Karnataka High Court
Sri Solomon D Paul vs Sri P Ramakrishna on 25 October, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 230 of 2022
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. 230 OF 2022
BETWEEN:
SRI. SOLOMON D'PAUL,
S/O LATE DANIEL,
AGED ABOUT 51 YEARS,
PROPRIETOR OF DMR ENTERPRISES,
R/AT CARMELARAM POST, SARJAPURA ROAD,
KODATHI GRAMA, VARTHUR HOBLI,
BANGALORE - 560 035.
...PETITIONER
(BY SRI. V. CHANDRASHEKAR, ADVOCATE)
AND:
SRI. P. RAMAKRISHNA,
S/O LATE PULLAPPA,
AGED ABOUT 53 YEARS,
R/AT NO. 9/2, KASAVANAHALLI,
SARJAPURA ROAD,
Digitally KODATHI GRAMA, VARTHUR HOBLI,
signed by
MALATESH BANGALORE - 560 042.
KC ...RESPONDENT
Location: (BY SRI. SRIDHAR CHAKRAVARTHI M.V, ADVOCATE)
HIGH
COURT OF THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
KARNATAKA PRAYING TO SET ASIDE THE JUDGMENT DATED 21.10.2021
PASSED BY THE LII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU IN CRL.A.NO.1598/2018, THEREBY SET
ASIDE THE JUDGMENT DATED 18.07.2018 PASSED BY THE XIX
ADDL.C.M.M., BENGALURU IN C.C.NO.4996/2015, BY
ACQUITTING THE ACCUSED IN THE ABOVE CASE.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 230 of 2022
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.V.Chandrashekar, learned counsel for the
revision petitioner and Sri.Sridhar Chakravarthi M. V.,
learned counsel for the respondent.
2. The present revision petition is filed by the
accused/revision petitioner challenging the order of
conviction and sentence passed in CC No.4996/2015 dated
18.07.2018 on the file of XIX ACMM, Bengaluru for the
offence punishable under Section 138 of the Negotiable
Instruments Act which was confirmed in Criminal Appeal
No.1598/2018 dated 21.10.2021 on the file of LII Addl.
City Civil and Sessions Judge, Bengaluru (CCH-53)
3. Brief facts of the case which are utmost
necessary for disposal of the revision petition are as
under:
3.1. A complaint came to be filed under Section 200
of Cr.P.C. with the jurisdictional Magistrate in PCR
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No.57/2014 alleging the commission of offence punishable
under Section 138 of the Negotiable Instruments Act.
3.2. Averments of the complaint would go to show
that in respect of repayment of the loan obtained by the
accused, accused passed on a cheque bearing No.727218
dated 02.12.2013 drawn on Chartered Sahakari Bank
Niyamitha, Koramangala Branch, Bengaluru which on
presentation came to be dishonored with an endorsement
'funds insufficient'.
3.3. Statutory notice was issued demanding the
payment covered under the cheque to the accused by the
complainant. Callings of the said notice is not complied
nor there was a reply. Therefore, complaint was filed to
take action against the accused for the commission of
offence punishable under Section 138 of the Negotiable
Instruments Act.
4. The learned Trial Magistrate after completing
necessary formalities, took cognizance of the aforesaid
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offences and summoned the accused. Accused entered
appearance. Thereafter, plea was recorded and accused
pleaded not guilty. Therefore, the trial was held.
5. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and relied on
fourteen documents which were exhibited and marked as
Exs.P.1 to Ex.P.14 comprising of cheque, signature of the
accused, bank endorsement, copy of the legal notice,
postal receipt, letter to post master, settled reply, receipt,
I.T. returns, application under Section 65(b) and bank
statements.
6. P.W.1 was cross-examined at length by the
accused questioning the lending capacity, as also about
the defence of the accused that accused had a loan
transaction of Rs.1,00,000/- for the purpose of meeting
the expenses of his brother-in-law which was repaid and in
that connection, Ex.P.1 was issued in the year 2012 which
has been misused by the complainant and filed the false
case has been denied by P.W.1. Bu, no useful material is
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also elicited in such cross-examination so as to disbelieve
the version of the complainant nor dislodge the
presumption available to the complainant under Section
139 of the Negotiable Instruments Act.
