Karnataka High Court

Sri Gladson Immanuel Menon vs Sri Austin Vijaya Kumar on 21 October, 2024

Author: V Srishananda

Bench: V Srishananda

                                           -1-
                                                     NC: 2024:KHC:42337
                                                 CRL.RP No. 406 of 2022




                 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.406 OF 2022
             BETWEEN:
                 SRI GLADSON IMMANUEL MENON
                 S/O. DEVAPPAL MENON
                 AGED ABOUT 55 YEARS
                 R/AT. DOOR NO.6-18-731
                 MENON COMPOUND
                 NEAR SANGHANIKETHAN
                 MANNAGUDDA
                 MANGALURU-575 006.
                                                           ...PETITIONER
                (BY SMT. HALEEMA AMEEN, ADVOCATE)

             AND:
                 SRI AUSTIN VIJAYA KUMAR
                 S/O. LATE DANIEL
                 AGED ABOUT 48 YEARS
                 R/AT. VASANTHA NAGAR
                 LOWER MAROLI
Digitally        KULASHEKAR POST
signed by        MANGALURU-575 005.
MALATESH                                                ...RESPONDENT
KC
             (BY SRI ARCHANA K.M., AMICUS CURIAE)
Location:
HIGH           THIS CRIMINAL REVISION PETITION IS FILED UNDER
COURT OF  SECTION 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE
KARNATAKA JUDGMENT    AND   ORDER     DATED   11.06.2019   MADE  IN
             C.C.No.1013/2017 BY THE LEARNED J.M.F.C COURT (V COURT)
             MANGALURU, D.K. AND JUDGMENT AND ORDER DATED 25.01.2022
             MADE IN CRL.A.No.76/2019 BY THE COURT OF THE II ADDL.
             DISTRICT AND SESSIONS JUDGE, D.K. MANGALURU AND ACQUIT
             THE PETITIONER AND ALLOW THE PETITION.

                  THIS CRIMINAL REVISION PETITION, COMING ON FOR FINAL
             HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
                                    -2-
                                                NC: 2024:KHC:42337
                                           CRL.RP No. 406 of 2022




CORAM:     HON'BLE MR JUSTICE V SRISHANANDA

                           ORAL ORDER

Heard Smt.Haleema Ameen, learned counsel for the

revision petitioner and Mis Archana K.M., learned Amicus Curiae

for the respondent.

2. Accused who suffered an order of conviction for the

offence punishable under Section 138 of Negotiable

Instruments Act in C.C.No.1013/2017, on the file of JMFC V

Court, Mangaluru, confirmed in Crl.A.No.76/2019, on the file of

II Additional District and Sessions Judge, Dakshina Kannada,

Mangaluru, is the revision petitioner.

3. Facts in brief which are utmost necessary for

disposal of the present revision petition are as under:

A complaint came to be lodged under Section 200

Cr.P.C., for taking action for the offence punishable under

Section 138 of Negotiable Instruments Act by the complainant

by contending that accused has lent a sum of Rs.1,50,000/- as

hand loan in the month of May 2014 with a promise by the

accused to repay the same within a short period.

4. Despite repeated request, that there was no

repayment and thereafter finally a cheque bearing No.055277

NC: 2024:KHC:42337

was issued by the accused on 18.03.2017 in a sum of

Rs.1,50,000/- drawn on Saraswat Co-operative Bank Limited,

Mannagudda Branch, Mangaluru.

5. The said cheque on presentation returned with an

endorsement 'funds insufficient' and there was a legal notice

issued and there was no compliance to the calling of the notice.

Hence, complaint filed seeking action against the accused.

6. Presence of the accused was secured by the learned

Trial Magistrate after completing the necessary formalities and

plea was recorded. Accused pleaded not guilty. Therefore, trial

was held.

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

complainant got examined himself as P.W.1 and placed on

record five documents which were exhibited and marked as

Exs.P.1 to P.5, comprising of original cheque, bank

endorsement, office copy of legal notice, postal receipt, letter

issued by postal authority, pass book.

8. Detailed cross-examination of P.W.1 did not yield

any positive materials so as to disbelieve the version of the

complainant nor to rebut the presumption available to the

complainant under Section 139 of Negotiable Instruments Act.

NC: 2024:KHC:42337

9. Thereafter accused statement as contemplated

under Section 313 of Cr.P.C., was recorded. Accused has

denied all the incriminating circumstances that were found

against him.

10. In order to rebut the presumption available to the

complainant, accused entered into the witness box and got

examined himself as D.W.1 and placed on record six documents

which are pay in slip counterfoils.

