Karnataka High Court
Srikanth G R vs Bettaswamy on 30 October, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 681 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.681 OF 2020
BETWEEN:
1. SRIKANTH G R
S/O RAMAKRISHNAIAH,
AGED ABOUT 41 YEARS,
R/AT NO.1377, ASHOKNAGAR,
BSK 1ST STAGE,
BEGNALURU-560085
...PETITIONER
(BY SRI MOHAN K N, ADVOCATE)
AND:
1. BETTASWAMY
S/O KARIGOWDA,
AGED ABOUT 52 YEARS,
R/AT NO.239, RAJKUMAR ROAD,
9TH MAIN, BSK 1ST STAGE,
SRINIVASANAGAR,
Digitally BENGALURUR -560 085
signed by ...RESPONDENT
MALATESH (BY SRI NAGAVENI.G.H, ADVOCATE)
KC
Location: THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
HIGH TO SET ASIDE THE JUDGMENT AND ORDER DATED 09.03.2020
COURT OF
KARNATAKA IN CRL.A.NO.694/2018 PASSED BY THE COURT OF LXVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY AND THE JUDGMENT AND ORDER DATED 24.02.2018 IN
C.C.NO.14283/2016 PASSED BY THE COURT OF THE XII
A.C.M.M., AT BENGALURU BY ALLOWING THIS PETITION AND
ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 138 OF THE
N.I ACT.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 681 of 2020
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Mohan K.N, learned counsel for the revision
petitioner and Smt. Nagaveni G.H, 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, sentencing him to pay fine of
Rs.3,63,000/-, in default, to undergo simple imprisonment for
four months, in C.C.No.14283/2016 dated 24.02.2018 on the
file of the XII Addl. Chief Metropolitan Magistrate, Bengaluru,
confirmed in Crl.A.No.694/2018 dated 09.03.2020 on the file of
the LXVII Addl. City Civil and Sessions Judge, Bengaluru, is the
revision petitioner.
3. Facts in brief which are utmost necessary for disposal of
the present revision petition are as under:
Accused faced the criminal trial in C.C.No.14283/2016
upon the criminal complaint lodged by the complainant alleging
commission of an offence punishable under Section 138 of the
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Negotiable Instruments Act, 1881, by contending that, towards
repayment of the loan amount of Rs.3,00,000/-, accused
passed on a cheque bearing No.340992 dated 04.01.2016,
which on presentation came to be dishonoured.
4. 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 the notice nor was there any
compliance, resulting in the complainant seeking action against
the accused.
5. Learned Trial Judge, after complying with the necessary
formalities, summoned the accused and recorded the plea.
Accused pleaded not guilty. Therefore, trial was held.
6. In order to prove his case, complainant got examined
himself as P.W.1 and placed on record nine documents which
were exhibited and marked as Exs.P.1 to P.9, comprising of
dishonoured cheque, counter foil, bank endorsement, office
copy of the legal notice, postal receipt, postal acknowledgment,
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loan agreement, true copy of the complaint and true copy of
the acknowledgment.
7. Detailed cross-examination of P.W.1 did not yield any
positive material so as to disbelieve the version of P.W.1 or to
dislodge the presumption available to the complainant under
Section 139 of the Negotiable Instruments Act, 1881.
8. 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. He did not place any rebuttal evidence
nor any written statement as is contemplated under Section
313(4) of the Code of Criminal Procedure.
9. 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
himself as D.W.1 and denied the very transaction.
10. 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
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Negotiable Instruments Act, 1881, and awarded a sum of
Rs.3,63,000/- as fine, out of which Rs.3,60,000/- was ordered
to be paid to the complainant and Rs.3,000/- was ordered to be
paid as defraying expenses of the State.
11. Being aggrieved by the same, accused preferred an
appeal before the District Court in Crl.A.No.694/2018.
12. 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 and confirmed the judgment passed by the learned
Trial Judge.
13. Being further aggrieved by the same, accused is before
this Court in this revision petition challenging the validity of the
order of conviction.
