Karnataka High Court

E. Narayana vs K. V. Bhagavan on 23 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                 NC: 2024:KHC:42776
                                              CRL.RP No. 46 of 2017




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 23RD DAY OF OCTOBER, 2024

                                   BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                   CRIMINAL REVISION PETITION No.46 OF 2017
            BETWEEN:

               E. NARAYANA
               S/O. ESHWARA RAO CHOWAN
               AGED ABOUT 52 YEARS
               R/AT. #219, HIMADRI BLOCK-3
               JOCKEY QUARTERS
               LALITHA MAHAL ROAD
               MYSURU-570 001.

               AND ALSO WORKING AS POLICE CONSTABLE
               P.C. NO.699, KSRP 5TH BETALIAN
               B-COMPANY, BEHIND RACE COURSE
               NAZARBAD
               MYSURU-570 010.
                                                      ...PETITIONER
               (BY SMT. MOHANA KUMARI B.V., ADVOCATE FOR
                   SRI ABUBACKER SHAFI, ADVOCATE)
Digitally
signed by   AND:
MALATESH
KC
Location:      K. V. BHAGAVAN
HIGH           S/O. K.V. VENKATARAMAIAH
COURT OF
KARNATAKA      AGED ABOUT 52 YEARS
               R/AT. #844/1, CHAMUNDESHWARI ROAD
               K.R. MOHALLA
               MYSURU-570 001.
                                                     ...RESPONDENT
               (BY SMT. PARISE VASAVI, ADVOCATE [ABSENT])

                 THIS CRIMINAL REVISION PETITION IS FILED UNDER
            SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
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                                                  NC: 2024:KHC:42776
                                             CRL.RP No. 46 of 2017




JUDGMENT AND CONVICTION ORDER DATED 31.10.2015
PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS-III
COURT, MYSURU PASSED IN C.C.No.326/2015 AND TO SET
ASIDE THE JUDGMENT AND ORDER DATED 10.11.2016 PASSED
BY THE IV ADDITIONAL SESSIONS JUDGE, MYSURU IN
CRL.A.No.256/2015.

     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.Mohana Kumari B.V. advocate for Sri

Abubacker Shafi, learned counsel for the revision petitioner.

2. None appears for the respondent.

3. Accused who suffered an order of conviction in CC

No.326/2015 dated 31.10.2015 on the file of the Judicial

Magistrate First Class, III Court, Mysuru, for the offence

punishable under Section 138 of Negotiable Instruments Act,

1881, ordering to pay fine of Rs.3,11,000/- and out of the

which, Rs.3,10,000/- was ordered to be paid as compensation

to the complainant, confirmed in Crl.A.No.256/2015 dated

10.11.2016 on the file of the IV Addl. Sessions Judge, Mysuru,

has filed the present revision petition.

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

disposal of the present revision petition are as under:

A complaint came to be lodged by the complainant under

Section 200 Cr.P.C., against the accused alleging the

commission of the offence punishable under Section 138 of

Negotiable Instruments Act, 1881, by contending that the

complainant and accused are known to each other and based

on the request of the accused, complainant has lent him a sum

of Rs.3,00,000/- in cash as loan and accused has agreed to

repay the same.

5. Towards the repayment of the said loan amount, accused

has issued a cheque bearing No.786275 drawn on State Bank

of India, Mysuru, Ittige Goodu Branch on 16.05.2011. The said

cheque, on presentation came to be dishonored with an

endorsement 'funds insufficient' on 18.05.2011.

6. Legal notice was issued demanding the amount covered

under the cheque. An untenable reply was received by the

complainant and therefore, complainant sought for action

against the accused.

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7. Learned Trial Magistrate on completing the necessary

formalities, summoned the accused and recorded the plea.

Accused pleaded not guilty and 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 seven documents, exhibited and marked as Exs.P.1 to

P.7, comprising of dishonored cheque, bank endorsement, copy

of the legal notice, postal acknowledgement, account extract

and reply notice.

