Karnataka High Court
Mrs Sujatha Shetty vs Mr Arun Kumar Shetty on 11 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 1641 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.1641 OF 2016
BETWEEN:
MRS. SUJATHA SHETTY
AGED ABOUT 36 YEARS,
W/O VISHWANATHA SHETTY,
R/AT KONDAJE HOUSE KUNJATHBAIL,
KAVOOR POST,
MANGALURU D.K.-575013.
...PETITIONER
(BY SRI VENKATESH SOMAREDDY, ADVOCATE FOR
SRI GOURAV G K, ADVOCATE)
AND:
MR. ARUN KUMAR SHETTY
AGED ABOUT 52 YEARS,
S/O KRISHNAPPA SHETTY,
R/AT LAXMI NIVAS,
Digitally signed
by DEVIKA M KOLAMBE POST,
Location: HIGH MANGALURU TALUK-575101.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI RAVEESH P, ADVOCATE [ABSENT])
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION DATED
06.02.2016 PASSED BY THE J.M.F.C.-IV COURT, MANGALURU
IN C.C.NO.1445/2014 AND ETC.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
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CRL.RP No. 1641 of 2016
ORAL ORDER
This revision petition is filed challenging the
judgment of conviction dated 06.02.2016 passed in
C.C.No.1445/2014 by the Trial Court and the judgment
dated 01.12.2016 passed in Crl.A.No.54/2016 by the First
Appellate Court.
2. Heard the learned counsel for the petitioner.
The counsel for the respondent is absent and in view of
the order of this Court dated 28.01.2025, the matter is
heard in his absence and hence, argument of the
respondent's side is taken as nil.
3. The factual matrix of the case of the
complainant before the Trial Court that this petitioner had
obtained a hand loan of Rs.2,00,000/- by the complainant
through Cheque bearing No.865363 dated 18.04.2011 for
Rs.55,000/- and Cheque bearing No.865369 dated
16.05.2011 for Rs.50,000/- drawn on Vijaya Bank, ... and
an amount of Rs.95,000/- by way of cash on 16.05.2011.
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It is also contended that accused had issued a cheque for
the said amount, in due of repayment thereof, vide
Cheque bearing No.023125 dated 31.10.2012 drawn on
Axis Bank Ltd.,, Mangalore for Rs.2,00,000/-. The said
cheque have been dishonoured when presented for
encashment with an endorsement 'account closed' and
immediately, the complainant issued a legal notice on
15.11.2012 calling upon the accused to make the payment
of the Cheque amount which was shown to have been duly
served on the accused and the said notice was served on
the accused, inspite of service of notice, the accused
neither paid the amount nor replied to the said notice.
Hence, the complaint was filed and cognizance was taken
by the Trial Court for the offence punishable under Section
138 of NI Act and when accused did not plead guilty, the
Trial Court allowed the parties to lead their evidence. In
order to prove the case of the complainant, he himself
examined as PW1 and got marked the documents at Ex.P1
to P6. On the other hand, the accused was subjected to
313 statement wherein she denied the incriminating
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circumstances and by way of defence, she examined as
DW1 and got marked the documents at Ex.D1 to D5. The
Trial Court having taken note of the payment by way of
cheques and cash and the same was not returned even
though issuance of legal notice comes to the conclusion
the complainant has proved his case and accused has not
rebutted her case and hence, convicted and sentenced the
accused for a fine of Rs.2,05,000/- and in default to pay
fine amount, the accused shall undergo simple
imprisonment for a period of six months. Being aggrieved
by the said order, an appeal was preferred before the First
Appellate Court in Crl.A.No.54/2016 wherein the First
Appellate Court considering both oral and documentary
evidence placed on record held that the complainant has
paid only an amount of Rs.1,05,000/- by way of cheques
and to prove the fact that he has paid the amount of
Rs.95,000/- by way of cash, no material is placed on
record and hence, comes to the conclusion that the liability
on the accused is only Rs.1,05,000/- and not
Rs.2,00,000/- and hence, accepted the case of the
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complainant for Rs.1,05,000/- and also taken note of the
fact that the accused had paid an amount of Rs.49,000/-
and Rs.10,000/- subsequent to Ex.P1 dated 31.10.2012
and modified the judgment of the Trial Court directing the
accused to pay an amount of Rs.58.000/- to the
complainant and Rs.2,000/- shall be credited to the
Government account. Being aggrieved by the judgments
of both the Courts, the present revision is filed before this
Court by the accused.