14. Learned counsel for the revision petitioner Sri Mohan,
reiterating the grounds urged in the revision petition,
vehemently contended that, both Courts have not properly
taken into consideration that when once the accused denied the
very transaction, mere marking of the loan agreement and a
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dishonoured cheque was not sufficient enough to raise the
presumption in favour of the complainant and therefore, both
the Courts have erred in law in convicting the accused and
sought for allowing the revision petition.
15. Per contra, Sri Smt. Nagaveni, learned counsel for the
respondent supports the impugned judgment.
16. Having heard the arguments of both sides, this Court
perused the material on record, meticulously.
17. On such perusal of the material on record, the following
points would arise for consideration:
(i) Whether the revision petitioner/accused is able
to point patent factual error or the error of
jurisdiction so as to hold the impugned
judgments as perverse and calling for
interference from this Court in this revision
petition?
(ii) Whether the sentence is excessive.
(iii) What Order?
18. REGARDING POINT No.1: In the case on hand,
complainant has stepped into witness box and to prove the
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transaction between the accused and complainant, marked the
loan agreement.
19. It is the specific case of the complainant that towards the
repayment of loan, Ex.P.1 came to be issued and the same is
dishonoured. Issuance of legal notice did not yield any result
inasmuch as there is no compliance nor reply.
20. Therefore, the initial burden cast on the complainant has
been discharged by the complainant. After discharging the
initial burden, learned Trial Magistrate rightly raised the
presumption available to the complainant under Section 139 of
the Negotiable Instruments Act, 1881.
21. Accused who is examined as D.W.1, no doubt, in his
evidence denied the transaction and also contended that he has
issued the reply to the notice. But copy of the reply notice or
postal acknowledgment thereof is not marked on behalf of the
accused.
22. The complainant has also not admitted the receipt of
reply notice and therefore, it is to be construed that accused
has got nothing to say with regard to contents of legal notice.
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His oral testimony is nothing but a self serving testimony which
was not sufficient enough to rebut the presumption available to
the complainant under Section 139 of the Negotiable
Instruments Act, 1881, following the dictum of the Hon'ble
Apex Court in the case of "Rajesh Jain vs. Ajay Singh
reported in (2023) 10 SCC 148".
23. Therefore, conviction Order recorded by the learned Trial
Judge confirmed by the learned Judge in the First Appellate
Court needs no interference. Accordingly, point No.1 is
answered in the negative.
24. REGARDING POINT No.2: Learned counsel for the
revision petitioner contended that the accused was running a
business in condiments and during Covid-19 pandemic he
suffered great loss and therefore, the fine amount may be
reduced.
25. Per contra, Smt.Nagaveni, learned counsel for the
respondent contended that the cheque is of the year 2018 and
even after lapse of six years since no amount is paid. As such,
no concession can be shown to the accused.
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26. Taking note of the fact that the learned Trial Magistrate
has awarded Rs.3,63,000/- and accused has suffered financial
loss during Covid-19 pandemic, this Court is of the considered
opinion that reducing the fine amount from Rs.3,63,000/- to
Rs.3,25,000/- and directing the entire sum of Rs.3,25,000/- to
be paid as compensation to the complainant and, setting aside
the payment of Rs.3,000/- towards defraying expenses of the
State since the lis is privy to the parties, would meet the ends
of justice in the peculiar facts and circumstances of the case.
Accordingly, point No.2 is answered partly in the affirmative.
27. REGARDING POINT No.3: In view of the finding of this
Court on point Nos.1 and 2 as above, 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.3,63,000/- is reduced to Rs.3,25,000/- by
modifying the sentence ordered by the Trial
Court confirmed by the First Appellate Court.
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(iii) Entire amount of Rs.3,25,000/- is ordered to
be paid as compensation to the complainant.
(iv) Time is granted to the accused to pay
balance of fine amount till 30th November
2024, failing which the accused shall
undergo simple imprisonment as ordered by
the learned Trial Judge.
(v) Rs.3,000/- ordered by the learned Trial
Judge towards defraying expenses of the
State is hereby set-aside.
(vi) Amount in deposit is ordered to be
withdrawn by the complainant.
(vii) Office is directed to return the Trial Court
Records along with copy of this judgment,
forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
kcm
