Karnataka High Court
Smt Sumithra @ Sumitha vs Smt Suguna Elcy Leema on 21 October, 2024
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NC: 2024:KHC:42155
CRL.RP No. 570 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL REVISION PETITION NO. 570 OF 2015
BETWEEN:
SMT. SUMITHRA @ SUMITHA
W/O DEVRAJ B.KOTIAN,
AGED ABOUT 46 YEARS,
C/O.SURESH, DEREBAIL,
KONCHADY, MANGALURU,
D.K.DISTRICT-571 001.
...PETITIONER
(BY SRI. SHARATH P.H AND
SRI. SACHIN B.S, ADVOCATES)
AND:
SMT. SUGUNA ELCY LEEMA
W/O ANIL LEEMA,
Digitally signed by AGED ABOUT 45 YEARS,
HARIKRISHNA V R/O.SUVARNA ROAD, 6TH CROSS,
Location: HIGH KANKANADY, VALENCIA, MANGALURE,
COURT OF D.K.DISTRICT-571 001.
KARNATAKA
...RESPONDENT
(BY SMT. ANANYA RAI AND
SRI. M. VISHWAJITH RAI, ADVOCATES)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 16.3.2015 IN
CRIMINAL APPEAL NO.168 OF 2014 ON THE FILE OF IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE DK MANGALORE
AND SET ASIDE THE JUDGMENT DATED 28/6/2014 IN
CC.NO.148/2014 ON THE FILE OF JMFC (IV COURT),
MANGALORE IN THE INTEREST OF JUSTICE.
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CRL.RP No. 570 of 2015
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAJESH RAI K
ORAL ORDER
In this revision petition, the petitioner has assailed the
judgment and order dated 16.03.2015 passed by the IV
Additional District and Sessions Judge, D.K., Mangaluru
(hereinafter referred to as the 'First Appellate Court') in
Crl.A.No.168/2014, whereby the First Appellate Court had
dismissed the appeal filed by the petitioner and confirmed the
judgment of conviction and order of sentence passed by JMFC
(IV Court), Mangaluru (for short 'the trial Court') in
C.C.No.148/2014 dated 28.06.2014.
2. The trial Court convicted the petitioner/accused for
the offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as the 'NI Act')
and sentenced her to pay a fine of Rs.1,00,000/- to the
complainant/respondent and in default of payment of fine,
directed her to undergo simple imprisonment for a period of
two years.
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3. Parties are referred to as per ranking before the
trial Court.
4. The facts apposite for consideration in this revision
petition as born out from the pleadings are as under:
The complainant and the accused are working as driving
instructors and they know each other. The accused had
borrowed a sum of Rs.1,00,000/- from the complainant on
various dates. The accused had borrowed hand loans from the
complainant on earlier dates also. However, she had repaid the
same. As far as the above amount of Rs.1,00,000/- is
concerned, in order to repay the same to the complainant, she
had issued three cheques bearing No.010345 for Rs.87,000/-
dated 25.05.2011, cheque bearing No.010358 for Rs.3,200/-
dated 01.08.2011 both drawn on Union Bank of India and
cheque bearing No.252749 for Rs.6,500/- dated 19.09.2011
drawn on Gokarnanatha Co-operative Bank, Mangaluru. When
the complainant presented these cheques for encashment, the
said cheques came to be dishonoured for the reason 'funds
insufficient'. Hence, the complainant got issued legal notice
dated 15.12.2011 to the accused for repayment of the amount
dishonored in the cheques. Though the said notice was served
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to the accused on 19.12.2011, however, the accused failed to
pay the amount. Hence, the complainant filed the private
complaint under Section 200 of Cr.P.C. against the
petitioner/accused for the offence punishable under Section 138
of the NI Act.
5. Before the trial Court, the complainant got
examined herself as PW.1 and got marked 9 documents as
Ex.P1 to Ex.P9. Nevertheless, the accused also examined
herself as DW.1 and got marked 23 documents as Ex.D1 to
Ex.D23.
6. After assessment of the oral and documentary
evidence on record, the learned Magistrate convicted the
accused and sentenced her as stated supra.
7. Aggrieved by the said judgment of conviction and
order of sentence, the accused approached the IV Additional
District and Sessions Judge, D.K., Mangaluru in
Crl.A.No.168/2014. After re-appreciation of the entire evidence
on record, the Sessions Judge dismissed the appeal filed by the
petitioner/accused and confirmed the judgment passed by the
trial Court. Challenge to the same is lis before this Court.
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8. I have heard Sri Sharath P.H., learned counsel for
Sri Sachin B.S, learned counsel for the petitioner/accused so
also Sri Ananya Rai, learned counsel for Sri Vishwajith Rai,
learned counsel for the respondent/complainant.
9. It is the primary contention of the learned counsel
for the petitioner that both the Courts below have erred while
passing the impugned judgments by convicting the accused for
the offence punishable under Section 138 of the NI Act.
According to him, the Courts below have failed to appreciate
the defence of the accused that she had not availed of any
hand loan from the complainant. The sister of the complainant
was running a chit fund and the accused was a member of the
same. As such, while she received the chit fund amount, she
had issued cheques i.e. Ex.P1 to Ex.P3 for security purpose.
