Karnataka High Court

J V Jagadish vs Mr J R Anantharaman on 21 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                  NC: 2024:KHC:42112
                                              CRL.RP No. 765 of 2015




          IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                DATED THIS THE 21ST DAY OF OCTOBER, 2024

                                   BEFORE

                 THE HON'BLE MR JUSTICE V SRISHANANDA

               CRIMINAL REVISION PETITION NO. 765 OF 2015

          BETWEEN:

          J. V. JAGADISH
          S/O N J VEERABADRAPPA
          AGED ABOUT 47 YEARS,
          THEERTHARAMESHWARA NILAYA,
          KUVEMPU ROAD, SHIVAMOGGA-577401.
                                                        ...PETITIONER
          (BY SRI. MAHESHA V., ADVOCATE)
          AND:

          1.    MR. J. R. ANANTHARAMAN
                SINCE DECEASED REPRESENTED BY HIS LRS
Digitally
signed by 2.    SHANKER AVADANI
MALATESH        S/O LATE. ANANTHARAMAN,
KC
                AGED ABOUT 36 YEARS,
Location:
HIGH
COURT OF 3.     ABHIRAM
KARNATAKA       S/O LATE. ANANTHARAMAN,
                AGED ABOUT 32 YEARS,

                BOTH ARE R/OF NO.68, ARSHA NILAYA,
                NEAR LIC OFFICE, KOTE ROAD,
                SHIMOGA-577201

                                                     ...RESPONDENTS
          (BY SRI. B. S. PRASAD., ADVOCATE)
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                                          NC: 2024:KHC:42112
                                     CRL.RP No. 765 of 2015




     THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED
4.1.2013 PASSED BY THE J.M.F.C.-II, SHIMOGA IN
C.C.NO.3103/2009 (114/05) AND THE ORDER DATED
30.5.2015 PASSED BY THE III ADDL. S.J., SHIMOGA IN
CRL.A.NO.15/2013    AND    CONSEQUENLTY     ACQUIT    THE
PETITIONER OF THE CHARGES U/S 138 OF N.I.ACT AND ETC.

     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE V SRISHANANDA


                       ORAL ORDER

Heard Sri. Mahesha V., learned Counsel for the

revision petitioner and Sri. B.S.Prasad, learned Counsel for

the respondents.

2. The present revision petition is filed by the

petitioner/accused who suffered an order of conviction

passed in C.C.No.3109/2009 (old C.C.No.114/2005) and

confirmed in Crl.A.No.15/2013 on the file of III Addl.

District and Sessions Judge, Shivamogga by judgment

dated 30.05.2015.

3. The facts in brief which are utmost necessary for

disposal of the revision petition are as under;

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A complaint came to be lodged under Section 200 of

Cr.P.C., by the complainant alleging of the commission of

the offence punishable under Section 138 of the

Negotiable Instruments Act, against the accused. The

complaint averments reveal that the accused by name

J.V.Jagadish along with Shaban Mohammed jointly

borrowed a sum of Rs.4,35,000/- on 30.08.2003, a sum of

Rs.20,000/- on 17.09.2003 and further a sum of

Rs.25,000/- on 25.09.2003 from the complainant, who

was a private money lender. As against a sum of

Rs.4,80,000/- loan, accused issued the cheque in a sum of

Rs.5,35,000/- with accrued interest till upto 03.06.2004,

drawn on DCC Bank, Gopala Branch, Shivamogga. The

said cheque on presentation, came to be dishonored with

an endorsement that 'Account closed' on 09.06.2004.

4. A legal notice came to be issued under registered

post as well as certificate of posting to the accused to clear

the amount covered under the cheque.

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5. The accused received the notice sent under

certificate of posting on 23.06.2004, but failed to repay

the cheque amount nor issued any reply.

6. Thereafter, the learned trial Magistrate on

completing necessary formalities, took cognizance of the

offence under Section 138 of N.I.Act and summoned the

accused. The accused entered appearance and engaged

the services of an advocate. Plea was recorded. The

accused pleaded not guilty. Therefore the trial was held.

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

complainant got examined himself as PW1 and placed on

record 14 documents which were exhibited and are

marked as Exs.P1 to P14 comprising of original dishonored

cheque, bank endorsement, bank challan, notice copy,

undelivered postal cover, postal receipt, postal

acknowledgment, complaint, on Demand Promissory Note

with consideration receipt, letter, copy of money lender

license, day book with relevant entries and account

extract.