9. Detailed cross-examination of the complainant did not

yield any positive material so as to disbelieve the version of the

complainant or to dislodge the presumption available to the

complainant under Section 139 of Negotiable Instruments Act,

1881.

10. Financial capacity of the complainant was also questioned

by the accused. Thereafter the complainant placed further

evidence and marked account extract as per Ex.P.6.

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11. Accused statement as is contemplated under Section 313

Cr.P.C., was recorded, wherein the accused has denied all the

incriminating material.

12. To rebut the presumption available to the complainant,

accused has got examined himself as D.W.1 and placed on

record letter issued under the right to information Act, certified

copy of deposition of Mohan Kumari in C.C.No.3/2012, certified

copy of the other witnesses in the same case and copy of the

complaint in C.C.No.53/2012 and copy of the charge sheet in

Cr.No.108/2011 as Exs.D.1 to D.6.

13. In the cross-examination of D.W.1, accused has admitted

that the signature found in Ex.P.1 cheque as his signature and

he has maintained that the cheque was issued in favour of

Mahadeva Naika which was misused by said Mahadeva Naika in

active collusion with the complainant.

14. It was also elicited in the cross-examination of D.W.1 that

he has not demanded in writing to return the cheque to

Mahadeva Naika.

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15. He admits that while replying to the notice, it has been

mentioned in the reply notice that the cheque was issued to

Mahadeva Naika. He also admits that he has not taken any

action against Mahadeva Naika or the complainant for the

alleged misuse. He further admits that, he had not issued any

'stop payment' direction to his banker. He further admits that

there was a departmental enquiry against him and he has been

held guilty in the said enquiry and he was also denied one

increment and he was warned by the employer. He also admits

that one Komala had also complained against his wife and one

Lakshamma has also filed a case for dishonor of cheque against

the accused.

16. Based on the above oral and documentary 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

sentenced the accused as referred to supra.

17. Being aggrieved by the same, accused filed an appeal

before the District Court in Crl.A.No.256/2015.

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18. The learned Judge in the First Appellate Court after

securing the records, heard the parties in detail and dismissed

the appeal of the accused.

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

this Court in this revision petition on the following grounds:

 The Hon'ble IV Addl. Sessions Judge at Mysuru ought to have allowed the Appeal filed by the petitioner in Crl.R.P.256/2015 as the facts and circumstances of the case prima facie shows that, the cheque was not issued towards any legally enforceable debt or liability.

 The Hon'ble IV Addl. Sessions Judge at Mysuru failed in appreciating the evidence on record and ought to have allowed the Appeal filed by the petitioner.

 Both the courts below have erred in coming to the conclusion that, the petitioner has committed the offence punishable under Section 138 of N.I.Act.

 Though the respondent failed to produce all the relevant documents which are very much necessary as the documents evidence to prove that the petitioner committed the offence punishable under Sec. 138 of N.I.Act, but inspite of that the Hon'ble Judges in the courts below came to the conclusion that, the petitioner committed the offence punishable under Sec. 138 NI Act which is wrong and against to law.

 The Hon'ble Judges in the courts below utterly failed to consider that, any transaction more than Rs.20,000/-

NC: 2024:KHC:42776

must be by a cheque as envisaged under Income Tax Act. But, in the instant case, the Respondent alleged to have lent Rs.3,00,000/- (Rupees Three Lakhs only) in due lump sum to the petitioner and even in his evidence he has not adduced as to the mode and manner of payment of the amount with documentary proof and as such the courts below considering the said fact and as such the courts below considering the said fact ought to have acquitted the petitioner.

 The courts below ought to have considered the aspect of non-existence of collateral documents for the alleged loan transaction and has come to a wrong conclusion that the petitioner has committed an offence punishable under Section 138 of N I Act.

 Both the courts below should have followed the law laid down in ILR 2009 KAR 3477 and delivered the Judgment of conviction in gross violation of the said decision and thereby it has resulted in mis-carriage of justice.

 Both the courts below ought to have held that, the materials on record are not sufficient to hold that the petitioner has committed the offence under Sec. 138 N.I.Act.

