Karnataka High Court

Sri. Gurumallaiah vs Sri Govinda M .T on 23 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                  NC: 2024:KHC:42689
                                            CRL.RP No. 1383 of 2023




              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.1383 OF 2023
            BETWEEN:

               SRI. GURUMALLAIAH,
               S/O LATE NANJUNDAIAH,
               AGED ABOUT 46 YEARS,
               R/AT NO.128, 4TH MAIN,
               ANNAPOORNESHWARI NAGAR,
               ULLALA MAIN ROAD,
               BENGALURU - 560 050.
                                                      ...PETITIONER
            (BY SRI. SHIVAYOGESH SHIVAYOGIMATH, ADVOCATE FOR
                SRI. CHANDRASHEKAR K.B., ADVOCATE)

            AND:

               SRI GOVINDA M .T.,
Digitally      S/O LATE M. THIMMEGOWDA,
signed by      AGED ABOUT 40 YEARS,
MALATESH
KC             R/AT NO.10, 16TH CROSS,
Location:      MUNESHWARA NAGAR,
HIGH           BENGALURU.
COURT OF
KARNATAKA                                           ...RESPONDENT
            (BY SRI. MOHANKUMAR M.C., ADVOCATE)

                 THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC PRAYING
            TO SET ASIDE THE ORDER/JUDGMENT DATED 28.07.2023
            PASSED BY THE LEARNED LXV ADDL.CITY CIVIL AND
            SESSIONS JUDGE, BENGALURU IN CRL.A.NO.54/2022 AND THE
            ORDER DATED 15.12.2021 PASSED BY THE LEARNED XXIII
            A.C.M.M AT BENGALURU IN C.C.NO.2009/2019.
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                                                   NC: 2024:KHC:42689
                                            CRL.RP No. 1383 of 2023




     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM:    HON'BLE MR JUSTICE V SRISHANANDA



                           ORAL ORDER

Heard Sri. Shivayogesh Shivayogimath, learned

counsel for the revision petitioner. None appears for the

respondent.

2. Revision petitioner is the accused who suffered

an Order of conviction in CC No.2009/2019 dated

15.12.2021 on the file of learned XXIII Additional Chief

Metropolition Magistrate, Bengaluru for the offence

punishable under Section 138 of the Negotiable

Instruments Act and ordered to pay fine of Rs.3,20,000/,

out of which Rs.3,15,000/- is ordered to be paid as

compensation to the complainant and balance sum of Rs.

5,000/- is ordered to be paid as defraying expenses of the

State, which was confirmed in Criminal Appeal No.54/2022

dated 28.07.2022 on the file of the Learned LXV Additional

NC: 2024:KHC:42689

City Civil and Sessions Judge, Bengaluru (CCH-66) has

preferred this revision petition.

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 lodged under Section

200 of Cr.P.C., with the jurisdictional Magistrate alleging

the commission of offence punishable under Section 138 of

the Negotiable Instrument Act by the accused, by

contending that in the 1st week of May-2016, the accused

borrowed a sum of Rs.3,00,000/- to meet his legal

necessities and to maintain the Pomegranate Plants. The

said loan amount was agreed to repay within a period of

three months. The accused failed to repay the amount and

ultimately issued a cheque bearing No.032494 dated

09.10.2018 in a sum of Rs.3,00,000/- drawn on Karnataka

Bank Ltd., Turuvekere Branch, Tumkur District. The said

cheque on presentation came to be dishonored with an

endorsement 'funds insufficient' on 12.10.2018.

NC: 2024:KHC:42689

3.2 Thereafter, a legal notice was issued by the

complainant calling upon the accused to repay the cheque

amount through R.P.A.D. The legal notice was duly served

on 12.11.2018 and despite the service of notice, there is

no reply nor compliance to the callings of notice resulting

in filling the aforesaid complaint for taking action against

the accused.

4. The learned Trial Magistrate after completing

necessary formalities, summoned the accused and

recorded the plea. Accused pleaded not guilty. Therefore,

the trial was held.

5. In order to prove the case of the complainant,

complainant got examined as P.W.1 and relied on ten

documentary evidence on record which were exhibited and

marked as Exs.P.1 to Ex.P.10 comprising of original

dishonored cheque, bank endorsement, office copy of the

legal notice, postal receipt and postal acknowledgment,

certified copy of the sale deed, certified copy of the

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general power of attorney and payslips pertaining to the

complainant.

6. Detailed cross-examination of P.W.1 did not give

any positive material to dislodging the presumption

available to the complainant under Section 139 of the

Negotiable Instrument Act nor to disbelieving the version

of the complaint about the hand loan transaction.

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 circumstances.

8. In order to dislodge the presumption available

to the complainant, accused stepped into the witness box

and got examined himself as D.W.1 and did not place any

documentary evidence on record. During cross-

examination, accused admitted that he has borrowed the

money from the complainant.

NC: 2024:KHC:42689

9. Taking note of the above aspects of the matter,

learned Trial Judge heard the arguments of both sides and

convicted the accused and sentenced as above.

10. Being aggrieved by the same, the accused filed

an appeal before the District Court in Criminal Appeal

No.54/2022.

11. The learned Judge in the First Appellate Court

after securing the records, heard the parties in detail and

by judgment dated 28.07.2022 dismissed the appeal of

the accused.

12. Being further aggrieved by the same, the

accused is before this Court in the revision petition.

13. Sri. Shivayogesh Shivayogimath., learned

counsel for the revision petitioner reiterating the grounds

urged in the revision petition, vehemently contended that

both the Courts have not properly appreciated the material

evidence on record and such the earning capacity of the

complainant to advance the loan in a sum of Rs.3,00,000/-

NC: 2024:KHC:42689

to the accused and sought for admitting the revision

petition for further consideration.

14. Learned counsel for the respondent is absent

today. In the light of the arguments put-forth on behalf of

the revision petitioner, this Court perused the material on

record meticulously.

15. On such perusal of the material on record, in

view of the admission made by the accused in his cross-

examination and having regard to the fact that the

complainant stepped into the witness box and deposed

about the hand loan and issuance of the cheque and

signature of the accused in Ex.P.1-cheque, the Court is of

considered opinion that the Trial Magistrate and learned

Judge in the First Appellate Court were justified in

convicting the accused for the aforesaid offence.

16. However, it is noticed that a sum of Rs.5,000/-

was ordered to be paid as fine towards defraying the

expenses of the state after payment of Rs.3,15,000/- as

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compensation to the complaint passed by the Trial

Magistrate confirmed by the First Appellate Court.

17. Since, the lis is privy to the parties and no State

machinery is involved, directing the accused to pay fine of

Rs.5,000/- towards defraying expenses of the State needs

interference by this Court in this revision petition.

18. Accordingly, the following:

ORDER

i. Revision petition is allowed in part.

ii. While maintaining the order of conviction

of the accused for the offence punishable

under Section 138 of the Negotiable

Instruments Act, fine amount awarded by

the Trial Magistrate in a sum of

Rs.3,20,000/- is reduced to Rs.3,15,000/.



       iii.    Entire amount of Rs.3,15,000/- is ordered

               to    be   paid   as       compensation          to   the

complainant on or before 30.11.2024.

NC: 2024:KHC:42689

Failing which, the accused shall undergo

simple imprisonment for a period of five

months.

iv. A sum of Rs.5,000/- ordered by Trial

Magistrate confirmed by the First

Appellate Court towards defraying

expenses of the State is hereby set aside.