Karnataka High Court

Smt P R Yashodamma vs Smt M K Shashikala on 22 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                 NC: 2024:KHC:42534
                                            CRL.RP No. 1386 of 2021




              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.1386 OF 2021
            BETWEEN:

               SMT. P.R. YASHODAMMA
               W/O. SRI DORESWAMY
               AGED ABOUT 46 YEARS
               C/O. SRI H.N. RAJU
               R/AT D.NO.34, GROUND FLOOR
               12TH MAIN ROAD
               RAGHVENDRA NAGARA (HARSHITHA NAGAR)
               SRINAGAR,BENGALURU-560 050.
                                                    ...PETITIONER
               (BY SRI SHIVAYOGESH SHIVAYOGIMATH, ADVOCATE)

            AND:

               SMT. M.K. SHASHIKALA
               W/O. LATE SRI H.S. PRAKASH
Digitally      AGED ABOUT 44 YEARS
signed by      R/O D.NO.215/A, IST CROSS
MALATESH       MARIGOWDA LAYOUT
KC
               MANDYA-571 401.
Location:
HIGH                                                 ...RESPONDENT
COURT OF       (BY SRI M.Y. SREENIVASAN, ADVOCATE)
KARNATAKA
                                    ***
                 THIS CRIMINAL REVISION PETITION IS FILED UNDER
            SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE HE
            ORDER/JUDGMENT DATED 29.01.2021 PASSED BY THE
            LEARNED II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
            MANDYA IN CRL.A.NO.14/2020 AND THE ORDER DATED
            30.12.2019 PASSED BY THE LEARNED PRINCIPAL CIVIL JUDGE
            AND JMFC, MANDYA IN C.C.NO.331/2017.
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                                               NC: 2024:KHC:42534
                                          CRL.RP No. 1386 of 2021




    THIS CRIMINAL REVISION PETITION, COMING ON FOR
ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                         ORAL ORDER

Heard Sri Shivayogesh Shivayogimath, learned counsel

for the revision petitioner and Sri M.Y.Sreenivasan, learned

counsel for the respondent.

2. Accused who suffered an order of conviction for the

offence punishable under Section 138 of the Negotiable

Instruments Act in C.C.No.331/2017 dated 30.12.2019 on the

file of the Prl. Civil Judge and JMFC, Mandya, confirmed in

Crl.A.No.14/2020 dated 29.01.2021 on the file of the II Addl.

Sessions Judge, Mandya, has preferred this revision petition.

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

disposal of the present petition are as under:

A complaint came to be lodged under Section 200 of the

Code of Criminal Procedure by the complainant seeking action

against the accused for the offence punishable under Section

138 of the Negotiable Instruments Act, 1881, contending that

accused being her close friend, borrowed a sum of

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Rs.9,00,000/- in the first week of April 2016 with a promise to

repay the same within a short time.

4. The amount was borrowed by the accused for meeting

the educational expenses of her children. When there was no

repayment, complainant demanded the amount and towards

repayment of the said amount, accused issued a cheque

bearing No.0007909 drawn on Lokpavani Mahila Sahakari Bank

Niyamitha, Mandya, which, on presentation came to be

dishonoured with an endorsement 'funds insufficient'.

5. Notice was issued to the accused intimating the fact of

dishonor of cheque and demanding the amount covered under

the cheque. There was no reply from the accused to the

callings of the notice nor was there any compliance, resulting in

the complainant seeking action against the accused.

6. Learned Trial Judge, after complying with the necessary

formalities, summoned the accused and recorded the plea.

Accused pleaded not guilty and therefore, trial was held.

7. In order to prove her case, complainant got examined

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

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were exhibited and marked as Exs.P.1 to P.6, comprising of

dishonoured cheque, challan, endorsement, legal notice, postal

acknowledgement and envelop cover.

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

positive material so as to disbelieve the version of P.W.1 nor to

dislodge the presumption available to the complainant under

Section 139 of the Negotiable Instruments Act, 1881.

9. Thereafter, accused statement as is contemplated under

Section 313 of the Code of Criminal Procedure was recorded by

the learned Trial Judge wherein, accused has denied all the

incriminatory materials.

10. In order to rebut the presumption available to the

complainant under Section 139 of the Negotiable Instruments

Act, 1881, accused stepped into the witness box and examined

herself as D.W.1 and placed on record ten documentary

evidence, exhibited and marked as Exs.D.1 to D.10, comprising

of B.E. degree certificate, identity card, ration card, receipts

and bank pass book.

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11. In the cross-examination of accused/D.W.1, there is a

clear admission that complainant is her close friend and the

complainant had allowed the accused to stay in her house free

of rent for two years and she is aware of the family affairs of

the complainant. She also admits that the cheque is issued by

her and the signature found on the cheque is her signature.

12. Taking note of these material evidence on record, learned

Trial Judge after hearing the arguments of both sides, convicted

the accused for the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881, and awarded a sum of

Rs.9,60,000/- as fine, out of which Rs.9,58,000/- was ordered

to be paid to the complainant and Rs.2,000/- was ordered to be

paid as defraying expenses of the State.

13. Being aggrieved by the same, accused preferred an

appeal before the District Court in Crl.A.No.14/2020.

14. Learned Judge in the First Appellate Court after securing

the records, heard the parties in detail and on re-appreciation

of the material evidence on record, dismissed the appeal of the

accused.

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

this Court in this revision petition challenging the validity of the

order of conviction.

16. Learned counsel for the revision petitioner Sri

Shivayogesh Shivayogimath, reiterating the grounds urged in

the revision petition, contended that both the Courts have not

properly appreciated the material evidence on record,

especially the lending capacity of the complainant and

therefore, sought for admitting the revision petition for further

consideration.

17. Per contra, Sri Sreenivasan, learned counsel for the

respondent supports the impugned judgment.

18. Having heard the arguments of both sides, this Court

perused the material on record, meticulously.

19. On such perusal of the material on record, it is crystal

clear that the accused in her cross-examination has clearly

admitted that Ex.P.1-cheque belongs to her and signature

found on Ex.P.1 is her signature. Accused also admits that the

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complainant had accommodated her to stay in her house for

two years free of rent and she knows the family affairs of the

complainant through and through.

20. Under such circumstances, when the complainant has lent

the money for the purpose of meeting the educational expenses

of the children of the accused, initial burden has been

discharged by the complainant by invoking presumption as is

available under Section 139 of the Negotiable Instruments Act,

1881.

21. The material evidence placed on record by the accused is

not sufficient enough to rebut the presumption available to the

complainant. Therefore, the learned Trial Judge was justified in

convicting the accused for the offence punishable under Section

138 of the Negotiable Instruments Act, 1881 and imposing fine

of Rs.9,60,000/-.

22. However, Rs.2,000/- ordered by the learned Trial Judge

confirmed by the learned Judge in the First Appellate Court to

be paid as defraying expenses of the State needs interference

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by this Court as the lis is privy to the parties and no State

machinery is involved.

23. Accordingly, 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, imposition of fine amount of Rs.9,60,000/- is reduced to Rs.9,58,000/-. Entire amount of Rs.9,58,000/- is ordered to be paid as compensation to the complainant.

(iii) Time is granted to the accused to pay balance of fine amount till 30th November 2024, failing which the accused shall undergo simple imprisonment for a period of six months as ordered by the learned Trial Judge.