Karnataka High Court
H C Raghavendra vs Nagesh K Vale on 28 October, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 862 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.862 OF 2021
BETWEEN:
H.C. RAGHAVENDRA
S/O. HALAPPA
AGED ABOUT 30 YEARS
R/O. CHANAPURA VILLAGE
THYAGARTHI POST
SAGAR TALUK 577 401.
PRESENTLY WORKING WITH
K.E. VIJAYAKUMAR
PROPRIETOR
S.V. WOOD WORKS
KOTEPURA(NERALAGI)
HANGAL ROAD, ANAVATTI HOBLI
SORAB TALUK
SHIVAMOGGA DISTRICT.
...PETITIONER
Digitally (BY SRI GURURAJ KULKARNI, ADVOCATE)
signed by
MALATESH AND:
KC
Location:
HIGH NAGESH K. VALE
COURT OF S/O. KERIYAPPA
KARNATAKA AGED ABOUT 45 YEARS
AGRICULTURIST
R/O SOORANAGADDE VILLAGE
KASABA HOBLI
SAGAR TALUK-577 401
SHIVAMOGGA DISTRICT.
...RESPONDENT
(BY SRI BHIMBADHAR M. GOWDAR, ADVOCATE)
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CRL.RP No. 862 of 2021
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE
SENTENCE DATED 30.11.2019 PASSED BY THE ADDITIONAL
CIVIL JUDGE AND JMFC, SAGAR IN C.C.NO.357/2017 AND ETC.
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 Sri Gururaj Kulkarni, learned counsel for the
revision petitioner and Sri Bhimbadhar M. Gowdar, learned
counsel for the respondent.
2. Accused who suffered an order of conviction in
C.C.No.357/2017, on the file of Additional Civil Judge and
JMFC., Sagar, for the offence punishable under Section 138 of
Negotiable Instruments Act and ordered to pay fine of
Rs.1,55,000/-, of which sum of Rs.1,50,000/- was ordered to
pay as compensation to the complainant and balance sum of
Rs.5,000/- as defraying expenses of the State, confirmed in
Crl.A.No.1050/2019, on the file of V Additional District and
Sessions Judge, Shivamogga, is the revision petitioner.
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3. Facts in brief which are utmost necessary for
disposal of the present revision petitioner are as under:
A complaint came to be lodged under Section 200
Cr.P.C., complaining that the accused has committed an
offence punishable under Section 138 of Negotiable
Instruments Act.
4. Complaint averments further reveal that accused
and complainant are acquainted to each other and in that
acquaintance, complainant lent a sum of Rs.1,50,000/- on
10.10.2016 to the accused at his request with a promise to
repay the same within two months.
5. When there was no repayment made, as agreed,
demand was made by the complainant, for which the accused
issued a cheque dated 30.05.2017 in a sum of Rs.1,50,000/-,
drawn on Corporation Bank, which on presentation came to be
dishonored with an endorsement 'Funds Insufficient'.
6. Legal notice was issued to the accused which was
not served on the ground that accused is not residing in the
address and another notice was issued on 06.06.2017. The
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same was served and there was no compliance to the callings
of the notice and therefore, complainant sought for action.
7. After completing necessary formalities, learned Trial
Magistrate summoned the accused, recorded the plea. Accused
pleaded not guilty, therefore trial was held.
8. In order to prove the case of the complainant,
complainant got examined himself as P.W.1 and placed on
record eight documents, which were exhibited and marked as
Exs.P.1 to P.8, comprising of dishonored cheque, bank
endorsement, copy of the legal notice, RPAD receipts, postak
acknowledgement, un-served RPAD cover.
9. Detailed cross-examination of P.W.1 did not yield
any positive result to rebut the case of the complainant or not
to dislodge the presumption available to the complainant under
Section 139 of Negotiable Instruments Act.
10. A specific defence was also taken by the accused
that the signature found in the cheque is not that of the
accused, but the same was denied by the complainant.
11. Thereafter, accused statement as is contemplated
under Section 313 Cr.P.C., was recorded by the learned Trial
Magistrate, wherein the accused denied all the incriminating
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materials adduced against him and he had agreed to examine a
witness on his behalf. But, accused failed to examine himself
or any other witness to rebut the presumption available to the
complainant under Section 139 of Negotiable Instruments Act.
12. Thereafter learned Trial Magistrate heard the
parties in detail and convicted the accused.
13. Being aggrieved by the same, accused preferred an
appeal before the District Court in Crl.A.No.10050/2019.
