Karnataka High Court
Smt. H.V. Godha Krishna Prasad vs M/S Narayana Educational Society on 11 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:45601
CRL.RP No. 626 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. 626 OF 2022
BETWEEN:
1. SMT. H.V. GODHA KRISHNA PRASAD
W/O SRI M V KRISHNAPRASAD
AGED ABOUT 52 YEARS
R/AT NO 116/5-1
11TH CROSS, MALLESHWARAM
BENGALURU 560003
...PETITIONER
(BY SRI SOMASHEKAR.K.M FOR
SRI PRABHAKAR.K.L, ADVOCATES)
AND:
1. M/S NARAYANA EDUCATIONAL SOCIETY
HARINATHAPURAM, NELLORE
ANDHRA PRADESH
AUDITOR (KARNATAKA ZONE)
Digitally
signed by 14TH CROSS, No.L-152
MALATESH C K PLAZA, HSR LAYOUT
KC BANGALORE - 560 034
Location: ...RESPONDENT
HIGH (BY SMT. LATHA S. SHETTY, ADVOCATE)
COURT OF
KARNATAKA THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND SENTENCE DATED 26.10.2018 PASSED BY
THE XXVII ACMM, BANGALORE IN C.C.No.19760/2015 AND
THE JUDGMENT CONFIRMING THE CONVICTION AND
SENTENCE DATED 11.03.2022 PASSED BY THE LXVIII
ADDL.CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN
CRL.A.No.2355/2018 CONSEQUENTLY ACQUIT THE REVISION
PETITIONER FROM THE CHARGES LEVELLED AGAINST HIM.
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CRL.RP No. 626 of 2022
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 Somashekar K.M., appearing on behalf of Sri
Prabhakar K.L., counsel for revision petitioner and Smt. Latha S
Shetty, learned counsel for the respondent.
2. Accused who suffered an order of conviction for the
offence punishable under Section 138 of Negotiable
Instruments Act and ordered to pay fine of Rs.15,00,000/- of
which sum of Rs.14,95,000/- was ordered to pay as
compensation and balance sum of Rs.5,000/- towards the
defraying expenses of the State, confirmed in
Crl.A.No.2355/2018, has preferred this present revision
petition.
3. Facts in nutshell for disposal of the revision petition
are as under:
A complaint came to be lodged against the accused under
Section 200 of Cr.P.C., alleging the commission of the offence
under Section 138 of Negotiable Instruments Act by the
complainant, alleging that accused entered into lease
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agreement dated 01.11.2012. As per the lease agreement,
accused had to handover the property bearing No.116, situated
at 11th Cross, Malleshwaram for running Educational Institution
of the complainant.
4. As per the agreement, complainant had deposited
sum of Rs.45,00,000/- as advance and interest free security
deposit with the accused. Accused failed to handover the
premises on or before 01.06.2013 as agreed in the agreement
and because of non performance and non adherence to the
grounds of the lease agreement, complainant was constrained
to issue a letter of termination of agreement to the accused.
5. Accused was bound to return the sum of
Rs.45,00,000/- which was the interest free security amount.
Despite repeated demands, accused failed to do so.
6. Ultimately, accused issued six post dated cheques
bearing Nos.084492 and 084494 to 084498 for a sum of
Rs.7,50,000/-, drawn on Union Bank of India, Malleshwaram
Branch, Bangalore. Complainant presented a cheque bearing
No.084497 to the bank which was dishonoured as per the bank
memo dated 15.11.2014 with an endorsement 'funds
insufficient'.
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7. Thereafter, complainant issued legal notice on
12.12.2014 through registered post acknowledgement due,
which was duly served on the accused on 19.12.2014. Accused
failed to make the payment, but sent an untenable reply on
08.01.2015, denying the contents of notice and therefore,
complainant sought for action against the accused.
8. Learned Trial Magistrate after completing the
necessary formalities, summoned the accused and recorded the
plea of the accused. Accused pleaded not guilty. Therefore,
trial was held.
