Karnataka High Court

Ms Savitha vs Mahaveera A.S on 15 November, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                    NC: 2024:KHC:46499
                                                CRL.RP No. 968 of 2023
                                            C/W CRL.RP No. 981 of 2023
                                                CRL.RP No. 989 of 2023


              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                DATED THIS THE 15TH DAY OF NOVEMBER, 2024

                                   BEFORE
                   THE HON'BLE MR JUSTICE V SRISHANANDA
               CRIMINAL REVISION PETITION NO. 968 OF 2023
                                     C/W
               CRIMINAL REVISION PETITION NO. 981 OF 2023
               CRIMINAL REVISION PETITION NO. 989 OF 2023
            IN CRL.RP No. 968/2023

            BETWEEN:

               MS. SAVITHA,
               W/O SRINIVAS B,
               AGED ABOUT 38 YEARS,
               R/O THORANAKADU , BASARIKAL,
               SAMSE POST, MUDIGERE TALUK,
               CHIKKAMAGALURU DISTRICT - 577 132.
                                                          ...PETITIONER
            (BY SRI. DHANANJAY KUMAR, ADVOCATE)
Digitally
signed by   AND:
MALATESH
KC             MAHAVEERA A.S,
Location:      S/O AJITH KUMAR,
HIGH
COURT OF       AGED ABOUT 39 YEARS,
KARNATAKA      BUSINESSMAN,
               R/O MAHAVEERA HOTEL,
               SAMSE POST, MUDIGERE TALUK,
               CHIKKAMAGALURU DISTRICT - 577 132.
                                                        ...RESPONDENT
            (BY SRI. K.S. GANESHA, ADVOCATE)
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                                          NC: 2024:KHC:46499
                                      CRL.RP No. 968 of 2023
                                  C/W CRL.RP No. 981 of 2023
                                      CRL.RP No. 989 of 2023


       THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 23.05.2023
PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AT
CHIKMAGALURU, IN CRL.APPEAL NO.185/2022 AND ALSO SET
ASIDE THE CONVICTION ORDER DATED 28.09.2022 PASSED IN
C.C.NO.206/2015 PASSED BY THE COURT OF THE CIVIL JUDGE
AND     JMFC   AT   SRINGERI      UNDER   THE   FACTS   AND
CIRCUMSTANCES OF THE CASE.

IN CRL.RP NO. 981/2023

BETWEEN:

      MS. SAVITHA,
      W/O SRINIVASA B,
      AGED ABOUT 38 YEARS,
      R/O THORANAKADU,
      SAMSE POST, MUDIGERE TALUK,
      CHIKKAMANGALURU DISTRICT - 577 101.
                                        ...PETITIONER

(BY SRI. DHANANJAY KUMAR, ADVOCATE)

AND:

      RAGHAVENDRA,
      S/O GOVINDE GOWDA,
      AGED ABOUT 41 YEARS,
      BUSINESSMAN,
      R/O ULLUR KORE, BALGAL VILLAGE,
      SAMSE POST, MUDIGERE TALUK,
      CHIKKAMANGALURU DISTRICT - 577 101.
                                       ...RESPONDENT

(BY SRI. K.S. GANESHA, ADVOCATE)

      THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
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                                                 NC: 2024:KHC:46499
                                          CRL.RP No. 968 of 2023
                                      C/W CRL.RP No. 981 of 2023
                                          CRL.RP No. 989 of 2023


PRAYING    TO    SET    ASIDE       THE   JUDGMENT         DATED
23.05.2023 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS        JUDGE         AT       CHIKMAGALURU           IN
CRL.A.NO.183/2022       AND        ALSO    SET     ASIDE     THE
CONVICTION      ORDER   DATED         28.09.2022    PASSED    IN
C.C.NO.207/2015 PASSED BY THE COURT OF THE CIVIL
JUDGE AND JMFC AT SRINGERI UNDER FACTS AND
CIRCUMSTANCES OF THE CASE.