7. Thereafter, the learned Trial Magistrate
recorded the accused statement as is contemplated under
Section 313 of Cr.P.C. wherein, accused has denied all the
incriminatory materials.
8. Subsequent there to, in order to rebut the
presumption available to the complainant, accused
stepped into the witness box and got examined himself as
D.W.1.
9. In the cross-examination of D.W.1, it is elicited
that complainant is known to the accused for last fifteen
years and he had obtained loan from the complainant in a
sum of Rs.1,00,000/- on 14.10.2012. He has answered
that he did not reply the legal notice. However, he admits
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that address shown in the legal notice and the postal
acknowledgement is that of his address.
10. He has also answered that the cheque has been
filled in sum of Rs.10,00,000/- as against loan of
Rs.1,00,000/-. He has further answered that he cannot
say for what purpose and in which transaction, Ex.P.1
came to be issued.
11. He admits that he has not called the
complainant after receiving the summons in the present
case nor sent any e-mail. He also admits that after
repayment of the alleged sum of Rs.1,00,000/-, he did not
demand return of the cheque either personally or through
e-mail. However, he has answered that he orally
demanded return of cheque. He admits that he has no
document to show that he has repaid sum of
Rs.1,00,000/- loan obtained by him.
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12. He further admits that he has not lodged any
police complaint against the alleged misuse of the cheque
nor got issued any legal notice through his Advocate.
13. On conclusion of recording of evidence of the
parties, learned Trial Magistrate heard the arguments of
the parties in detail and taking note of the fact that Ex.P.1
i.e., cheque, belongs to the accused and signature found
there in is that of the accused, believed the statement
made by the complainant on oath that he lent sum of
Rs.10,00,000/- for purchase of lorry and raised
presumption as is contemplated under Section 139 of the
Negotiable Instruments Act in favour of the complainant.
14. No doubt, it is a rebuttable presumption.
Learned Trial Magistrate recorded a categorical finding that
the oral evidence placed on record by the accused was not
sufficient to rebut the said presumption and therefore,
convicted the accused for the offence punishable under
Section 138 of the Negotiable Instruments Act and
imposed fine in a sum of Rs.20,00,000/- out of which sum
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of Rs.19,90,000/- was ordered to be paid as compensation
to the complainant and balance sum of Rs.10,000/- to be
paid towards defraying expenses of the State.
15. Being aggrieved by the said order of conviction
and sentence passed by the learned Trial Magistrate, the
accused preferred an appeal before the First Appellate
Court in Criminal Appeal No.1598/2018.
16. Learned Judge in the First Appellate Court after
securing the records, heard the arguments of the parties
in detail and dismissed the appeal of the accused vide
judgment dated 21.10.2021.
17. Being further aggrieved by the same, accused is
before this Court, in this revision on following grounds:
The impugned judgement passed by the court
below is erroneous against the law and facts and
circumstances of the case, Hence same is liable to
be set aside.
It is submitted that the appellate court has gravely
erred in upholding the judgement of conviction
passed by the trial court against the
accused/petitioner for an offence under Section
138 of the N.I Act, by imposing fine of
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Rs.20,00,000/- ( Rupees Twenty Lakhs), in default
he shall undergo simple imprisonment for 3
months.
It is further submitted that the court below has
utterly failed in appreciation of evidence and
materials placed before them also failed in
appreciating the defense evidence.
The appellate court has erred in dismissing the
appeal even though there is no legally enforceable
debt and there is no transaction of whatsoever in
nature between the appellant and respondent as
alleged in the complaint.
The court below wrongly came to the conclusion
without going to the very root of the case on the
presumption & assumption basis to fix the liability
on the petitioner against the natural justice.
It is further submitted that, the appellate court has
acted illegally and with material irregularity in
passing the impugned judgement though the
respondent/complainant has failed to establish that
on which date he has given Rs. 10,00,000/-
(Rupees Ten Lakhs) to accused/petitioner to these
aspects there is no whisper either in the legal
notice i.e., EX.P3 or in complaint or in his
evidence.
It is further submitted that the appellate court
failed to observe that the P.WI in his cross-
examination utterly failed to mention the exact
date, time and place, the alleged loan amount of
Rs. 10,00,000/- paid to the petitioner/ accused.