4. The main contention of the revision petitioner is
that when the complainant claimed that he had made the
payment of Rs.2 lakh to the accused, the First Appellate
Court comes to the conclusion payment was made only to
the tune of Rs.1,05,000/- and hence, legal liability is only
Rs.1,05,000/- and hence, the complainant ought not to
have presented the Cheque for Rs.2,00,000/-. In support
of his arguments, he relied upon the judgment of the Apex
Court reported in (2023) 1 SCC 578 in the case of
DASHRATHBHAI TRIKAMBHAI PATEL vs HITESH
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MAHENDRABHAI PATEL AND ANOTHER wherein the
Apex Court held that issuance of Cheque as security, effect
of part-payment of debt prior to presentation of Cheque
for encashment, Section 138 whether would still be
attracted when the drawer of the Cheque makes a part-
payment towards the debt or liability after the Cheque is
drawn but before the Cheque is encashed, for the
dishonour of the Cheque which represents the full sum and
principles also clarified that when a part-payment of the
debt is made after the Cheque was drawn but before the
Cheque is encashed, such payment must be endorsed on
the Cheque under Section 56 and the Cheque cannot be
presented for encashment without recording the part-
payment, therefore, if the unendorsed Cheque is
dishonoured on presentation, the offence under Section
138 would not be attracted since the Cheque does not
represent a legally enforceable debt at the time of
encashment.
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5. The counsel also brought to notice of this Court
to paragraphs 16 and 20 of the said judgment wherein
also discussion was made with regard to application of
Section 138 of NI Act. The counsel, apart from this
judgment, would vehemently contend that when the First
Appellate Court comes to the conclusion that liability is
only to the tune of Rs.1,05,000/-, the complainant ought
not to have presented the Cheque for Rs.2,00,000/-, the
very complaint ought to have been dismissed.
6. Having heard the learned counsel appearing for
the petitioner and also considered the material on record
and the principles laid down in the judgment referred
supra, the points that would arise for the consideration of
this Court are:
1. Whether the Trial Court committed an error in
convicting and sentencing the accused for the
fine of Rs.2,02,000/- for the offence
punishable under Section 138 of NI act and
whether the First Appellate Court committed
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an error in modifying the judgment of the
Trial Court directing to pay an amount of
Rs.60,000/- instead of dismissing the
complaint as contended by the counsel for the
revision petitioner and whether this Court can
exercise the revisional jurisdiction?
2. What order?
Point No.1
7. Having heard the learned counsel for the
petitioner and also on perusal of the material on record, it
discloses that the case of the complainant is that he had
advanced an amount of Rs.2,00,000/- and payments are
made through two cheques to the tune of Rs.1,05,000/-
and remaining amount of Rs.95,000/- by way of cash. In
order to substantiate the same, the complainant contend
that accused had issued the Cheque for Rs.2,00,000/- and
same is also marked as Ex.P1. Issuance of Cheque is not
in dispute and signature is also not in dispute and issuance
of legal notice also not in dispute and same was also
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served on the accused and the same is also not in dispute
since acknowledgement for the same is produced as Ex.P4
but no reply was given by the accused and he did not deny
the claim of the complainant. However, the complainant
fails to prove the fact that he had paid the amount of
Rs.95,000/- by way of cash and even though the Trial
Court accepted the case of the complainant in coming to
the conclusion that the legal notice which was issued, was
not disputed by the accused for having advanced the loan
of Rs.2,00,000/- and hence, convicted the sentenced the
accused for an amount of Rs.2,02,000/-. But the First
Appellate Court having re-assessed the material on record
comes to the conclusion for having paid the amount of
Rs.95,000/- by way of cash is concerned, no material is
placed before the Court and hence, the First Appellate
Court held that the liability is only Rs.1,05,000/- and
modified the judgment of the Trial Court.