IN CRL.RP NO. 989/2023

BETWEEN:

   SMT. SAVITHA,
   W/O SRINIVAS B,
   AGED ABOUT 38 YEARS,
   R/AT THORANAKADU HOUSE,
   BASRIKAL SAMSE POST,
   MUDIGERE TALUK - 577 132.
                                                   ...PETITIONER

(BY SRI. DHANANJAY KUMAR, ADVOCATE)

AND:

   MUNAVAR BASHA
   S/O S.U. NASSIR AHAMMED,
   AGED ABOUT 52 YEARS,
   BUSINESSMAN,
   R/O KALKATTE, MENASE VILLAGE,
   BHARATHINAGAR POST,
   SRINGERI TALUK - 577 139.
                                                 ...RESPONDENT

(BY SRI. K.S. GANESHA, ADVOCATE)

    THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C
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                                             NC: 2024:KHC:46499
                                         CRL.RP No. 968 of 2023
                                     C/W CRL.RP No. 981 of 2023
                                         CRL.RP No. 989 of 2023


PRAYING     TO   SET   ASIDE     THE     JUDGMENT    DATED
23.05.2023 PASSED BY THE II ADDL. DISTRICT AND
SESSIONS JUDGE AT CHIKMAGALURU IN CRL.APPEAL
NO.184/2022 AND ALSO SET ASIDE THE CONVICTION
ORDER DATED 28.09.2022 PASSED IN C.C.NO.208/2015
PASSED BY THE COURT OF THE CIVIL JUDGE AND JMFC AT
SRINGERI UNDER THE FACTS AND CIRCUMSTANCES OF
THE CASE.


     THESE PETITIONS, COMING ON FOR ADMISSION, THIS

DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                       ORAL ORDER

Heard Sri Dhananjay Kumar, learned counsel for the

revision petitioner and Sri K.S.Ganesha, learned counsel

for the respondent.

2. These three revision petitions are filed by the

common accused against the three different complaints

which ended in conviction for the offence punishable under

Section 138 of the N.I.Act. In each of the cases, learned

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the Trial Magistrate has imposed the fine and

imprisonment as under:

CC number Fine amount (in Default sentence Defraying Rs.) expenses to the State (in Rs.)

C.C.No.206/2015 9,75,000-00 Simple 5,000-00 imprisonment for a period of one year

C.C.No.207/2015 9,60,000-00 Simple 5,000-00 imprisonment for a period of one year

C.C.No.208/2015 9,50,000-00 Simple 5,000-00 imprisonment for a period of one year

3. Being aggrieved by the said order, the accused

filed first appeal before the First Appellate Court. The

learned Judge in the First Appellate Court, after securing

records, heard the parties in detail and dismissed the

appeal filed by the accused and confirmed the order of

conviction sentence passed by the Trial Magistrate.

4. Being further aggrieved by the same, the

common accused has preferred these three revision

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petitions before this Court against the orders of the Trial

Magistrate and learned Judge in the First Appellate Court.

5. Facts in brief which are utmost necessary for

disposal of these revision petitions are as under:

4.1 The accused, being the lady, is said to have

issued three different cheques to three different

complainants, which, on representation, came to be

dishonoured with an endorsement 'funds insufficient'.

Legal notice was issued, which was not complied but an

untenable replay was sent stating that the cheque has

been misused by the complainant.

4.2 Therefore, the complainant in each of these

cases sought for action against the accused.

4.3 The presence of the accused was secured by

the Trial Magistrate after completing necessary formalities

and plea was recorded. Accused pleaded not guilty;

therefore, trial was held.

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6. In each of these cases, the complainant got

examined themselves as P.W.1 and one witness on their

behalf as P.W.2.

7. The complainant placed on record dishonoured

cheque, bank endorsement and copy of the legal notice

reply.

8. Detailed cross-examination of P.W.1 running

into several pages did not yield any positive materials

either in disbelieving the version of the complainant nor

disrobe the presumption available to the complainant. In

nutshell, the defense of the accused is that the cheques in

question were misused by the complainants in active

collusion with Sri Mahaveer, who is a close relative of the

complainant who has stolen the signed cheques kept in

the shop of the accused.

9. The accused statement as contemplated under

Section 313 of the Cr.P.C., was recorded by the Trial

Magistrate after recording the evidence of the complainant

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and his witness. The accused has denied all the

incriminatory circumstances but contended that she is not

acquainted the complainant and there were no

transactions as claimed by the complainants. Pertinently

the accused did not take out the name of Sri Mahaveer in

her explanation while recording the accused statement.

