Karnataka High Court
M/S Sree Chowdeshwari Transport vs Sri Sharachandra on 11 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:45646
CRL.RP No. 1036 of 2022
C/W CRL.RP No. 1121 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. 1036 OF 2022
C/W
CRIMINAL REVISION PETITION NO. 1121 OF 2022
IN CRL.RP No. 1036/2022
BETWEEN:
M/S SREE CHOWDESHWARI TRANSPORT
BY ITS PROPRIETOR-
N. NAGARAJ SINGH,
S/O. NARASINGH,
AGED ABOUT 49 YEARS,
R/A NO.6, SINGH COMPLEX
CHOWDESHWARI NAGARA,
NEAR DEVI CIRCLE,
DURGA DEVI ROAD,
Digitally
signed by VIDYARANYAPURA,
MALATESH BENGALURU.
KC ...PETITIONER
Location: (BY SRI.VINAY KULKARNI, ADVOCATE)
HIGH
COURT OF
KARNATAKA AND:
SRI.SHARACHANDRA
S/O CHOWDA REDDY
AGED ABOUT 67 YEARS
R/A NO.288, CHOWDESHWARI NILAYA
5TH CROSS, OPP. ANR KALYANA
MANTAPA ROAD,
MUNIREDDY LAYOUT,
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CRL.RP No. 1036 of 2022
C/W CRL.RP No. 1121 of 2022
CHANDAPURA, ANEKAL TALUK,
BANGALORE DISTRICT.
REP. BY HIS GPA HOLDER
KIRAN REDDY,
S/O. SHARACHANDRA.
...RESPONDENT
(BY SRI. B.C.VENKATESH, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT DATED 21.06.2022
IN CRL.A.NO.5003/2019 ON THE FILE OF III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL
DISTRICT, SITTING AT ANEKAL CONFIRMING THE
JUDGMENT AND ORDER OF SENTENCE DATED 04.01.2019
IN C.C.NO.1713/2017 ON THE FILE OF PRINCIPAL CIVIL
JUDGE AND J.M.F.C., ANEKAL, C.C.NO.1713/2017 BE
DISMISSED AND THIS CRIMINAL REVISION PETITION BE
ALLOWED AS PRAYED FOR.
IN CRL.RP NO. 1121/2022
BETWEEN:
SRI. SHARACHANDRA,
S/O CHOWDA REDDY,
AGED ABOUT 62 YEARS,
R/AT NO 288,
CHOWDESHWARI NILAYA, 5TH CROSS,
OPP ANR KALYANA MANTAPA ROAD,
MUNIREDDY LAYOUT,
CHANDAPURA ANEKAL TALUK,
BANGALORE DIST - 560 099.
REPRESENTD BY ITS GPA
HOLDER
SRI. KIRAN REDDY.S,
S/O SRI. SHARACHANDRA,
AGED ABOUT 39 YEARS,
R A/T NO. 288,
CHOWDESHWARI NILAYA,
5TH CROSS,
-3-
NC: 2024:KHC:45646
CRL.RP No. 1036 of 2022
C/W CRL.RP No. 1121 of 2022
OPP. ANR KALYANAMANTAPA ROAD,
MUNIREDDY LAYOUT,
CHANDAPURA,
ANEKAL TALUK,
BANGALORE DIST -560 099.
...PETITIONER
(BY SRI. B.C.VENKATESH, ADVOCATE)
AND:
SREE CHOWDESHWARI TRANSPORT
BY ITS PROPRIETOR
N.NAGARAJ SINGH,
S/O. NARASINGH,
AGED ABOUT 49 YEARS,
NO.6, SINGH COMPLEX,
CHOWDESHWARINAGAR,
NEAR DEVI CIRCLE,
DURGA DEVI ROAD,
VIDYARANYAPURA,
BANGALORE-560 097.
...RESPONDENT
(BY SRI.VINAY KULKARNI, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT DATED
21.06.2022 PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL DISTRICT SIT AT
ANEKAL IN CRL.A.NO.5003/2019 AND CONFIRM THE
JUDGMENT DATED 04.01.2019 PASSED BY THE PRL.CIVIL
JUDGE AND J.M.F.C AT ANEKAL IN C.C.NO.1713/2017.