However, later, the accused has repaid the entire chit fund
amount to the sister of the complainant by depositing the said
amount in the Bank. The counterfoils to that effect are placed
at Ex.D1 to Ex.D20. Later, the sister of the complainant failed
to return the security cheques and the same were misused by
the complainant for illegal gain. According to the learned
counsel, this probable defence of the accused is not properly
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appreciated by the Courts below. He would further contend
that the complainant failed to narrate the exact date when the
loan was borrowed by the accused. Per contra, according to the
complainant, the accused had borrowed the loan amount in the
month of October, 2010 and the cheques in question were
issued in the month of May, 2011 and subsequently. Hence,
there is a doubt arising about the issuance of cheques by the
accused. He also submits that there are corrections in the
cheques in dispute. As such, the case of the complainant is
doubtful. However, both the Courts below have failed to
appreciate the above aspect in a right perspective, which
caused miscarriage of justice. Accordingly, he prays to allow
the revision petition.
10. Per contra, the learned counsel for the respondent
would contend that both the Courts below have passed the
impugned judgments after meticulously examining the evidence
on record. As such, this revision petition is not maintainable
both on facts and law. She would further contend that the
defence of the accused is not a probable one, for the reason
that in the reply notice issued by the accused as per Ex.P9, she
has stated that, the cheques in question were misplaced while
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she was shifting her residence from Ashoknagar to Derebail,
Mangaluru, at six months back and the complainant
fraudulently presented those cheques. Whereas before the trial
Court, the accused stated that the cheques in question were
issued to the sister of the complainant. As such, the defence of
the accused cannot be believable. She would further contend
that the accused failed to explain why she has not obtained the
cheques from the sister of the complainant after repayment of
the entire chit/loan amount and the accused also failed to
inform the said aspect before the police, though she has filed a
complaint against the complainant. In such circumstances, the
trial Court and the First Appellate Court rightly sentenced the
accused. Accordingly, she prays to dismiss the revision
petition.
11. I have carefully perused the entire evidence on
record, so also given my anxious consideration to the
submissions made by both the counsel.
12. On careful perusal of the evidence on record, it
could be seen in the evidence of PW.1, i.e., the complainant,
that the accused had borrowed a sum of Rs.1,00,000/- in the
month of October, 2010. Thereafter, she failed to repay the
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same. Later on based on the repeated request of the
complainant, in the month of May, 2011, the accused had
issued one cheque for Rs.87,000/- and the other two cheques
for Rs.3,200/- and Rs.6,500/- on 01.08.2011 and 19.09.2011
respectively. Thereafter, failed to honour those cheques.
Hence, the complainant got issued a legal notice as per Ex.P7.
The said legal notice was served to the accused and the
accused got issued a reply notice as per Ex.P9. On perusal of
the contents of Ex.P9 in unnumbered paragraph 4 depicts that
"some of the cheque leaves belong to the accused, misplaced
when she shifted her residence from Ashoknagar to Derebail,
Mangaluru, and the complainant presented the same for illegal
gain". This defence of the accused in Ex.P9 totally differs from
the defence raised by the accused before the trial Court.
13. In the cross-examination of the complainant, the
accused suggested that the cheques in question are issued as a
security to the sister of the complainant in respect of the chit
fund transactions. According to the accused, the entire amount
was repaid by her to the sister of the complainant. Inspite of
that without returning the cheques to her, the sister of the
complainant retained the same and presented the same
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through the complainant for illegal gain. The accused also
canvassed the defence that in respect of transactions between
herself and sister of the complainant, a complaint was lodged
before the police at Mangaluru and a panchayath was held to
that effect. However, interestingly, the accused failed to state
why she had failed to take back the cheques from the sister of
the complainant after repayment of the entire amount to her.
The accused even failed to state why she did not disclose to the
police about the illegal retention of the cheques by the sister of
the complainant. Admittedly, there is no complaint lodged by
her before the police to that effect. In such circumstances, the
accused failed to prove both the defence put forwarded by her
in the case on hand.
14. As far as the lending capacity of the complainant of
Rs.1,00,000/- is concerned, the complainant has categorically
stated that she was working as a driving instructor and out of
her earnings she had paid the said amount to the accused. The
avocation and income of the complainant have not been
seriously disputed by the accused. Further, though the accused
has raised a contention that the cheques in question, i.e., Ex.P1
to Ex.P3 are overwritten and there is a correction,
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nevertheless, on perusal of the same, for the said correction,
the accused has put her signature and rectified those
corrections. In such circumstances, the issuance of Ex.P1 to
Ex.P3 by the accused cannot be disbelieved. Hence, on overall
perusal of the entire evidence on record, in my considered
view, the trial Court rightly convicted the accused and the first
Appellate Court also rightly confirmed the said judgment.
15. Learned counsel for the accused alternatively
submitted that the trial Court imposed a maximum sentence of
two years of imprisonment as the default sentence and the
same may be modified by imposing a reasonable sentence.
16. On considering the facts and circumstances of the
case, so also the amount involved in Ex.P1 to Ex.P3, I find force
in the contention of the learned counsel for the petitioner.
Accordingly, I proceed to pass the following:
ORDER
i. The Criminal Revision Petition is allowed in
part.
ii. The Judgment of conviction dated
28.06.2014 passed by the JMFC (IV Court),
Mangaluru in C.C.No.148/2014 which was
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confirmed by the IV
Additional District and Sessions Judge, D.K.,
Mangaluru in Crl.A.No.168/2014 dated
16.03.2015 is modified.
iii. The accused is sentenced to pay a fine of
Rs.1,00,000/- for the offence punishable
under Section 138 of the NI Act, in default
of payment of fine she shall undergo simple
imprisonment for a period of 6 months.
iv. The entire fine amount shall be paid to the
respondent/complainant.
v. The bail bond, if any, executed by the
petitioner shall stand cancelled.
Sd/-
(RAJESH RAI K)
JUDGE
KTY