10. Thereafter, the accused got examined herself as

D.W.1. In her examination-in-chief itself, she has stated

that she does not know how cheque in question has

reached the hands of the complainant. It is also pertinent

to note that in her examination-in-chief there is no

mention as to the theory that has been put forward stating

that the cheques were stolen by a close relative i.e., Sri

Mahaveer.

11. During the cross-examination, she admits that

cheque is belongs to her and the signature found therein is

also belonging to her.

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12. On conclusion of recording evidence of the

parties, the learned Trial Magistrate heard the parties in

detail and after considering the oral and documentary

evidence placed on record, convicted the accused and

imposed the fine as stated supra.

13. Being aggrieved by the same, the accused filed

appeals before the learned District Judge. Learned Judge

in the First Appellate Court, after securing the records and

hearing the parties dismissed the appeals of the accused.

14. Being further aggrieved by the same, the

accused is before this Court.

15. Sri Dhananjay Kumar, learned counsel for the

revision petitioner, reiterating the grounds urged in the

revision petition, vehemently contended that in the reply

notice itself, accused has specifically stated that she is not

acquainted with the complainants and she does not know

how the cheques have reached the hands of the respective

complaints and she suspected foul play played by one of

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her relatives namely, Mahaveer, which has been ignored

by the Trial Magistrate and learned Judge in the First

Appellate Court while invoking the presumption available

to the complainant under Section 139 of the N.I.Act and

sought for allowing the revision petition.

16. Per contra, Sri K.S.Ganesh, learned counsel

representing the complainants in each of these cases,

supports the impugned order.

17. Having heard the parties in detail, this Court

perused the material on record meticulously.

18. On such meticulous perusal on record, there is

a specific case by each of the complainants that they have

lent money to the accused towards the repayment;

cheques in question came to be issued. The dishonoured

cheques, bank endorsement and copy of legal notice were

marked before the Court, which were sufficient enough to

raise the presumption available to the complainant under

Section 139 of the N.I.Act.

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19. No doubt it is a rebuttable presumption. In

order to rebut the same, the accused has stepped in to the

witness box and examined herself and specifically stated

that she is not acquainted with the complainant in each of

these cases but does not know how cheques reached the

hands of the complainant. It is pertinent to note that,

there was no oral testimony by the accused in her

examination-in-chief itself that it is Mahaveer who has

stolen the signed cheque which was kept in the shop of

the accused and handed over the same to the respective

complainants then filed false cases the accused.

20. In the absence of any such material evidence

on record and also not taking any positive action against

the complainant of the said Mahaveer for the alleged

misuse of the cheques in question, this Court is of the

considered opinion that the findings recorded by the Trial

Magistrate confirmed by the First Appellate Court are

correct.

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21. The accused has committed an offence

punishable under Section 138 of the N.I.Act as she failed

to rebut the presumption available to the complainant and

cannot be faulted with.

22. The learned Judge in the First Appellate Court

has rightly reappreciated the material evidence on record

while confirming the order of conviction.

23. This Court, that too in the revisional

jurisdiction, cannot revisit in to the factual aspects of the

matter unless it is patently defective. Therefore, this Court

is of the considered opinion that conviction order is to be

maintained.

24. Having said that, in each of these cases, the

learned Trial Magistrate has imposed a sum of Rs.5,000/-

each towards the defraying expenses of the State. The

same cannot be countenanced in law in view of the fact

that lis is between the parties and no State is involved. To

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that extent, the impugned needs interference by this

Court.

25. Accordingly, in view of the forgoing discussion,

this Court passes the following:

ORDER

i. Criminal Revision Petitions are allowed in

part.

ii. While maintaining the conviction of the

accused for the offence punishable under

Section 138 of the N.I.Act, fine amount

ordered by the learned Trial Magistrate

confirmed by the First Appellate Court is

modified as under:

CC number Fine amount (in Default sentence Rs.)

C.C.No.206/2015 9,70,000-00 Simple imprisonment for a period of one year

C.C.No.207/2015 9,55,000-00 Simple imprisonment for a period of one year

C.C.No.208/2015 9,45,000-00 Simple imprisonment for a period of one year

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    iii.   Complainants     are        entitled     for    the

           compensation           of          Rs.9,70,000/-

           Rs.9,55,000/-          and         Rs.9,45,000/-