THESE PETITIONS, COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 1036 of 2022
C/W CRL.RP No. 1121 of 2022
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri. Vinayak Kulkarni, learned counsel for
the revision petitioner and Sri. B. C. Venkatesh, learned
counsel for the respondent.
2. These two revision petitions are filed by the
accused and complainant respectively challenging the
order passed in Crl.A.No.5003/2019 whereby the order
passed by the Trial Magistrate in C.C.No.1713/2017 is
modified by the First Appellate Court.
3. Brief facts of the case which are utmost
necessary for disposal of revision petitioner are as
under:
3.1 A complaint came to be lodged under
Section 200 of Cr.P.C. alleging the commission of
offence punishable under Section 138 of the Negotiable
Instruments Act by contending that the accused and
complainant are known to each other for more than ten
years and they have maintained cordial relationship.
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Accused approached the complaint in the month of
March 2013 seeking for financial assistance. Believing
the same, the complainant advanced a sum of
Rs.3,00,000/- as hand loan to the accused on
23.03.2013 and accused agreed to repay the same
within six months. Again accused approached in the
month of June 2013 and requested a sum of
Rs.5,00,000/- and the same was lent on 27.06.2013.
Similarly in the month of February 2014, accused again
approached the complainant with a request for financial
assistance in a sum of Rs.3,00,000/- which was also
advanced by the complainant on 17.02.2014. In the
month of October, 2014 is yet another transaction
wherein accused has sought for financial assistance in a
sum of Rs.1,00,000/- to the accused, when the same
was paid on 21.09.2014 and thus, the complainant in
all, advanced a sum of Rs.12,00,000/- to the accused
on different occasions.
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3.2 Despite repeated demands, accused failed to
repay the amount and ultimately he passed on a
cheque bearing No.616011 dated 25.02.2015 drawn on
Karnataka Bank, Vidyaranyapura Branch in a sum of
Rs.6,00,000/- and another cheque bearing No.605557
dated 25.02.2015 for another sum of Rs.6,00,000/-.
Both the cheques on presentation came to be
dishonoured with an endorsement "Funds insufficient".
3.3 Accused was contacted by the complainant
through telephone and there was no response. As such,
complainant got issued a legal notice remanding the
repayment cover under the cheques. Said notice is duly
served on the accused and there was no reply to the
notice nor there was any compliance. Therefore,
complainant sought for action against the accused.
4. Learned Trial Magistrate after completing the
necessary formalities, summoned the accused and
recorded the plea. Accused pleaded not guilty and
therefore, trial was held.
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5. In order to prove the case of the
complainant, son of the complainant has been
examined as P.W.1 and placed on record, ten
documentary evidence which were exhibited and
marked as Exs.P.1 to P.10, among them Ex.P1 is the
General Power of Attorney, Exs.P2 and 3 are the
dishonoured cheques, Exs.P.4 and 5 are the bank
endorsements, Ex.P.6 is the copy of the legal notice,
Exs.P7 and 8 are the postal receipt and the postal
acknowledgment, Exs.P9 and 10 are the original
passbooks.
6. Detailed cross-examination of the PW1 did
not yield any positive result in disbelieving the version
of the complainant nor dislodging the presumption
available to the complainant under Section 139 of the
Negotiable Instruments Act.
7. Thereafter, the learned Trial Magistrate
recorded the accused statement as is contemplated
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under Section 313 of Cr.P.C., wherein accused has
denied all the incriminatory circumstances.
8. Subsequent thereto, accused stepped into
the witness box to discharge his burden of rebuttable
evidence and got examined himself as D.W.1.
9. In the cross-examination of D.W.1, it has
been elicited that the dishonoured cheques belongs to
him and so also the signatures found on the cheques
are that of his signatures. Accused admitted the service
of notice and also admitted that he did not reply to the
notice.
10. Thereafter, the learned Trial Judge heard the
parties in detail and invoking the presumption available
to the complainant under Section 139 of the Negotiable
Instruments Act convicted the accused and imposed a
fine of Rs.16,50,000/- with a default sentence of four
months.
