Karnataka High Court
Sri Narayana vs Sri Kamalakar R Hombal on 29 October, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:43674
CRL.RP No. 785 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 785 OF 2023
(397(Cr.PC) / 438(BNSS))
BETWEEN:
SRI NARAYANA
S/O LATE ALAGA SHETY,
AGED ABOUT 54 YEARS,
R/AT NO 58/A MUNESHWARA LAYOUT,
11TH CROSS,11TH MAIN ROAD , ATTUR,
NEAR AKKAYAMMA TEMPLE,
YELAHANKA UPANAGARA
BENGALURU 560 068
...PETITIONER
(BY SRI. KUMARA K G.,ADVOCATE)
AND:
SRI KAMALAKAR R HOMBAL
S/O LATE RAMACHANDRA L HOMBAL,
AGED ABOUT 57 YEARS
R/AT NO 330, 2ND FLOOR,
Digitally 4TH D CROSS, 2ND MAIN ROAD,
signed by M S PALYA, J -52, 3RD CROSS
MALATESH 1ST MAIN, VIDYARANYAPURAM,
KC BENGALURU - 560 021
Location: ...RESPONDENT
HIGH (BY SRI. PRAKASH BABU K.,ADVOCATE)
COURT OF
KARNATAKA
THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
JUDGMENT PASSED BY THE LXII ADDL.CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN CRL.A.NO.1551/2019
DATED 23.03.2023 AND JUDGMENT PASSED BY THE VI
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CRL.RP No. 785 of 2023
ADDL.SMALL CAUSES JUDGE AND XXXI A.C.M.M., BENGALURU
IN C.C.NO.21587/2017 DATED 19.06.2019.
THIS 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 Kumara K.G., learned counsel for the revision
petitioner and Sri Prakash Babu .K., learned counsel for
respondent.
2. The accused, who has been convicted for the offence
punishable under Section 138 of the Negotiable Instruments
Act ('N.I. Act' for short) in C.C. No.21587/17 dated 19th June
2019 on the file of the VI Addl. Small Causes Judge & XXXI
Addl. Chief Metropolitan Magistrate, Bengaluru City, and
ordered to pay a fine of Rs.2,05,000/- with default sentence of
three months, confirmed in Criminal Appeal No.1551/2019
dated 23.03.2023 on the file of the LXII Additional City Civil &
Sessions Judge, Bengaluru, has preferred this revision petition.
3. Brief facts of the case which are utmost necessary for
disposal of the revision petition are as under:
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4. A private complaint came to be lodged with the
jurisdictional Magistrate under Section 200 of Cr.P.C. by the
complainant against the accused for the offence punishable
under Section 138 of the Negotiable Instruments Act ('N.I. Act'
for short) by contending that the accused, who was his
colleague and known to him for more than 25 years, had
approached him and borrowed a sum of Rs.1,40,000/- in cash
to meet his immediate financial necessity with a promise to
repay the same. Complainant having saved the money for
daughter's marriage, lent a sum of Rs.1,40,000/- to the
accused. Towards the repayment, accused said to have issued
a cheque bearing No.650850 dated 24.3.2017 drawn on
Syndicate Bank, Malleshwaram branch, Bengaluru in a sum of
Rs.1,40,000/-. The said cheque on presentation came to be
dishonoured with an endorsement "funds insufficient". The
same was intimated to the accused by way of a legal notice on
19.7.2017. The accused failed to make payment, but he has
sought for some more time and thereafter, again cheque was
re-presented and the same was again dishonoured and
therefore one more notice came to be issued. Since there was
no compliance, complaint came to be filed.
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5. The learned trial Magistrate after completing the
necessary formalities summoned the accused and recorded the
plea. The accused pleaded not guilty. But, he offered an
explanation and the same was recorded by the learned trial
Magistrate. Accused also filed an application under Section
145(2) of the N.I. Act seeking permission of the Court to
cross-examine the complainant on the affidavit filed by him at
the time of filing the complaint. The said application was
allowed by the learned trial Magistrate and he was permitted to
cross-examine the complainant.
6. During such cross-examination, no useful materials
were elicited so as to disbelieve the version of the complainant
or to dislodge the presumption available to the complainant
under Section 139 of the N.I. Act.
7. Thereafter, accused statement as contemplated under
Section 313 of the Code of Criminal Procedure was recorded.
Accused has denied the incriminating circumstances found
against him, in toto.
8. In order to rebut the presumption available to the
complainant, accused stepped into the witness box and got
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examined himself as DW.1 and placed on record two
documents as Ex.D1 and Ex.D2, which are the two legal notices
received by him from the complainant depicting the fact that
the cheque was dishonoured twice and no action was taken on
the first notice.
9. Cross-examination of DW.1 reveals that he has taken
the plea of discharge, but failed to prove the same. It is also
elicited in the cross-examination of DW.1 that he repaid the
money by cash and no one was present when such repayment
was made and he has not received any receipt for having
repaid the sum of Rs.1,40,000/-.
10. Thereafter, learned trial Judge heard the parties in
toto and convicted the accused as aforesaid.
11. Being aggrieved by the same, the accused preferred
an appeal before the District Court in Criminal Appeal
No.1551/2019.
12. Learned Judge in the first appellate Court after
securing records, heard the parties in detail and by the
judgment dated 23.3.2023 dismissed the appeal of the accused
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and confirmed the order of conviction and sentence passed by
the learned trial Magistrate.
