Karnataka High Court
Sri.Ravi Poojary vs Sri.Chandraprabha on 11 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:45557
CRL.RP No. 278 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 278 OF 2022
BETWEEN:
SRI RAVI POOJARY
S/O VASU POOJARY
AGED ABOUT 52 YEARS
R/AT VARAKABE HOUSE
KUVETTU VILLAGE
BELTHANGADY TALUK
D.K. DISTRICT - 574224.
...PETITIONER
(BY SMT. HALEEMA AMEEN, ADVOCATE)
AND:
SRI CHANDRAPRABHA
S/O LATE BUJABALI HEGDE
AGED ABOUT 42 YEARS
R/AT PADMAMBIKA NILAYA
Digitally MALLAR MADI
signed by
MALATESH DHARMASTHALA VILLAGE
KC BELTHANGADY TALUK
Location: D.K. DISTRICT - 574216.
HIGH ...RESPONDENT
COURT OF
KARNATAKA (RESPONDENT - SERVED)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C.
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 11.12.2019 MADE IN
C.C.NO.209/2016 BY THE COURT OF PRINCIPAL SENIOR CIVIL
JUDGE AND J.M.F.C. BELTHANGADY AND JUDGMENT AND
ORDER DATED 06.12.2021 MADE IN CRL.A.NO.12/2020 BY THE
COURT OF THE VI ADDITIONAL DISTRICT AND SESSIONS
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NC: 2024:KHC:45557
CRL.RP No. 278 of 2022
JUDGE, AT D.K., MANGALURU AND ACQUIT HIM OF THE
OFFENCE.
THIS CRL.RP, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Smt. Haleema Ameen, learned counsel appearing
for the revision petitioner.
2. The revision petitioner is the accused who suffered
order of conviction in C.C. No.209/2016 confirmed in Crl.A.
No.12/2020 for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 ( for short 'the Act') and
ordered to pay fine of `24,24,500/- as compensation to the
complainant and `5,000/- to the towards defraying expense of
the State. Before the First Appellate Court 20% of the fine
amount was ordered to be paid as interim compensation to the
complainant which was not complied and learned Judge of the
First Appellate Court took note of the same and dismissed the
appeal.
3. Before this Court since 2022, the revision petitioner
is unable to comply the order.
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4. Smt. Haleema Ameen contended that order passed
by the trial Magistrate convicting the accused and appellate
Court upheld the same has resulted in miscarriage of justice.
5. Respondent are served with notice of revision
petition and remain unrepresented. Therefore, this Court
perused the material on record meticulously.
6. On such perusal of the material on record, it is
crystal clear that issuance of cheque and signature of the
revision petitioner therein is not in dispute. The cheque came
to be dishonoured for two reasons, one is that the account
became inoperative and the second reason is funds
insufficient. The learned trial Magistrate has taken note of the
said aspect of the matter in paragraph No.14 of the judgment
of the trial Magistrate in detail.
7. The Trial Magistrate has also taken note of the
defence raised on behalf of the accused. On behalf of the
accused, Manager of Syndicate Bank by name Sri Girish G.,
has been examined as DW.1 and in his evidence, he has stated
about the cheque being dishonoured for the aforesaid reasons.
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8. In the cross examination of DW.1, it has been
elicited that even if the account has become inoperative, there
is no bar for the drawer to draw a cheque in favour of the
payee. Ex.P2 - Bank endorsement has been discussed in detail
by the trial Magistrate in para No.14
9. Since the primarily the account did not have be
necessary funds for honouring the cheque, offence punishable
under Section 138 of the Act got attracted.
10. To assail the impugned orders, the learned counsel
for the revision petitioner placed reliance on the judgment of
the Hon'ble Apex Court in the case of Surinder Singh Deswal
alias Col. S.S. Deswal and Ors. V. Virender Gandhi and
Anr.1, wherein in para No.15 it has been held as under:
The judgment of this Court which was
delivered in the case of the present appellants
i.e. Criminal Appeal Nos.917-944 of 2019
(reported in AIR 2019 SC 2956) (Surinder Singh
Deswal @ Col. S.S. Deswal and others vs.
Virender Gandhi) (in which one of us M.R.Shah, J
was also a member) was also cited before the
Bench deciding the case of G.J. Raja (AIR 2019
SC 3817). This Court in its judgment dated
AIR 2020 SC 415
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29.05.2019 has rejected the submission of the
appellants that Section 148 of N.I. Act shall not
be made applicable retrospectively. This Court
held that considering the Statement of Objects
and Reasons of the amendment in Section 148 of
the N.I. Act, on purposive interpretation of
Section 148 of the N.I. Act as amended, shall be
applicable in respect of the appeals against the
order of conviction and sentence for the offence
under Section 138 of the N.I. Act, even in a case
where the criminal complaints for the offence
under Section 138 of the N.I. Act were filed prior
to amendment Act No.20/2018 i.e. prior to
01.09.2018.
11. No doubt, in the event of non payment of the
interim compensation ordered by the First Appellate Court, the
Appellate Court is not precluded from considering the appeal on
merits of the matter. Therefore, solely on the ground that the
interim order is not complied, the Court cannot shirk its
responsibility in considering the case of the accused on merits.
Such a proposition of law cannot be disputed having regard to
the language employed in the statute.
12. Nevertheless, in the case on hand, except
examining the Manager of the Syndicate Bank i.e., banker of
the accused, no other rebuttal evidence is forthcoming on
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record. In other words, accused wanted to take shelter under
the technical reasons that his account became in operative and
therefore, he was not bound to honour the cheque in question.
Such a defence cannot be countenanced in law as the cheque is
also dishonoured for want of sufficient funds. Oral evidence of
DW.1 - Sri Girish G. who is the bank Manager of the Syndicate
Bank did not improve the case of the accused in rebutting the
presumption available to the complainant under Section 139 of
the Act.
13. Accordingly, this Court does not find any merits in
the matter so as to admit the revision petition for further
consideration.
14. Hence, following:
ORDER
Grounds of the revision petitioner are meritless. Hence,
admission declined. Consequently, revision petition is
dismissed.
Sd/-
(V SRISHANANDA)
JUDGE