14. Learned Judge in the First Appellate Court after
securing the records heard the parties in detail and dismissed
the appeal of the accused and confirmed the order of conviction
and sentence passed by the learned Trial Magistrate.
15. Being further aggrieved by the same, accused is
before this Court in this revision petition.
16. Sri Gururaj Kulkarni, learned counsel for the
revision petitioner reiterating the grounds urged in the revision
petition vehemently contended that both the Courts have not
properly appreciated that the signature found in Ex.P.1 is not
that of the accused. Therefore, raising of the statutory
presumption, noting that there was a discharge of initial burden
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by the complainant was thus incorrect and sought for allowing
the revision petition.
17. He further contended that the accused has signed
the accused statement in 'Kannada language' and so also the
surety bond. Therefore, the Trial Court ought not to have
taken into consideration the signature found in Ex.P.1 and the
conviction order could not have been passed. Hence, sought
for allowing the revision petition.
18. Per contra, Sri Bimbadhar M. Goudar, learned
counsel for the respondent supports the impugned judgment.
19. Having heard the parties in detail, this Court
perused the material on record meticulously.
20. On such perusal of the material on record, the
following points would arise for consideration:
1) Whether the revision petitioner has made out patent
factual error in the impugned judgment or error of
jurisdiction so as to hold the same as perverse and
thus there is a scope for interference of the impugned
orders by this Court?
2) Whether the sentence is excessive?
3) What order?
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21. In the case on hand, issuance of Ex.P.1 cheque is
not in dispute. However, with regard to signature in Ex.P.1,
the accused has disputed the same stating that signature found
in cheque leaf is in English, but he signs in Kannada.
22. The vakalath filed before the learned Trial
Magistrate belies such a contention as the accused has signed
in English in the said vakalath.
23. No doubt, the signature found in vakalth and
signature found in the cheque are per se not tallying with each
other which can be identified by a layman.
24. However, that itself is not a ground to reject the
case of the accused inasmuch as the cheque is not dishonored
with an endorsement that the "signature does not tally", but
the cheque is dishonored on the ground of 'Funds Insufficient.
25. It is the banker of accused who has got the
specimen signature of the accused, whereby if the signature
found in Ex.P.1 is not tallying with the specimen signature
retained by his banker, the cheque would have been returned
with an endorsement 'signatures do not tally'.
26. But, in the case on hand, except suggesting to
P.W.1 that signature in Ex.P.1 is not signature of accused, no
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other evidence is placed on record by the accused. Accused did
not get examined his banker to show that signature in Ex.P.1 is
not his signature. Likewise, the accused did not file any
application to send the disputed signatures to the handwriting
expert.
27. Further, the accused did not step into the witness
box at least to depose on oath that the signature found in
Ex.P.1 is not his signature.
28. Under such circumstances, learned Trial Magistrate
raising the presumption in favour of the complainant under
Section 139 of Negotiable Instruments Act do not require any
interference by this Court, in the absence of any contra
evidence placed on record. Accordingly, point No.1 is answered
in the negative.
29. Regarding Point No.2: With regard to the
sentence, the learned Trial Magistrate has imposed sum of
Rs.1,55,000/- as the fine amount as against the cheque
amount of Rs.1,50,000/-, out of which, a sum of Rs.1,50,000/-
was ordered to be paid as compensation to the complainant
and balance sum of Rs.5,000/- towards defraying expenses of
the State.
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30. Since the lis is privy to the parties and no State
machinery is involved, imposing fine of Rs.5,000/- towards the
defraying expenses of State requires interference by this Court
in this revision.
31. Accordingly, point No.2 is answered in the
Affirmative.
32. Regarding point No.3: In view of the findings on
point Nos.1 and 2, following:
ORDER
(i) Revision petition is allowed in part.
(ii) While maintaining the conviction of the accused
for the offence punishable under Section 138 of
Negotiable Instruments Act, fine awarded by the
learned Trial Magistrate in a sum of
Rs.1,55,000/- is reduced to sum of
Rs.1,50,000/-. Entire sum of Rs.1,50,000/- is
ordered to be paid as compensation to the
complainant.
(iii) Balance sum of Rs.5000/- awarded by the
learned Trial Magistrate, confirmed by the First
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Appellate Court towards the defraying expenses
of the State is hereby set aside.
(iv) Time is granted for the accused to pay the
balance amount till 30th November 2024, failing
which, the accused shall undergo simple
imprisonment for a period of six months.
(v) Office is directed to return the Trial Court
Records along with copy of this order forthwith.
(vi) Complainant is permitted to withdraw the
amount in deposit, if any, under due
identification.
Sd/-
(V SRISHANANDA)
JUDGE
MR
