Karnataka High Court

Smt Rangamma vs Sri H C Shivakumar on 13 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                    CRL.RP No. 1438 of 2019




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 13TH DAY OF NOVEMBER, 2024

                                        BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
               CRIMINAL REVISION PETITION NO. 1438 OF 2019


            Between:

            Smt. Rangamma
            W/o Late Venkate Gowda,
            Aged 69 years,
            Housewife,
            Immaptipura Village
            Palya Hobli, Alur Taluk
            Hassan District - 573 213

                                                                 ...Petitioner
            (By Sri. Sadashivaiah K.G., Advocate)

            And:
Digitally   Sri H.C.Shivakumar
signed by
            S/o Channashetty,
MALATESH
KC          Aged about 44 years,
            C/o Auto Share Rajanna
Location:
            Municipality Contractor
HIGH
COURT OF    Behind Edga, Adlimane Road,
KARNATAKA   Hassan Town, Hassan - 573 201.

                                                               ...Respondent
            (By Sri Kumar M.D., Advocate-Absent)

                  This Criminal Revision Petition is filed u/s 397 r/w 401
            Cr.P.C. praying to (1) set aside the judgment and order passed
            by the learned II Additional District and Sessions Court at
            Hassan    in   Crl.A.No.184/2018      dated   20.09.2019   and
            consequently. (2) confirm the judgment and order passed by
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                                                NC: 2024:KHC:45967
                                        CRL.RP No. 1438 of 2019




the learned Civil Judge and JMFC at Alur in C.C.No.461/2011
dated 12.07.2018 and etc.

      This Criminal Revision Petition, coming on for hearing,
this day, order was made therein as under:

CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                        ORAL ORDER

Heard Sri. K.G. Sadashivaiah, learned counsel for the

revision petitioner. None appears for the respondent.

2. Accused who suffered conviction in

C.C.No.461/2011 confirmed in Crl.A.No.184/2018 and

ordered to pay a fine of Rs.2,25,000/-, of which a sum of

Rs.2,20,000/- as compensation to the complainant and the

balance sum of Rs.5,000/- towards the defraying expenses

of the State in the revision petition.

3. Facts in a nutshell which are utmost necessary for

disposal of the revision petition are as under:

A complaint came to be lodged under Section 200

Cr.P.C. alleging the commission of the 0ffence punishable

under Section 138 of Negotiable Instruments Act ('N.I.Act'

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for short), by contending that accused had borrowed a

sum of Rs.2,30,000/- as a hand loan from the complainant

on 02.04.2011 agreeing to repaying the same within a

short period of time and towards the repayment passed on

a cheque on 05.07.2011, which on presentation came to

be dishonoured with an endorsement 'funds insufficient'.

Legal notice was caused by the complainant which was

duly served on the accused and there was no compliance

of the notice nor there was any reply. Therefore,

complainant sought for action against the accused.

4. Learned Trial Judge, after complying with the

necessary formalities, summoned the accused and

recorded the plea. Accused pleaded not guilty and

therefore, trial was held.

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

complainant got examined himself as PW.1 and placed on

record 14 documents which were exhibited and marked as

Ex.P.1 to P.14 comprising of dishonoured cheque, bank

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endorsement, copy of the legal notice, postal

acknowledgment, etc.

6. Detailed cross examination of PW1 did not yield

any positive material so as to hold that the case of the

complainant is incorrect or to dislodge the presumption

available to the complainant.

7. In cross examination of PW1 it was also

questioned about the lending capacity of the complainant

wherein PW1 has answered that he had landed properties

and he has also settled the land in favour of the children

and there is no BPL card in the name of the petitioner. He

has further stated that he has grown agricultural crops and

he had realized the sale consideration to the extent of

Rs.3,60,000/- and another Rs.26,000/-.

8. Thereafter, the Trial Magistrate recorded the

accused statement wherein the accused has denied all the

incriminating materials. In order to rebut the presumption

available to the complainant, accused got examined

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himself as DW.1. In the cross-examination of DW.1, he

denies receipt of notice. He also answered that he has

given the 'stop payment' information to the bank, but he

does not remember the date of issuance of such

instructions to the banker.