11. Thereafter learned Trial Magistrate heard the

parties and on considering the oral and documentary evidence

placed on record, noticed that the material evidence placed on

record by the accused was not sufficient to rebut the

presumption available to the complainant under Section 139 of

Negotiable Instruments Act and the material evidence placed

on record to show that he has issued blank cheque in favour of

the complainant having not been established, convicted the

accused under Section 138 of Negotiable Instruments Act and

ordered to pay fine of Rs.1,55,000/- of which Rs.1,50,000/-was

ordered to pay compensation to the complainant, balance sum

of Rs.5000/- towards the defraying expenses of the State.

NC: 2024:KHC:42337

12. Being aggrieved by the same, accused preferred an

appeal before the District Court in Crl.A.No.76/2019.

13. Learned Judge in the First Appellate Court after

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

appreciation of the material on record dismissed the appeal of

the accused.

14. Being aggrieved by the same, accused is before this

Court in this revision.

15. Smt.Haleema Ameen, learned counsel for the

revision petitioner reiterating the grounds urged in the revision

petition contended that when accused has specifically deposed

before the Court that he has issued the blank cheque which

was marked at Ex.P.1 and the complainant was filled other

details in Ex.P.1 - cheque and presented the same. Accused

was not duty bound to pay the amount as there was no legally

recoverable debt involved in Ex.P.1 and sought for allowing the

revision petition.

16. Per contra, learned Amicus Curiae Smt. Archana

K.M., supported the impugned judgment.

17. Having heard the parties this Court perused the

material on record meticulously.

NC: 2024:KHC:42337

18. On such perusal of the material on record, the

following points would arise for consideration:

1) Whether the impugned judgments are suffering

from legal infirmity and perversity, factual

patent error or error of jurisdiction and thus calls

for interference?

2) Whether the sentence is excessive?

3) What order?

19. Regarding point Nos.1 and 2: In the case on

hand, complainant has specifically stated on oath that he had

lent sum of Rs.1,50,000/- in the month of May, 2014 as a hand

loan to the accused which was agreed to be repaid.

20. Towards repayment of the amount, cheque in

question came to be issued by the accused is the statement

made by the complainant on oath.

21. Admittedly, cheque is belongs to the accused and

the signature found therein is also that of the accused. Cheque

came to be dishonored with an endorsement 'funds insufficient'

and therefore, complainant has discharged the initial burden to

invoke the presumption available under Section 139 of

Negotiable Instruments Act.

NC: 2024:KHC:42337

22. In the cross-examination of P.W.1, suggestions

made on record that the accused has issued the blank cheque

which has been misused by the complainant has been denied.

23. Absolutely there is no positive action taken by the

accused against the complainant if there is any misuse as

alleged.

24. The testimony of D.W.1 is not sufficient enough to

dislodge the presumption available to the complainant under

Section 139 of Negotiable Instruments Act, which has been

rightly appreciated by the learned Trial Magistrate, confirmed

by the First Appellate Court and requires no emphasis by this

Court that too in the revisional jurisdiction.

25. Having said so, learned Trial Magistrate has

awarded fine of Rs.1,55,000/- of which sum of Rs.1,50,000/-

was ordered to be made as compensation to the complainant.

Balance sum of Rs.5000/- was ordered to be appropriated

towards defraying expenses of the State which cannot be

countenanced in law having regard to the fact that the lis is

privy to the parties and no State machinery was involved.

Accordingly, the sentence needs modification.

NC: 2024:KHC:42337

Hence, point Nos.1 and 2 are answered in negative and

partly affirmative.

26. Regarding point No.3: In view of findings of this

Court on point Nos.1 and 2, following order is passed:

ORDER

(i) Revision petition is allowed in part.

(ii) While maintaining the conviction of the accused

for the offence punishable under Section 138 of

Negotiable Instruments Act, fine awarded by the

learned Trial Magistrate in a sum of

Rs.1,55,000/- is reduced to sum of

Rs.1,50,000/- and entire sum of Rs.1,50,000/- is

ordered to be paid as compensation to the

complainant.

(iii) Balance sum of Rs.5000/- awarded by the

learned Trial Magistrate confirmed by the First

Appellate Court towards the defraying expenses

of the State is hereby set aside.

(iv) Time is granted for the accused to pay the

balance amount till 15th of November 2024,

NC: 2024:KHC:42337

failing which, the accused shall undergo simple

imprisonment for a period of six months.