Karnataka High Court

Sri.Ashok Kumar Setty vs Sri.G.Parameshwarappa on 22 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                           NC: 2024:KHC:42483
                                                      CRL.RP No. 391 of 2016




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 22ND DAY OF OCTOBER, 2024

                                            BEFORE
                            THE HON'BLE MR JUSTICE V SRISHANANDA
                          CRIMINAL REVISION PETITION NO.391 OF 2016
                   BETWEEN:

                      SRI. ASHOK KUMAR SETTY
                      S/O. T. JAGANATHA SHETTY
                      AGED ABOUT 53 YEARS
                      R/AT NO.T.1102, D BLOCK
                      10TH FLOOR, PLATINUM CITY
                      PEENYA (GORGUNTEPALYA)
                      BENGALURU-560 058.
                                                                 ...PETITIONER
                      (BY SRI H. RAMACHANDRA, ADVOCATE)

                   AND:

                      SRI G. PARAMESHWARAPPA
                      S/O. LATE GANGANNA
                      AGED ABOUT 53 YEARS
                      R/AT NO.18, 4TH CROSS
                      KURUBARAHALLI
                      BENGALURU-560 086.
Digitally signed
by MALATESH                                                     ...RESPONDENT
KC
Location: HIGH        (BY SMT. ARCHANA K. M., AMICUS CURIAE)
COURT OF
KARNATAKA
                         THIS CRIMINAL REVISION PETITION IS FILED UNDER
                   SECTION 397 READ WITH 401 CR.P.C PRAYING TO 1) SET ASIDE
                   THE IMPUGNED JUDGMENT PASSED BY THE XL A.C.M.M.,
                   BANGALORE IN C.C.NO.13043/2013 DATED 30.01.2015. 2) SET
                   ASIDE THE IMPUGNED JUDGMENT PASSED BY THE LX ADDL. CITY
                   CIVIL   AND    S.J., BANGALORE     DATED   03.12.2015 IN
                   CRL.A.NO.200/2015 AND 3) THE PETITIONER MAY KINDLY BE
                   ACQUITTED FOR THE OFFENCE P/U/S 138 OF N.I. ACT AND
                   SENTENCE OF FINE AMOUNT IN DEPOSIT MAY KINDLY BE ORDERED
                   TO BE REFUNDED BY SET ASIDE BOTH THE IMPUGNED JUDGMENTS.

                        THIS CRIMINAL REVISION PETITION, COMING ON       FOR
                   HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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                                             NC: 2024:KHC:42483
                                         CRL.RP No. 391 of 2016




CORAM:      HON'BLE MR JUSTICE V SRISHANANDA


                          ORAL ORDER

Heard Sri. H. Ramachandra, learned counsel for the

revision petitioner, and Smt. Archana K.M., learned Amicus

Curiae for the complainant.

2. Accused who suffered an order of conviction in

Criminal Case No.13043 of 2013 confirmed in Criminal Appeal

No.200 of 2015 for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881 (for short, 'Act') and

ordered to pay fine amount of Rs.8.00 lakhs as against the

cheque amount of Rs.4.00 lakhs and default sentence of six

months simple imprisonment, has preferred this revision

petition.

3. Facts in brief which are utmost necessary for disposal

of the revision petition are as under:

Complainant lodged a complaint under Section 200

Cr.P.C. with the jurisdictional magistrate contending that the

accused approached the complainant for a hand loan in a sum

of Rs.4.00 lakhs in the month of November 2012 for the

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purpose of his business with a promise to repay the same in a

short period of time and towards repayment, he had issued two

cheques bearing Nos.924776 and 924777 dated 06.03.2013 for

a total amount of Rs.4.00 lakhs drawn on Vijaya Bank, West of

Chord road, Bengaluru-560 086. Those cheques on

presentation, returned with an endorsement 'insufficient funds'

on 08.03.2013. A legal notice was issued to the accused calling

upon to make good the amount covered under the dishonoured

cheques. There was no compliance to the callings of notice and

therefore, the complainant sought action against the accused.

4. On completion of necessary formalities, the learned

trial Magistrate took cognizance and summoned the accused.

The accused appeared before the Court and engaged the

services of an Advocate and plea was recorded. The accused

pleaded not guilty and therefore, the trial was held.

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

complainant got examined himself as PW.1 and placed on

record nine documentary evidence which are marked and

exhibited as Exs.P1 to P9 comprising of dishonoured cheques,

bank endorsement, copy of the legal notice and postal

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acknowledgment. Detailed cross examination of PW.1 did not

yield any positive material so as to falsify the case of the

complainant nor dislodge the presumption available to the

complainant under Section 139 of N.I. Act. Except a

typographical error in mentioning the date as 02.12.2012, no

other material is found in the cross examination of PW.1.