9. He further admits that in the paper publication

issued by him he has mentioned his address as residing

near Edga. He also admits that he has mentioned his

address as Adlimane Road, Hassan. He further answered

that complainant is a stranger to him and the cheque has

been misused by the complainant.

10. On completion of recording of evidence, the Trial

Magistrate heard the parties in detail and on cumulative

consideration of oral and documentary evidence on record,

convicted the accused and sentenced as referred to supra.

11. Being aggrieved by the same, accused filed an

appeal before the District Court in Crl.A.No.184/2018.

Learned Judge in the First Appellate Court after securing

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the records, heard the parties in detail and on re-

appreciation of the material evidence on record, allowed

the appeal of the accused and acquitted the accused.

12. Being aggrieved by the same, complainant is

before this Court.

13. Sri. K.G. Sadashivaiah, learned counsel for the

petitioner reiterating the grounds urged in the revision

petition contended that approach of the First Appellate

Court in not properly appreciating the material evidence

on record and placing reliance on the judgment of

Basalingappa Vs. Mudibasappa reported in 2019 (3)

KCCR 2473 (SC) has resulted in miscarriage of justice in

the light of the judgment of the Hon'ble Apex Court in the

case of Rajesh Jain Vs. Ajay Singh - (2023) 10 SCC

148 and sought for allowing the revision petition.

14. Learned counsel for the respondent/accused

remained absent before this court. As such, this court on

perusal of the material on record meticulously. On such

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perusal of the material on record, it is crystal clear that

the issuance of the cheque and the signature found therein

is not in dispute. Learned Judge in the Trial Magistrate

has therefore rightly held presumption in favour of the

complainant as is available under Section 139 of N.I.Act.

15. Learned Judge in the First Appellate Court placed

reliance on the judgment of Basalingappa referred to

supra. Learned Judge in the First Appellate Court has also

taken note of the principles of law enunciated in Shiva

Murthy Vs. Amruthraj reported in 2009 (2) Kar. L.J.

98 and held that when the complainant himself is a person

belonging to below poverty line, the lending capacity of

such persons cannot be presumed by resorting to Section

139 of N.I. Act and therefore doubted the lending capacity

of the complainant and acquitted the accused.

16. On close reading of the cross examination of

PW1, as referred to supra, it is crystal clear that even

though the complainant has been questioned about the

lending capacity, the complainant has answered in

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categorical terms that he had the money to the extent of

Rs.3,60,000/- from the agricultural produce. He has also

answered that he does not have any BPL card. Under such

circumstances, how could the First Appellate Court

consider the complainant as a person who is a person of

below poverty line is question that remains unanswered.

17. The First Appellate Court is no doubt entitled to

re-appreciate the material evidence on record, but the oral

evidence of PW1 when kept in juxta position with the oral

evidence of DW1, it is crystal clear that the complainant

has placed material on record which would be sufficient

enough to raise the presumption in favour of the

complainant. Patta book produced by the complainant

marked as Ex.P.13 and endorsement issued by the

competent authority that the complainant does not

possess a BPL card has not been properly looked into by

the First Appellate Court while applying the principles of

law enunciated in Shiva Murthy's case supra.

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18. Under such circumstances, based on the

principles of law in Basalingappa and Shiva Murthy's case,

the learned Judge in the First Appellate Court reversing

the order of conviction recorded by the Trial Magistrate

has resulted in miscarriage of justice calling for

interference by this court.

19. Accordingly, the following order:

ORDER

i. Criminal revision petition is allowed.

ii. The order of the First Appellate Court in Crl.

Appeal No.184/2018 is hereby set aside.

iii. The order of the Trial Magistrate convicting the

accused for the offence under Section 138 of

the N.I. Act is maintained. But the fine amount

awarded by the Trial Magistrate in a sum of

Rs.2,25,000/- is reduced to Rs.2,20,000/- by

setting aside the fine of Rs.5,000/- payable to

the State towards the defraying expenses of the

State.

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iv. The entire amount of Rs.2,20,000/- is payable

by the accused to the revision petitioner on or

before 15.12.2024, failing which the

complainant / revision petitioner is at liberty to

execute the order in accordance with law.