 Both the courts below have not appreciated the discrepancies in the evidence led by the Respondent, which led to the conviction of the petitioner.

 The Lower Appellate Court ought to have taken note that, the Trial Court in the absence of clear, cogent and trust worthy evidence proceeded to convict the petitioner. The same is illegal and liable to be set aside.

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20. Learned counsel for the revision petitioner, reiterating the

grounds urged in the revision petition, contended that both the

Courts have not properly appreciated the material evidence on

record and wrongly convicted the accused and therefore,

sought to allow the revision petition.

21. She further emphasized that the lending capacity of the

complainant was questioned by the accused and in answer to

the same, account extract of Pragathi Electricals is filed, which

is marked as Ex.P.6 which has got nothing to do with the

financial capacity of the complainant which is totally ignored by

the learned Trial Judge and the learned Judge in the First

Appellate Court and therefore, order of conviction is incorrect

and sought to allow the revision petition.

22. Learned counsel for the respondent remained absent

today.

23. Therefore, this Court perused the material on record

meticulously in the light of the arguments put forth on behalf of

the revision petitioner.

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

points would arise for consideration:

(i) Whether the revision petitioner establishes that the conviction order passed by the learned Trial Judge confirmed by the learned Judge in the First Appellate Court suffers from patent factual error or perversity so as to call for interference in the revisional jurisdiction?

(ii) Whether the sentence is excessive?

(iii) What Order:

25. REGARDING POINT No.1: In the case on hand, the

accused has admitted in his cross-examination regarding

issuance of cheque and signature found therein, is not in

dispute. The complainant has stepped into the witness box and

has stated that cheque is issued towards repayment of hand

loan in a sum of Rs.3,00,000/-.

26. Accused having admitted the issuance of cheque, took up

the contention that cheque was issued to one Mahadeva Naika

when accused had borrowed Rs.10,000/- from him and said

Mahadeva Naika instead of returning the cheque to the accused

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after repayment, has handed over the same to the complainant

who is a stranger to the accused and complainant has misused

the cheque.

27. Pertinently, reply notice marked at Ex.P.7 does not

mention the issuance of cheque to Mahadeva Naika. Accused

has admitted in his cross-examination that no action is taken

by him against Mahadeva Naika or complainant for misuse of

cheque. He also admits that no notice is issued to Mahadeva

Naika after repayment of Rs.10,000/- obtained by accused from

Mahadeva Naika.

28. All these factors, when taken into consideration, it is

noticed that, accused at one breath has stated that the

complainant is a stranger, but in the cross-examination and the

contents of the reply runs contrary to the suggestion made by

the accused.

29. These aspects of the matter have been rightly

appreciated by the learned Trial Judge while convicting the

accused for the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881, by raising presumption

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available to the complainant under Section 139 of the

Negotiable Instruments Act, 1881, holding that the evidence

placed on record by the accused is not sufficient enough to

rebut the presumption available in favour of the complainant.

30. The material on record was rightly re-appreciated by the

learned Judge in the First Appellate Court while upholding the

judgment of the learned Trial Judge.

31. This Court having regard to the limited revisional

jurisdiction, cannot re-appreciate the factual aspects urged on

behalf of the revision petitioner that complainant is a stranger,

so as to hold that the impugned judgments are suffering from

perversity.

32. Accordingly, in view of the foregoing discussion, point

No.1 is answered in the negative.

33. REGARDING POINT No.2: The learned Trial Judge has

imposed fine of Rs.3,11,000/- as against the cheque amount of

Rs.3,10,000/-. Out of fine amount of Rs.3,11,000/-,

Rs.3,10,000/- was ordered to be paid as compensation to the

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complainant and balance sum of Rs.1,000/- was ordered to be

paid to the defraying expenses of the State.

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

machinery is involved, imposing Rs.1,000/- towards defraying

expenses of the State needs interference by this Court.

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

35. 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.3,11,000/- is

reduced to Rs.3,10,000/-. Entire amount of

Rs.3,10,000/- is ordered to be paid as

compensation to the complainant.