M L Shankar vs Sri Lokesh
2024 Latest Caselaw 25442 Kant

Karnataka High Court

M L Shankar vs Sri Lokesh on 25 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                 NC: 2024:KHC:43439
                                             CRL.RP No. 228 of 2020




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                 DATED THIS THE 25TH DAY OF OCTOBER, 2024

                                   BEFORE
                  THE HON'BLE MR JUSTICE V SRISHANANDA
                CRIMINAL REVISION PETITION No.228 OF 2020
            BETWEEN:

               M.L. SHANKAR
               S/O. LATE LINGAPPA
               AGED ABOUT 55 YEARS
               R/AT. NO.45/46, 4TH MAIN
               ASTALAKSHMI LAYOUT
               J.P. NAGAR, BENGALURU-560 072.
                                                     ...PETITIONER
               (BY SMT. BHANUPRIYA SHETTY, ADVOCATE FOR
                   SRI PRASANNA D.P., ADVOCATE)
            AND:

               SRI LOKESH, S/O. RAVI
               AGED ABOUT 34 YEARS
               R/AT 25/5
               MUNISANJEEVAPPA BUILDING
               KANAKAPURA MAIN ROAD
Digitally      MUNISANJEEVAPPA LAYOUT
signed by      JARAGANAHALLI, BENGALURU-560 072.
MALATESH
KC                                                   ...RESPONDENT
Location:      (BY SRI B.N. ANJAN KUMAR, ADVOCATE FOR
HIGH               SRI SHASHIKUMAR R. GOWDA, ADVOCATE)
COURT OF
KARNATAKA
                 THIS CRIMINAL REVISION PETITION IS FILED UNDER
            SECTION 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE
            JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE
            LXVII ADDITIONAL CITY CIVIL JUDGE AND SESSIONS JUDGE,
            BENGALURU CITY IN CRL.A.No.297/2017, DATED 15.10.2019
            AND JUDGMENT IN C.C.No.30726/2014, DATED 01.02.2017 ON
            THE FILE OF THE XVI ADDITIONAL CHIEF METROPOLITAN
            MAGISTRATE, AT BENGALURU CITY AND ACQUIT THE
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                                               NC: 2024:KHC:43439
                                          CRL.RP No. 228 of 2020




PETITIONER FOR THE CHARGES UNDER SECTION 138 OF THE
N.I ACT.

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


                         ORAL ORDER

Heard Smt.Bhanupriya Shetty, advocate for Sri Prasanna

D.P., learned counsel for the revision petitioner and Sri

B.N.Anjan Kumar, advocate for Sri Shashikumar R. Gowda,

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, 1881, in C.C.No. 30726/2014 dated

01.02.2017 on the file of the XVI Add. Chief Metropolitan

Magistrate, Bengaluru City, confirmed in Crl.A.No.297/2017

dated 15.10.2019 on the file of the LXVII Addl. City Civil and

Sessions Judge, Bengaluru, has preferred the present revision

petition.

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

disposal of the present revision petition are as under:

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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 is running a business in the name and style "M/s

Bhuvaneshwari Dyeing Works" at Bengaluru and in the month

of September 2013, he approached the complainant for

financial assistance in a sum of Rs.4,00,000/- for his business

related purposes and shifting his office.

4. Taking note of the precarious circumstances of the

accused, complainant lent a sum of Rs.4,00,000/- in the month

of September 2013. In this regard accused executed a loan

agreement and issued a post dated cheque bearing No.007828

dated 30.08.2014 towards repayment of the amount so

borrowed.

5. The said cheque, on presentation, came to be dishonoued

with an endorsement 'funds insufficient'. Therefore, necessary

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

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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 his case, complainant got examined

himself as P.W.1 and placed on record twelve documents

which were exhibited and marked as Exs.P.1 to P.12,

comprising of attested copy of the acknowledgment of the

J.P.Nagar Police, complaint, statement, dishonoured cheque,

bank memo, legal notice, postal receipt, courier receipt, postal

acknowledgment, loan agreement, original complaint and

statement of accounts.