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8. In the cross-examination of PW.1, except

suggesting to the complainant that he is not liable to

repay the amount, no other useful materials are elicited so

as to prove that the case of the complainant is incorrect.

9. Thereafter, the accused statement as

contemplated under Section 313 of Cr.P.C., was recorded,

wherein the accused has denied all the incriminating

circumstances and submitted to the court that he would

lead rebuttal evidence.

10. The accused got examined himself has DW.1 and

he did not place any documentary evidence on record.

11. In the cross-examination, the accused has

admitted that he is residing in a house by name called

"Theertha Rameshwara Nilaya" for a period of 30 years

along with his family members. He admits that he was in

the business of transport and his father was also in the

same business.

12. He further admits that there is no documentary

evidence to establish that he was doing business along

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with Shaban Mohammed in oils. He admits that the said

Shaban Mohammed has taken money from Lakshmi

Finance and he does now know who is the proprietor of

Lakshmi Finance. He further admits that he had a Savings

Bank Account in DCC Bank, Gopala Branch, Shivamogga.

He admits that the address shown in Exs.P4 to 6 is his

address. He admits that he has not issued any stop

payment instructions to the Bank as the amount was

misused by Shaban Mohammed.

13. On completion of recording of evidence, the

learned trial Magistrate heard the parties in detail and on

considering the oral and documentary evidence placed on

record, convicted the accused for the offence punishable

under Section 138 of N.I.Act and imposed the fine amount

of Rs.10,00,000/- out of which a sum of Rs.9,90,000/-

was ordered to be paid as compensation to the

complainant. Being aggrieved by the said order, the

accused prepared an appeal before the District Court,

Shivamogga in Crl.A.No.15/2013.

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14. Learned District Judge in the first appellate court

after securing records heard the parties in detail and by

judgment dated 30.05.2015 dismissed the appeal of the

accused and confirmed the order of conviction and

sentence passed by the trial Magistrate.

15. Being further aggrieved by the same, the

accused is before this Court in this criminal revision

petition on the following:

GROUNDS

• The orders under challenge are the result of total non application of mind and hence the same are liable to be set aside.

• The courts below have miserably failed to venture in to the exercise to find out whether the amount covered under the cheque is legally enforceable liability or not.

• Admittedly under the Income Tax Act, any amount exceeding Rs.20,000-00 shall be paid by way of cheque. In the instant case, respondent claims to have paid the alleged loan by way of cheque but not in the name

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of the petitioner but in the name of one Shaban Ahmed.

• Neither the respondent has produced the proof of crediting the amount to the account of petitioner nor he has produced any document to show his financial capacity to pay such a huge amount.

• Both the courts below have failed to notice the interpolation carried in the entries of book of account. In fact the respondent/complainant himself has admitted the said aspects. Hence there was no reason for the courts below to hold the petitioner guilty of the offence.

• Courts below have failed to appreciate the fact that, the respondent had already filed a complaint against Mr.Shaban Ahmed in connection with the transaction in question. When he could not effectively prosecute the said case against him, he has miss-used the cheque belonging to the petitioner.

• Viewed from any angle the interference of this Hon'ble Court is just and necessary to meet the ends of justice.

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16. Sri.Mahesha V., learned Counsel for the

petitioner reiterating the grounds urged in the revision

petition vehemently contended that the amount was

admittedly borrowed by the accused as well as Shaban

Mohammed. Therefore, the liability of the accused under

the cheque is only to the extent of 50% even as per the

averments made in the complaint and therefore,

convicting the accused for the offence punishable under

Section 138 of N.I.Act, and imposing the fine of

Rs.10,00,000/- has resulted in miscarriage of justice and

sought for allowing the revision petition.

17. Per contra, Sri.B.S.Prasad, learned Counsel for

the respondents supports the impugned judgments. He

further contended that under Ex.P11, the accused had

admitted his liability towards the repayment, the cheque in

question marked at Ex.P1 came to be issued, which on

presentation got dishonored with an endorsement 'Account

closed' and the signature found in the Ex.P1 is that of the

accused and therefore, the complainant was successful in

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placing the material evidence on record sufficient enough

to raise the presumption available to the complainant

under Section 139 of N.I.Act and sought for dismissal of

the revision petition.

