clearly

admitted in his cross-examination that in Ex.D3 the

videograph, there are no visuals which would depict that

the accused was either threatened, nor the complainant

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and his wife forcibly snatching the signed cheque from the

hands of the accused.

21. These aspects of the matter has been rightly

appreciated by both the Courts and taking note of the

scope of revisional jurisdiction, this Court does not find

any ground whatsoever much less good grounds to

interfere with the well-reasoned orders of both the Courts.

Accordingly, the point No.1 is answered 'in the negative'.

22. Regarding point No.2 :

As against the cheque amount of Rs.8,00,000/-,

learned Trial Magistrate has awarded a sum of

Rs.10,00,000/- as the fine amount of which Rs.9,90,000/-

is ordered to be paid as fine amount to the complainant

which requires no interference.

23. However, imposing the fine of Rs.10,000/-

towards defraying expense of the state needs to be set-

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aside in view of the fact that lis is privy to the parties that

no State Machine is involved.

24. Accordingly, point No.2 is answered 'partly in

the affirmative'.

25. 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