Karnataka High Court

Sri Santhosh vs Sri Manjunatha H V on 16 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                  NC: 2024:KHC:41922
                                              CRL.RP No. 374 of 2017




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 16TH DAY OF OCTOBER, 2024

                                    BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                  CRIMINAL REVISION PETITION No.374 OF 2017
            BETWEEN:
            1.    SRI SANTHOSH
                  S/O THIMMEGOWDA,
                  29 YEARS,
                  VADDARAKOPPALU VILLAGE,
                  KATTAYA HOBLI,
                  HASSAN TALUK
                  HASSAN -573201
                                                       ...PETITIONER
            (BY SRI SUDHARSHAN L, ADVOCATE)
            AND:

            1.    SRI MANJUNATHA H V
                  S/O VENKATAPPA,
                  45 YEARS,
                  RANINARAYANA NILAYA,
                  BEHIND MINI VIDANASOUDHA,
Digitally         SHANKARIPURAM 1EXTENSION,
signed by         HASSAN-5732010
MALATESH                                              ...RESPONDENT
KC          (BY SRI JAGRUTH FOR SRI RAHUL RAI.K, ADVOCATES)
Location:
HIGH             THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
COURT OF    CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
KARNATAKA   CONVICTION AND SENTENCE DATED 23.08.2016 ON THE FILE
            OF   PRL.  CIVIL  JUDGE   AND  J.M.F.C., HASSAN   IN
            C.C.NO.8801/2014 AND THE JUDGMENT DATED 01.02.2017
            PASSED BY THE V ADDL. DIST. AND SESSIONS JUDGE,
            HASSAN IN CRL.A.NO.183/2016.

                THIS PETITION, COMING ON FOR HEARING, THIS DAY,
            ORDER WAS MADE THEREIN AS UNDER:
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                                               NC: 2024:KHC:41922
                                         CRL.RP No. 374 of 2017




CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                         ORAL ORDER

Heard Sri L.Sudharshan, learned counsel for the revision

petitioner and Sri Jagruth, for Sri Rahul Rai K, learned counsel

for the respondent.

2. The revision petition filed by the accused who suffered an

Order of conviction for the offence punishable under Section

138 of the Negotiable Instruments Act in C.C.No.8801/2014

dated 23.08.2016 on the file of the Prl. Civil Judge and JMFC,

Hassan, confirmed in Crl.A.No.183/2016 dated 01.02.2017 on

the file of the V Addl. District and Sessions Judge, Hassan.

3. Facts of the case in brief which are utmost necessary for

disposal of the petition are as under:

A complaint came to be lodged against the accused under

Section 200 of code of Criminal Procedure alleging commission

of an offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 by contending that accused and

complainant were known to each other. In their friendship, in

August 2013 complainant had lent financial assistance in a sum

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of Rs.6,00,000/- to the accused to meet his financial

exigencies, with a promise to repay the same in short time.

4. However, despite repeated demands, when the loan

amount was not repaid, cheque bearing No.444505 dated

10.09.2013 in a sum of Rs.6,00,000/- drawn on ING Vysya

Bank, Hassan Branch was passed on by the accused to the

complainant which on presentation, returned with an

endorsement 'insufficient funds' on 12.09.2013.

5. Legal notice was issued to the accused which was served

and an untenable reply was issued by accused. Thereafter,

complainant approached the learned Trial Magistrate for taking

action against the accused.

6. Learned Trial Magistrate after completing the necessary

formalities, summoned the accused and recorded the plea.

Accused pleaded not guilty and therefore, trial was held.

7. In order to prove his case, complainant got himself

examined as P.W.1 and placed on record six documents which

were exhibited and marked as Exs.P.1 to P6 comprising of

dishonoured cheque, bank endorsement, office copy of legal

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notice, postal acknowledgment card, reply notice and

complaint.

8. Cross examination of P.W.1 did not yield any positive

material so as to disbelieve the version of the complainant.

9. Thereafter, accused statement as is contemplated under

Section 313 of the Code of Criminal Procedure was recorded

wherein accused denied all the incriminatory circumstances

found against him.

10. In order to rebut the presumption available to the

complainant, accused got examined himself as D.W.1 and two

more witnesses by name Irfan Pasha and Sannaswamy were

examined as D.Ws.2 and 3.

11. On behalf of the accused, five documents were placed on

record which were exhibited and marked as Exs.D.1 to D.5

comprising of notice issued by Bhuthanatheshwara temple,

postal cover, complaint lodged by the accused against the

complainant before the Superintendant of Police, certified copy

of the private complaint filed by the complainant and certified

copy of the complaint filed by one L.K.Vijaykumar.