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

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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 did not palce any rebuttal evidence nor any

written statement as is contemplated under Section 313(4) of

the Code of Criminal Procedure.

11. 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.4,25,000/- as fine, out of which Rs.4,15,000/- was ordered

to be paid to the complainant and Rs.10,000/- was ordered to

be paid as defraying expenses of the State.

12. Being aggrieved by the same, accused preferred an

appeal before the District Court in Crl.A.No.297/2017.

13. 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

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accused and confirmed the judgment passed by the learned

Trial Judge.

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

this Court in this revision petition challenging the validity of the

order of conviction.

15. Learned counsel for the revision petitioner

Smt.Bhanupriya Shetty, reiterating the grounds urged in the

revision petition, vehemtnly contended that actually the

accused has borrowed only Rs.1,00,000/- and executed the

document and gave the cheque and same has been misused by

the complainant and in that regard accused has already filed a

complaint before the jurisdictional police. But police have not

taken any action and therefore, accused is not liable to pay the

fine as ordered by the learned Trial Judge and sought for

allowing the revision petition.

16. Per contra, Sri Anjan Kumar, learned counsel for the

respondent supports the impugned judgment.

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

perused the material on record, meticulously.

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

points would arise for consideration:

(i) Whether the revision petitioner/accused makes out a case that the impugned judgments suffer from patent factual error or error of jurisdiction whereby the impugned judgments can be termed as perverse in nature and needs interference by this Court in this revision petition?

(ii) Whether the sentence is excessive.

(iii) What Order?

19. REGARDING POINT No.1: In the case on hand, in order

to prove the transaction of the complainant with the accused,

not only Ex.P.4- dishonored cheque is placed on record, but

also the loan agreement is also filed. Admittedly, signature of

the accused is found on the loan agreement and the cheque

which is not in dispute.

20. According to the accused, those documents were

executed by the accused in blank when he borrowed

Rs.1,00,000/- whereas, the same has been misused by the

complainant by filling Rs.4,00,000/- as amount due from

accused. Same has resulted in miscarriage of justice and

therefore, sought to allow the revision petition.

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21. To establish the said aspect of the matter, except

suggestions made to P.W.1 in the cross-examination no other

material is placed on record. Accused for the reasons best

known to him, did not step into the witness box and depose

about said aspect of the matter.

22. When once the cheque is issued by accused and the

signature found therein is that of the accused, by relying on the

loan agreement, complainant has discharged the initial burden

so as to raise the presumption as is found in Section 139 of the

Negotiable Instruments Act, 1881.

23. No doubt, the said presumption is a rebuttable

presumption.

24. In order to rebut the said presumption, the accused did

not place any material evidence on record nor material elicited

in the cross-examination is sufficient enough to rebut the

presumption.

25. Under such circumstances, recording the order of

conviction by the learned Trial Judge confirmed by the learned

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Judge in the First Appellate Court needs no interference.

Accordingly, point No.1 is answered in the negative.

26. REGARDING POINT No.2: As against the cheque amount

of Rs.4,00,000/-, learned Trial Judge has imposed fine of

Rs.4,25,000/- out of which Rs.4,15,000/- is ordered to be paid

as compensation to the complainant and balance sum of

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

27. Since the lis is privy to the parties and no State

machinery is involved, imposition of Rs.10,000/- towards

defraying expenses of the State cannot be countenanced in law

and therefore, to that extent, the sentence needs modification.

Accordingly, point No.2 is answered partly in the affirmative.

28. REGARDING POINT No.3: In view of the foregoing

discussion and findings recorded 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

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NC: 2024:KHC:43439

Section 138 of the Negotiable Instruments Act, 1881, imposition of fine amount of Rs.4,25,000/- is reduced to Rs.4,15,000/-. Entire amount of Rs.4,15,000/- 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 one year.

(iv) Rs.10,000/- ordered by the learned Trial Judge towards defraying expenses of the State is hereby set-aside.

(v) Office is directed to return the Trial Court Records along with copy of this judgment, forthwith.

Sd/-

(V SRISHANANDA) JUDGE

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