It is further submitted that the respondent has not
produced any evidence to show that the
respondent herein has paid the huge amount of
Rs.10,00,000/- as a hand loan to the appellant on
the date of alleged loan transaction and also
without obtaining any documents or security for
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discharge of loan amount from the petitioner
herein and the complainant has not produced any
documentary evidence to show that there was
agreement between the petitioner and respondent
to the alleged loan transaction.
It is further submitted that that the appellate court
failed to note that the respondent has stated in his
cross-examination that the alleged amount of
Rs.10,00,000/- paid in cash to accused. But, the
P.W1 failed to produce any witness to the alleged
transaction and further P.W1 has clearly stated in
his cross- examination that there is no witnesses
present at the time of paying the alleged huge
amount of Rs. 10,00,000/- to the
accused/petitioner, this itself shows that the
respondent has not paid any amount to the
accused/petitioner.
It is further submitted that the apellate court failed
to observed that the P.W.1 in his cross-
examination has clearly admitted thay he generally
do all transaction cheque only, except the alleged
loan amount of Rs.10,00,000/- claiming to be paid
in cash to the accused.
The petitioner further submits that, the learned
court below failed observe that while filing of the
complaint, the respondent/complainant failed to
mention when the legal notice was served on the
accused and further the respondent failed to
furnish cause of action for the filing of the
complaint against the accused/petitioner in his
complaint.
The petitioner further submits that the court below
failed to observe that the P.WI in cross-
examination clearly stated that he does not know
that who has written the alleged cheque and also
there is a 2 different pen used to write the alleged
cheque. The learned magistrate failed to observe
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that the contradicting statement with regard to
issue of cheque
The petitioner further submits that the court below
has given much importance to the stray sentence
in the cross-examination of D.W1, and the trial
court observed at Page No.13 of last para that
"More over accused himself could not say for which
transaction the cheque Ex.P-1 was given to
complainant" based on this trial court convicted
the accused. Which has resulted in grave injustice
to the appellant which led to in conviction.
The appellant further submits that the trial court
has not considered the contention of the
accused/petitioner that the accused has given the
alleged cheque as a security for the hand loan of
Rs.100,000/- received by the accused on 14-01-
2012 and the same was repaid in month of May
2013 and the respondent P.W1 clearly admitted in
his cross-examination. But, the court below has
failed to appreciate the contention/rebuttal of the
appellant/ accused which resulted in grave
injustice to accused.
The respondent has not made out any prima-facie
case against the petitioner & the complainant has
not proved his case beyond any doubt, he has filed
the alleged complaint with ulterior motive in order
to harass the appellant for wrongful gain. The
appellant has not issued alleged cheque to the
respondent for the discharge of the alleged loan
transaction.
The first appellate court did not appreciate and
correctly viewed the citation produced by the
petitioner.
The first appellate court even though at para-26 of
its judgement referring to the supreme court
judgement in Krishna Janardhan Bhat case that the
advance taken by way of loan of more than
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Rs.20,000/- was only to be made by way of
account payee cheque, inspite of this decision the
first appellate court has wrongly taken a view that
it is on the person who has taken the loan but the
burden of proving the case is on the person who
has advance the loan amount and he has to
establish his financial capacity, this aspect has
been ignored by the first appellate court, which
has resulted in the dismissal of the appeal.
The first appellate court also wrongly analysed sec.
269 of Income Tax act that the burden is on the
another person who has received the amount.
Even though Krishna Janardhan Bhat case is very
clear that any loan more than Rs.20,000/- has to
be made only by way of an account payee cheque.
Inspite of this the first appellate court has wrongly
viewed and which resulted in dismissal of the
above appeal.
The first appellate court at para-39 has clearly
observed that P.WI in his cross-examination has
stated that he is doing agriculture and real estate
business and he is having 10,00,000 to
15,00,000/- income and he is also income tax
assesse but as per Ex.P7 to 10, which does not
discloses or no entry has been found in this regard
of payment of loan given to the petitioner and
there is no entries in this regard thus the first
appellate court even though there is no entry, the
first appellate court has taken a wrong view that
the petitioner had received 10,00,000/- from the
complainant, this wrongly viewed aspect has
resulted in dismissal of the appeal.