Thereafter, the learned trial Magistrate recorded the accused's

statement as is contemplated under Section 313 of the Code of

Criminal Procedure, 1973, wherein the accused has denied all

the incriminating circumstances.

6. The accused has examined himself as DW1 in order to

rebut the presumption available to the complainant and placed

on record three documents which are reply notices and postal

receipts.

7. In the cross examination of DW.1, it has been elicited

that he has not mentioned the name of Chandrashekara Shetty.

He also admits that he did not take steps to contact

Chandrashekara Shetty for the alleged misuse of the cheques.

On conclusion of recording of the evidence, the learned trial

Magistrate heard the parties in detail and convicted the accused

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for the offence punishable under Section 138 of N.I. Act and

imposed fine of Rs.8.00 lakhs, of which, a sum of Rs.7,90,000/-

was ordered to be paid as compensation to the complainant

and a balance sum of Rs.10,000/- towards defraying expenses

of the State.

8. Being aggrieved by the same, the accused preferred an

appeal before the District Court in Crl.A.No.200/2015.

9. Learned Judge of the first appellate Court after

securing the records, heard the parties in detail and by

judgment dated 03.12.2015 dismissed the appeal of the

accused. Being further aggrieved by the same, the accused

before this Court has preferred this appeal.

10. Sri. H. Ramachandra, learned counsel for the revision

petitioner reiterating the grounds urged in the revision petition,

vehemently contended that the material on record is not

properly appreciated by both the Courts and contents of legal

notices is totally ignored by the learned trial Magistrate while

convicting the accused and written arguments placed on record

is not even considered by the learned Judge in the first

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appellate Court while upholding the order of conviction and

sought for allowing the revision petition.

11. Per-contra, Smt. Archana K.M., learned Amicus

representing the complainant, supports the impugned

judgment.

12. Having heard 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 establishes that the impugned judgment is suffering from patent factual or legal error resulting in the impugned judgment being perverse so as to call for interference by this Court?

2. Whether the sentence is excessive?

3. What order?

Reg.Point No.1 and 2:

13. In the case on hand, Ex-P1 and P2, which are the

dishonoured cheques are belonging to the complainant and

signature found therein is that of the accused. So far as

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issuance of the cheques are concerned, the accused has taken

a contention that it was given to one Chandrashekara Shetty.

No material evidence is forthcoming from the records to show

that those cheques were infact given to Chandrashekara Shetty

and Chandrashekara Shetty and the complainant have colluded

together in filing a false complaint against the accused.

14. Moreover, the accused had the services of an

Advocate soon after the receipt of the legal notice and there is

no mention of name of Chandrashekara Shetty in the reply

notice marked at Ex-D1. Therefore, it is an after thought as is

rightly held by both the Courts. Further, if there is misuse of

Ex-P1 and P2-cheques, some positive action should have been

taken by the accused, as no normal prudent person could keep

quiet if there is misuse of cheques of Rs.4.00 lakhs.

15. In the absence of any positive action that has been

taken by the accused, the self-serving testimony of the accused

who has been examined as DW.1 that the cheques have been

misused remains uncorroborated testimony on record, which

would not be sufficient enough to rebut the presumption

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

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16. In this regard, this Court places reliance on the

principles of law enunciated by the Hon'ble Supreme Court in

the case of Rajesh Jain v. Ajay Singh reported in (2023) 10

SCC 148. Since the issuance of cheques and the signature

found therein is not in dispute and it has been properly

established by the complainant by contending that those

cheques were issued by the accused towards the repayment of

the loan amount and the same are dishonoured with

endorsement 'insufficient funds', initial burden has been

discharged by the complainant so as to raise presumption

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

which stood rebutted, whereby the learned trial magistrate and

first appellate Court were justified in recording an order of

conviction against the accused for the offence punishable under

Section 138 of N.I. Act.

17. In so far as imposition of double the cheque amount

as fine amount is concerned, in the facts and circumstances of

the case, taking note of the fact that the transaction is of the

year 2012 and the amount is not yet paid, imposition of double

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the cheque amount as the fine amount is justified having

regard to Section 80 of N.I. Act.

18. However, imposing sum of Rs.10,000/- as defraying

expenses of the State, interference is called by this Court,

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

machinery involved. Accordingly, to that extent, point No.2 is

to be answered partly in favour of the accused.

19. In view of the forgoing discussion, point No.1 is

answered in the negative and point No.2 partly in the

affirmative.

Reg. Point No.3:-

20. In view of the findings on point Nos.1 and 2, the

following:

ORDER

(i) Criminal revision petition is allowed in part.

(ii) While maintaining the conviction of the

accused for the offence punishable under

Section 138 of the Negotiable Instruments

Act, 1881, award of fine amount imposed by