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11. Being aggrieved by the same, default
sentence of four months and out of the sum of
Rs.16,50,000/-, compensation was awarded in a sum of
Rs.16,40,000/- and balance amount of Rs.10,000/- was
ordered to be appropriated towards the defraying
expenses of the State.
12. Being aggrieved by the same, accused filed
an appeal before the District Court in
Crl.A.No.5003/2019.
13. Learned Judge in the First Appellate Court
after securing the records, heard the parties in detail
and allowed the appeal in part by modifying the
sentence by imposing a sum of Rs.12,10,000/- as the
fine amount as against sum of Rs.16,50,000/-.
14. Being further aggrieved by the same,
accused and the complainant have preferred these two
Revision Petitions.
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15. Having heard the arguments of Sri. Vinayak
Kulkarni, learned counsel for the revision petitioner and
Sri. B. C. Venkatesh, learned counsel for the
respondent have supported their line of arguments in
attacking the judgment passed by the First Appellate
Court. While Sri. Vinayak Kulkarni, learned counsel for
the revision petitioner contended that the First
Appellate Court ought not to have confirmed the
conviction and sought for allowing the revision petition.
Sri. B.C. Venkatesh, learned counsel for the respondent
contended that without there being any proper reasons
whatsoever, the fine amount has been reduced from
Rs.16,50,000/- from Rs.12,10,000/- resulting in
miscarriage of justice and sought for allowing the
revision petition.
16. Having heard the parties in detail, this Court
perused the material on record meticulously. On such
perusal of material on record, it is crystal clear that
Ex.P2 and 3 cheques are belonging to the accused and
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the signatures found therein are that of the accused.
Admittedly both the cheques have been dishonoured
with an endorsement "Funds insufficient". To
substantiate the lending of the money, passbook is
marked on behalf of the complainant at Ex.P9 and 10.
No explanation is forthcoming as to the entries found
therein on behalf of the accused. Further, there was no
reply issued to the legal notice nor there was any
compliance on the part of the accused.
17. The above evidence was sufficient enough
for the learned Trial Magistrate to invoke the
presumption available to the complainant under Section
139 of Negotiable Instruments Act.
18. No doubt the said presumption is a
rebuttable presumption. In order to rebut the said
presumption except the oral testimony of the accused
which is in the nature of self serving testimony no other
material evidence is placed on record.
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19. Under such circumstances, learned Trial
Magistrate recorded a categorical finding that the
accused has committed an offence punishable under
Section 138 of the Negotiable Instruments Act and
imposed a fine of Rs.16,50,000/- taking note of the
transaction is of the year 2013.
20. Learned Judge in the First Appellate Court
without assigning proper reasons, unilaterally reduced
the compensation amount from Rs.16,50,000/- from
Rs.12,10,000/-.
21. Both the Courts have erred in imposing
Rs.10,000/- as the fine amount towards defraying
expenses of the State which cannot be counter as in
law in as much as lis is privy to the parties and no
State machinery is involved. Therefore, imposition of
the fine amount of Rs.10,000/- towards the defray
expenses of the State needs to be set aside.
22. Further, since the transaction is of the year
2013 and the cheques are issued by the accused and
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the same are dishonoured, reducing the fine amount
from Rs.16,50,000/- to Rs.12,10,000/- is thus as
resulted in miscarriage of justice and warrant in the
intervention of this Court by re-modifying the fine
amount in a sum of Rs.13,00,000/-.
23. Accordingly, the following:
ORDER
i. Revision petitions are allowed in part.
ii. While maintaining the conviction of the
accused for the offence punishable under
Section 138 of the Negotiable
Instruments Act, accused is directed to
pay fine amount of Rs.13,00,000/- as
against the cheque amount of
Rs.12,00,000/- failing in which accused
shall undergo simple imprisonment for a
period of one year.
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iii. Entire amount of Rs.13,00,000/- is
ordered to be paid as compensation to
the complainant on or before 10.12.2024.
iv. Awarding of Rs.10,000/- by the learned
Trial Magistrate and confirmed by the
First Appellate Court towards defraying
expenses of the State is hereby set aside.
Sd/-
(V SRISHANANDA)
JUDGE
BN