The trial court also held in coming to conclusion
that at page 35 of its judgement that during the
course of cross-examination P.WI was suggested
that he has no financial capacity to lend cash of
Rs. 10,00,000/- and he had not given loan of the
said amount to the accused and the said
suggestion was denied by the complainant. Mere
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denial of the suggestion does not discharge the
burden of the complainant, this crucial aspect has
been oversighted and which led to dismissal of the
above appeal.
The petitioner submit that even though both the
court below failed appreciate that there was no
financial capacity to the complainant and Ex.P7 to
10 there is entries found and no returns has been
filed in respect of the loan amount of Rs.
10,00,000/- even though the burden of proof and
discharge of the liability both the erred in dismissal
of the appeal and imposing exorbitant fine amount
which is arbitrary.
The petitioner submits that he did not commit any
offence under Sec. 138 of N.I act. The learned
magistrate intentionally has not considered the
citation produced by the appellant/accused in
support of the appellant case.
The petitioner submits that the impugned
judgement is illegal, improper and incorrect and
has resulted in miscarriage of justice and the
sentence passed by the court below is too harsh
and severe.
18. Sri.V.Chandrashekar, learned counsel for the
revision petitioner, reiterating the grounds urged in the
revision petition, vehemently contended that accused has
admitted the financial transaction he had with the
complainant in the year 2012 in a sum of Rs.1,00,000/-
and he had repaid the same.
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19. He further contended that at the time of taking
Rs.1,00,000/- as loan, accused had given a cheque at
Ex.P.1 in a blank form towards security and even after
repayment of the said amount, complainant failed to
return the cheque which has been misused by him and
filled sum of Rs.10,00,000/- in the said cheque and filed a
false case which has not been properly appreciated by
learned Trial Magistrate and learned Judge in the First
Appellate Court which has resulted in miscarriage of
justice.
20. He also argued that the complainant had no
lending capacity as is contended by him and therefore,
learned Trial Magistrate ought not to have raised the
presumption in favour of the complainant especially when
the income tax returns does not contain that complainant
possessed Rs.10,00,000/- to lend in favour of the accused
and therefore, sought for allowing the revision petition.
21. Alternatively, he also contended that in the
event, this Court, upholding the order of conviction, since
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there is no special reasons forthcoming in the impugned
judgment for imposing double the cheque amount and
sought for reducing the fine amount.
22. Per contra, Sri.Sridhar Chakravarthi M. V.,
learned counsel for the respondent supports the impugned
judgments.
23. He contended that there is a categorical
admission in the cross-examination of the accused that
after engaging the services of an Advocate and appearing
before the learned Trial Magistrate, no positive action has
been taken by the accused for the alleged misuse of the
cheque which exposes hollowness in the contentions urged
on behalf of the accused and sought for dismissal of the
revision petition.
24. Insofar as alternate submission is concerned,
learned counsel for the respondent contended that
admittedly, the transaction is of the year 2013 and taking
note of Section 80 of Negotiable Instruments Act, learned
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Trial Magistrate and learned Judge in the First Appellate
Court were justified in imposing double the cheque
amount as compensation which needs no interference by
this Court, in this revision.
25. In view of the rival contentions of the parties,
this Court perused the material on record meticulously and
following points would arise for consideration:
1. Whether the revision petitioner has made out
that the impugned judgments are suffering from
patent factual error or jurisdictional error
resulting in the impugned judgment has perverse
in nature and thus, calls for interference?
2. Whether sentence is excessive?
3. What order?
REG.POINT NO.1:
26. In the case on hand, cheque at Ex.P.1 and
signature found therein is that of the accused is not in
dispute. Admittedly, it is the contention of the
complainant that accused issued the cheque towards
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repayment of hand loan in a sum of Rs.10,00,000/- which
he has borrowed for purchase of a lorry.
27. According to the accused, he had a transaction
on 14.10.2012 where under, accused has borrowed sum of
Rs.1,00,000/- from the complainant for meeting the
marriage expenses of his brother-in-law and same was
repaid. At the time of taking the loan, he had issued
Ex.P.1 in blank form and same has been misused by the
complainant even after repayment of sum of
Rs.1,00,000/-.
28. To substantiate the said aspect of the matter,
accused has stepped into the witness box and deposed
that there is misuse of the cheque. Except the oral
testimony of the accused, there is no other material
evidence placed on record. Even for establishing
repayment of Rs.1,00,000/-, there is no document on
record. Accused in his cross-examination admitted that he
did not demand the return of cheque in writing or through
e-mail. No prudent person would repay the amount and
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allow the cheques said to have been given as security with
the opposite party without a proper receipt.