18. Insofar as the imposition of the double the fine

amount, Sri.B.S.Prasad, learned Counsel contended that

the transaction is of the year 2003 and therefore, the trial

court was justified in imposing the fine amount of

Rs.10,00,000/- as against the cheque amount of

Rs.5,35,000/- and sought for dismissal of the revision

petition in toto.

19. Having heard learned counsel for the parties, this

court perused the material on record meticulously. On

such perusal of the material on record, the following points

would arise for consideration:

1. Whether the revision petitioner makes out a case that the impugned judgments are suffering from patent legal error or jurisdictional error and thus suffering from legal infirmity and perversity and requires interference of this Court?

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2. Whether the sentence is excessive?

3. What order?

20. REGARDING POINT NOS.1 AND 2: In the case on

hand, the issuance of the cheque and the signature found

therein is not in dispute as admittedly, the cheque came to

be dishonored with an endorsement that 'Account closed'.

The possessing of Savings Bank Account in DCC Bank,

Gopala Branch, Shivamogga is not in dispute as DW.1

categorically admits in his cross-examination.

21. Further, the defence of the accused is that the

loan amount was borrowed by the accused along with

Shaban Mohammed and therefore, liability fastened on to

the accused alone under Ex.P1 is incorrect. It is for the

accused to seek for contribution from Shaban Mohammed

as he has categorically admitted in Ex.P11 towards

repayment of the joint loan, he has received the Ex.P1-

cheque. Admittedly, the cheque got dishonored and the

legal notice though served was not complied by the

accused.

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22. It is under those circumstances, the trial

Magistrate raised the necessary presumption available to

the complainant under Section 139 of the N.I.Act, in as

much as, not only the cheque has been relied upon by the

complainant but also the on Demand Promissory Note and

consideration.

23. No doubt, the presumption available to the

complainant under Section 139 of the N.I. Act, is a

rebutable presumption.

24. In order to rebut the presumption, the accused

has chosen to examine himself as PW.1. In such

evidence, except making a statement has self-serving in

nature, no other material evidence is placed on record,

which is sufficient enough to rebut the presumption

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

25. Accordingly, the order of conviction passed by

the trial court for the offence punishable under Section

138 of N.I.Act, and confirmed by the first appellate court

as against the accused, needs no interference.

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26. Now on coming to the question of imposition of

fine amount of Rs.10,00,000/- and out of which

Rs.10,000/- imposed towards defraying expenses of the

State is concerned, the imposition of fine amount of

Rs.10,000/- towards defraying expenses needs

interference of this Court by exercising the revisional

jurisdiction as the same cannot be countenanced in law in

view of the fact that the lis is privy to the parties and no

State Machinery is not involved.

27. Likewise it is to be noted that object of enacting

Section 138 of N.I. Act is primarily for recovering the

money swiftly and not to penalise the drawer. However, if

there is a failure to pay the adjudged compensation

default sentence of imprisonment can be ordered

ordinarily. But in a given case by recording special

reasons both imprisonment and fine can be ordered. In

the case on hand, no such special reasons are found in the

impugned judgments. Hence period of one year

imprisonment is set aside.

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28. Since the transaction is of the year 2003, taking

note of Section 80 of the N.I.Act., imposition of the fine

amount of Rs.9,90,000/- and payment of entire amount as

compensation would meet the ends of justice.

Accordingly, point No.1 is answered in the affirmative and

point Nos.2 is answered partly in the affirmative.

29. REGARDING POINT NO.3: In view of the findings

of this Court on point Nos.1 and 2 as above, the following:

ORDER

(1) Criminal Revision Petition is allowed in part.

(2) While maintaining the order of conviction

passed by the trial Magistrate, confirmed

by first appellate court for the offence

punishable under Section 138 of N.I. Act

and fine amount ordered by the trial

Magistrate and confirmed by the first

appellate Court is reduced to

Rs.9,90,000/- and the entire amount of

Rs.9,90,000/- is ordered to be paid as

compensation to the complainant.

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(3) Fine amount of Rs.10,000/- imposed by

the trial Magistrate and confirmed by the

first appellate Court towards defraying

expenses of the State is hereby set aside.

(4) Time is granted to the accused to pay the

balance fine amount till 15.11.2024, failing

which the accused shall undergo simple

imprisonment of one year.

(5) Office is directed to return the Trial Court

Records with a copy of this Order,