9. In order to prove the case of the complainant,
complainant got examined authorized officer of the complainant
by name Anil Kumar Gali as P.W.1 and placed on record eight
documents, which were exhibited and marked as Exs.P.1 to
P.8, comprising of authorization letter, dishonored cheque,
bank endorsement, copy of the legal notice, postal receipt,
postal acknowledgement, statement of accounts of ICICI bank
and relevant entries and memorandum of understanding.
10. Detailed cross-examination of the complainant by
the accused did not yield any positive materials so as to
disbelieve the version of the complainant or to discard the
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presumption available to the complainant under Section 139 of
Negotiable Instruments Act.
11. Thereafter, accused statement as is contemplated
under Section 313 of Cr.P.C., was recorded. Accused denied all
the incriminatory materials found against her.
12. Thereafter, in order to rebut the presumption
available to the complainant, accused got examined herself as
D.W.1. She did not place any documentary evidence in support
of her case. In her cross-examination she denied having
entered into the lease agreement.
13. On conclusion of the recording of the evidence,
learned Trial Magistrate heard the parties in detail and after
raising presumption available to the complainant under Section
139 of the Negotiable Instruments Act, found that the
rebuttable evidence was not sufficient enough to rebut the
presumption and convicted the accused by imposing fine of
Rs.15,00,000/-, of which sum of Rs.14,95,000/- was ordered to
be paid as compensation to the complainant and balance sum
of Rs.5,000/- towards defraying expenses of the State.
14. Being aggrieved by the same, accused preferred an
appeal before the District Court in Crl.A.No.2355/2018.
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15. Learned Judge in the First Appellate Court after
securing the records and hearing the parties in detail dismissed
the appeal on merits by judgment dated 11.03.2022.
Thereafter, accused is before this Court in this revision petition.
16. 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 inasmuch as the
lease agreement was not placed on record by the complainant.
Therefore, there was no legally recoverable debt under the
cheque and the cheque therefore issued by the accused for
some other purpose which has been misused by the
complainant and sought for allowing the revision petition.
17. Per contra, counsel for the respondent supports the
impugned judgment.
18. Having heard the parties in detail this Court
perused the materials on record meticulously.
19. On such perusal of the materials on record, it is
found that the cheques in question are belonging to the
accused and the signature found therein is that of the accused.
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20. There is no proper explanation by the accused as to
why she parted away the cheques in question in favour of the
complainant.
21. Material evidence available on record namely the
relevant entries in the bank accounts maintained by the
complainant in ICICI bank coupled with the memorandum of
understanding would be sufficient enough to raise the
presumption available to the complainant under Section 139 of
the Negotiable Instruments Act.
22. No doubt, such a presumption is a rebuttable
presumption. In order to rebut the presumption, accused took
the responsibility of examining herself.
23. However, in the evidence which is nothing but self
serving testimony did not improve the defence of the accused
to any extent, in the absence of any documentary evidence
placed on record as no normal prudent person would keep quite
by not taking any criminal action against the complainant if the
cheques are misused
24. All these factors has been rightly appreciated by
both the Courts while convicting the accused and therefore,
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conviction of the accused does not prefer interference by this
Court.
25. However, taking note of the fact that out of fine
amount of Rs.15,00,000/-, sum of Rs.5,000/- which has been
ordered by the learned Trial Magistrate towards the defraying
expenses, cannot be countenanced in law as the lis is privy to
the parties and no State machinery is involved.
Accordingly, following:
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 the Negotiable Instruments
Act, fine amount of Rs.15,00,000/- imposed
by the learned Trial Magistrate, confirmed by
the First Appellate Court is reduced to
Rs.14,95,000/-.
(iii) Entire sum of Rs.14,95,000/- is ordered to be
paid as compensation to the complainant on
or before 10.12.2024, failing which accused
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shall undergo simple imprisonment as
ordered by the learned Trial Magistrate.
(iv) An amount of Rs.5,000/- imposed by the
learned Trial Magistrate, confirmed by the
First Appellate Court towards defraying
expenses of the State is hereby set aside.
(v) Office is directed to return the Trial Court
records with copy of this order forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
MR