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12. In the cross-examination of D.Ws.1 to 3, it has been

elicited that the accused has subscribed for a chit in the year

2011 which chit ended in the year 2014. Accused has admitted

the signature found in Ex.P.4. He admits that in Exs.D.1 and

D.2 there is difference in the ink of the writing. He also admits

that he had no impediment to get the persons examined whose

names had appeared in Exs.D.1 and D.2.

13. D.Ws.2 and 3 are also subscribers to the chit transaction

and they have also supported the case of the accused by

contending that chit transaction commenced in the year 2011

and it was a 15 to 16 months chit and ended in the year 2012.

14. D.W.3 in his cross-examination also admits the chit

transaction and has answered that there were 30 members in

the said chit transaction and it ended in July 2012.

15. On conclusion of recording of evidence, learned Trial

Magistrate heard the arguments of the parties. On cumulative

analysis of the oral and documentary evidence placed on

record, convicted the accused for the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881 and

imposed fine of Rs.6,05,000/-, of which sum of Rs.6,00,000/-

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was ordered to be paid as compensation and Rs.5,000/-

towards defraying expenses of the State. In default, accused

was sentenced to undergo imprisonment for one year.

16. Being aggrieved by the said judgment, accused filed an

appeal before the District Court in Crl.A.No.183/2016.

17. Learned Judge in the First Appellate Court after securing

the records heard the parties in detail and dismissed the appeal

on merits.

18. Being further aggrieved by the same, accused is before

this Court in this revision petition.

19. Sri Sudharshan, learned counsel for the revision

petitioner reiterating the grounds urged in the revision petition

vehemently contended that the complainant has misused the

cheque which was given as security in respect of chit

transaction and therefore, there was no legally recoverable

debt covered under Ex.P.1-dishonoured cheque which has not

been rightly appreciated by both the Courts and sought for

allowing the revision petition.

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20. Per contra, Sri Jagruth, advocate appearing on behalf of

Sri Rahul Rai, learned counsel for the respondent supports the

impugned judgments.

21. Having heard the parties in detail, this Court perused the

material on record meticulously.

22. On such perusal of the material on record, complainant

having stepped into the witness box specifically deposed that

the accused borrowed financial assistance from him and

towards repayment of Rs.6,00,000/-, cheque in question vide

Ex.P.1 came to be issued.

23. There is no dispute that the cheque belongs to the

accused and signature found on the cheque is that of the

accused. Therefore, initial burden has been discharged by the

complainant by marking Ex.P.1 and signature found therein to

raise presumption under Section 139 of the Negotiable

Instruments Act.

24. It is the defence of the accused that cheque was actually

given as security in respect of the chit transaction. Except oral

testimony of D.Ws.1 to 3, there is no other material placed to

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establish that there was a chit transaction wherein accused and

D.Ws.2 and 3 have participated and cheque in question was

given as security in the said chit transaction.

25. Assuming so that any such chit transaction exited, there

must be some document to show that accused was a prized

subscriber and he has got money out of chit transaction and he

has repaid the same.

26. No such evidence is forthcoming on record. Under such

circumstances any amount of oral evidence placed on record

either by the accused or by his witnesses would not improve

the case of the accused in rebutting the presumption available

to the complainant.

27. The complaint given to the Superintendent of Police is of

no significance inasmuch as result of the said complaint is not

forthcoming on record.

28. Assuming for a moment that cheque that has been given

by the accused towards security has been misused, some

positive action should have been taken by the accused, at least

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after having engaged the services of an advocate and he was

summoned before the learned Trial Magistrate.

29. No such material is forthcoming on record as to the

positive action taken by the accused either by filing a police

complaint or issuing a legal notice etc.,

30. Under such circumstances, this Court is of the considered

opinion that rebuttal evidence sought to be placed on record by

the accused was not sufficient enough to rebut the preumption

available to the complainant under Section 139 of the

Negotiable Instruments Act, 1881, which has been rightly

appreciated by the learned Trial Magistrate and confirmed by

the learned Judge in the First Appellate Court.

31. Therefore, this court is of the considered opinion that the

impugned judgments needs no interference.

32. Having said thus, it is seen that Rs.5,000/- has been

imposed by the learned Trial Magistrate towards defraying

expenses of the State which needs interference by this Court,

inasmuch as, the lis is privy to the parties and no State

machinery is involved in the case.

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33. Accordingly, to that extent, the order of sentence passed

by the learned Trial Magistrate confirmed by the learned Judge

in the First Appellate Court needs interferences.

34. Hence, the following:

ORDER

(i) Criminal Revision Petition is allowed in part.

(ii) While maintaining the conviction of the accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, fine of Rs.6,05,000/- is reduced to Rs.6,00,000/-. Entire amount of Rs.6,00,000/- is ordered to be paid as compensation to the complainant.

(iii) Time is granted to the accused to pay the fine amount till 15th November 2024.

(iv) Amount in a sum of Rs.5,000/- imposed by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court towards defraying expenses of the State is hereby set-aside.