29. Further, accused did not establish that the
cheque at Ex.P.1 was received by him from his banker in
the year 2012 and same was lying with the complainant
on and from 14.10.2012 which has been misused by him
subsequently.
30. Further, accused has also admitted in his cross-
examination that even after he engaged the services of an
Advocate, when he appeared before the learned Trial
Magistrate, he did not chose to take any positive action
against the complainant for the alleged misuse of the
cheque either by filing the police complaint or issuing any
legal notice.
31. Thus, only on the self-serving testimony of the
accused, the defence cannot be accepted and at any rate,
the self-serving testimony would not be sufficient enough
to rebut the presumption available to the complainant
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under Section 139 of the Negotiable Instruments Act
especially when the complainant has placed on record
income tax returns and other related documents to
establish his financial capacity.
32. In this regard, this Court, gainfully places
reliance on the principles of law enunciated by the Hon'ble
Apex Court in the case of Rajesh Jain V.s, Ajay Singh
reported in 2023(10) SCC 148. In view of the legal
principles enunciated in the said decision, the learned Trial
Magistrate was justified in raising the presumption
available to the complainant under Section 139 of the
Negotiable Instruments Act and noted that there is no
sufficient rebuttal evidence and rightly convicted the
accused which has been rightly reappreciated by the
learned Judge in the First Appellate Court. Therefore,
point No.1 is answered in negative.
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REG.POINT No.2:
33. Admittedly, the cheque is issued in a sum of
Rs.10,00,000/-. Learned Trial Magistrate or the learned
Judge in the First Appellate Court did not assign any
special reasons for imposing double the cheque amount as
the fine amount. No doubt, the statute provides such a
power for the learned Trial Magistrate but while exercising
such a power, there must be sufficient reasons for
maintaining double the cheque amount as the fine
amount. It is settled principles of law and requires no
emphasis that the reasons are the heart beat of the given
judgment and to support such a decision by the Court,
there must be a proper reasoning forthcoming in the
judgment.
34. Sri.Sridhar Chakravarthi M. V., learned counsel
for the respondent however tried to impress upon the
Court that the transaction is of the year 2013 and
complainant is yet to receive the money from the accused
and interim order granted by this Court is also not
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complied which exposes the conduct the accused and
taking note the interest rate prescribed under Section 80
of the Negotiable Instruments Act, the imposition of
double the cheque amount by the learned Trial Magistrate
confirmed by the learned Judge in the First Appellate Court
needs no interference from this Court that too in the
revisional jurisdiction.
35. However, learned counsel for the revision
petitioner contended that the financial condition of the
accused has resulted in not complying the interim order
for which he should not be penalized by the Court by
imposing double the cheque amount.
36. Taking note of the rival contentions, in the
absence of any special reasons forthcoming on record and
no basis is made in the examination-in-chief of P.W.1 for
imposing double the cheque amount as the fine amount is
not justified is the considered opinion of this Court and if
the fine amount is reduced from Rs.20,00,000/- to
Rs.18,00,000/- and entire sum of Rs.18,00,000/- is
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ordered to be paid as compensation by setting aside the
imposition of Rs.10,000/- as defraying expenses of the
State as lis is privy to the parties and no State machinery
is involved, would meet the ends of justice in the facts and
circumstances of the case. Accordingly, point No.2 is
answered in partly affirmative.
REG.POINT No.3:
37. In view of the findings of this Court on point
Nos.1 and 2 as above, 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, the
compensation amount ordered by the learned
Trial Magistrate confirmed by the First Appellate
Court in a sum of Rs.20,00,000/- is reduced to
sum of Rs.18,00,000/- and balance sum of
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Rs.10,000/- imposed as fine towards the
defraying expenses of the State is hereby set
aside.
iii. Entire fine amount of Rs.18,00,000/- is to be
paid as compensation to the complainant.
iv. Time is granted for the accused to pay the
balance fine amount till 31.12.2024 failing
which the accused shall undergo simple
imprisonment for a period of one year.
v. Office is directed to return the Trial Court
Records with copy of this order forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
KAV
CT: BHK