13. Being further aggrieved by the same, the accused is
before this Court in the revision.
14. Sri Kumara K.G., learned counsel for the revision
petitioner reiterating the grounds urged in the petition,
contended that both the Courts have misdirected themselves in
not properly appreciating the material evidence on record and
convicting the accused and sought for allowing the revision
petition and also pressed into service the ground of technicality
inasmuch as after the first cause of action arose, without
getting any further instructions from the accused, the
complainant has re-presented the cheque on his own and
thereby, the first cause of action gone un-unutilized.
15. He also urged that there is no averment made in the
complaint with regard to the first presentation and issuance of
the legal notice, which is a vital point and the same has not
been taken into consideration by the learned trial Magistrate
and ignored by the learned Judge in the first appellate Court
and sought for allowing the revision.
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16. Per contra, Sri Prakash Babu .K., learned counsel for
the complainant supports the impugned judgment.
17. Insofar as the technical plea is concerned, he has
stated that in view of the principles of law enunciated by the
Hon'ble Apex Court in the case of MSR Leathers -vs- S.
Palaniappan and another reported in (2013)1 SCC 177,
multiple presentation of the cheque within the validity period of
the cheque would give raise to multiple cause of actions.
Therefore, there is no merit in the case of the revision
petitioner and sought for dismissal of the revision petition.
18. Having heard learned counsel for the parties in
detail, this Court perused the material on record meticulously.
On such perusal of the material on record, following points
would arise for consideration:
i) Whether the revision petitioner makes out a case
that the impugned judgments suffering from
patent factual or legal error so as to term the
impugned judgments as perverse and seeking
interference by this Court in this revision ?
ii) Whether the sentence imposed calls for
modification?
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iii) What order ?
19. In the case on hand, issuance of the cheque and the
signature of the accused therein is not in dispute. Infact the
cross-examination of DW.1 puts an end to the rival contention
with regard to transaction is concerned inasmuch DW.1 has
specifically answered in the cross-examination that he repaid
the amount of Rs.1,40,000/- in cash by mustering such amount
from his savings and borrowing from the other villagers.
However, the plea of discharge is not proved by DW.1 except
his oral testimony. It is pertinent to note that no prudent
person would repay a sum of Rs.1,40,000/- especially after
issuing the legal notice twice marked as Ex.D1 and Ex.D2,
without a receipt. Further, what is the date on which he repaid
the amount is not mentioned and in whose presence the
repayment is made is also silent. On the contrary, he admits
that at the time of repayment, except the complainant and the
accused, none else were there. Taking note of these facts of
the matter, the learned trial Judge has disbelieved the version
of the accused and convicted the accused, which has been
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rightly re-appreciated by learned Judge in the First Appellate
Court.
20. Now coming to the question of technical plea taken
by the revision petitioner inasmuch as no mention in the
complaint averment as to issuance of the legal notice when the
cheque was dishonoured for the first time is concerned, the
learned trial Magistrate in paragraph-30 of the impugned
judgment places reliance on the judgment of the Hon'ble Apex
Court in the case of MSR Leathers supra and has specifically
ruled that multiple presentation of the cheque within the
validity period would give raise to multiple cause of actions and
every time there is a dishonour of the cheque, a fresh cause of
action would enure in favour of the complainant to take action
under Section 138 of the N.I. Act and therefore, the plea of
revision petitioner was not countenanced by the trial Magistrate
while passing the order of conviction.
21. Learned Judge in the first appellate Court re-
appreciating these aspects of the matter including the technical
plea raised on behalf of the accused, concurred with the finding
recorded by the trial Magistrate.
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22. This Court having regard to the limited scope in the
revisional jurisdiction, does not find any merit in any of the
grounds urged on behalf of accused so as to interfere with the
well-reasoned order passed by the trial Magistrate confirmed by
the learned Judge in the first appellate Court.
23. In view of the above discussion, point no.1 is
answered in the negative.
24. Now coming to the question of sentence is concerned,
as against the cheque amount of Rs.1,40,000/-, learned trial
Magistrate exercising the discretionary power vested in it to
impose double the cheque amount as the fine, has imposed the
fine of Rs.2,05,000/- and out of the said amount, a sum of
Rs.5,000/- was ordered to be paid to the State as defraying
expenses and balance sum of Rs.2,00,000/- was ordered to be
paid as compensation to the complainant.
25. Since, the lis is privy to the parties and no State
machinery is involved, imposition of a sum of Rs.5,000/-
towards defraying expenses of the State needs to be set aside.
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26. Accordingly, point no.2 is answered partly in the
affirmative.
27. In view of the finding of this Court on point Nos.1
and 2 as aforesaid, following order is passed.
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 N.I Act, the fine imposed by the trial
Magistrate in a sum of Rs.2,05,000/- confirmed
by the learned Judge in the first appellate Court,
is reduced to Rs.2,00,000/-. Entire sum of
Rs.2,00,000/- (Rupees two lakhs only) is ordered
to be paid as compensation to the complainant on
or before 30th November 2024, failing which the
revision petitioner shall undergo Simple
Imprisonment for a period of three months as
ordered by the learned trial Magistrate.
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iii) A sum of Rs.5,000/- (Rupees five thousand only)
imposed as fine towards the defraying expenses
of the State, is hereby set aside.
Sd/-
(V SRISHANANDA)
JUDGE
GSS