8. The argument of the learned counsel for the
petitioner before this Court is that once the First Appellate
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Court comes to the conclusion that complainant has paid
only an amount of Rs.1,05,000/- based on the two
cheques for an amount of Rs.55,000/- and 50,000/-,
ought to have been dismissed the very complaint itself and
merely because the complainant has not placed any
document before the Court for having made the payment
of Rs.95,000/- is concerned, the very contention of the
petitioner is that at the threshold, the complaint ought to
have been dismissed cannot be accepted. The very claim
of the complainant that he made the payment of
Rs.95,000/- by way of cash and when Cheque was
presented and same was dishonoured and immediately,
legal notice was given and same was served but not
replied denying the claim of the complainant. In terms of
the judgment of the Apex Court reported in AIR 2010 SC
1898 in the case of RANGAPPA vs MOHAN, the Apex
Court held that once the notice was given and the same
was acknowledged and reply was not given, the Court has
to take note of the said fact into consideration.
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9. It is important to note that the First Appellate
Court comes to the conclusion that in order to prove the
factum of payment of Rs.95,000/-, no documents are
produced and discretion is exercised while re-appreciating
the material on record and held that the complainant only
paid the amount of Rs.55,000/- and 50,000/- by way of
Cheques and comes to the conclusion legal liability is only
Rs.1,05,000/- and with regard to payment of Rs.95,000/-
by way of cash is concerned, the First Appellate Court
comes to the conclusion that not produced any
documents. That does not mean that the complainant has
not issued the Cheque for amount of Rs.2,00,000/- but the
fact that Cheque was issued and not disputed that Cheque
was given. However, the complainant has not questioned
the order of the First Appellate Court by filing any appeal
or revision against the finding of the First Appellate Court.
When such being the case, the very contention of the
petitioner counsel that once the Court comes to the
conclusion that legal liability is only Rs.1,05,000/-, ought
to have been dismissed the complaint cannot be accepted.
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10. The counsel for the petitioner relied upon the
judgment of the Apex Court in the case of
DASHRATHBHAI TRIKAMBHAI PATEL referred supra
wherein the Apex Court discussed with regard to when a
part-payment of the debt is made after the Cheque was
drawn but before the Cheque is encashed, such payment
must be endorsed on the Cheque. But in the case on
hand, there is no endorsement. But no date is given for
having made the part payment by the petitioner also
whether it is before the presentation of Cheque or after
presentation of Cheque and only on the admission of PW1
that he has received the amount of Rs.59,000/- only, the
First Appellate Court has modified the judgment of the
Trial Court. When such being the case, under the
circumstances, the principles laid down in the case of
DASHRATHBHAI TRIKAMBHAI PATEL referred supra is
not applicable to the facts of the case on hand since no
material is placed before the Court that before
presentation of the Cheque, part payment was made and if
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no such material is placed, this judgment will not comes to
the aid of the petitioner's counsel as contended. Hence, I
do not find any ground to exercise the revisional
jurisdiction and finding of the Trial Court in taking into
note that notice was issued and same has not been replied
disputing the same but the First Appellate Court re-
assessed the material on record in a proper perspective in
coming to conclusion that there was no material for having
made the payment of Rs.95,000/- by way of cash and not
accepted the case of the complainant with regard to
payment of Rs.95,000/- is concerned. Hence, the very
contention of the petitioner's counsel that First Appellate
Court ought to have dismissed the very complaint by
allowing the appeal cannot be accepted. Hence, there is
no legal infirmity in the order of both the Courts and
hence, there are no grounds to exercise the revisional
jurisdiction by this Court since the orders of both the
Courts do not suffers from any legality or correctness.
Hence, I answer the above point as negative.
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Point No.2
11. In view of the discussions made above, I pass
the following:
ORDER
The revision petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
