Karnataka High Court

A V Poojappa vs Dr S K Vagdevi on 4 June, 2025

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 04TH DAY OF JUNE, 2025

                        BEFORE
           THE HON'BLE MS JUSTICE J.M.KHAZI
    CRIMINAL REVISION PETITION NO.13 OF 2020
BETWEEN:

   A V POOJAPPA
   S/O SRI. VENKATAPPA,
   AGED ABOUT 54 YEARS,
   5TH WARD HOSAHALLO ROAD,
   BAGEPALLI TOWN-561207,
   CHIKKABALLAPURA DISTRICT.

                                           ...PETITIONER

(BY SRI.MAHESH KIRAN SHETTY.S, ADVOCATE)

AND:

       DR S.K.VAGDEVI
       W/O SRI. H.V.SHIVASHANKAR,
       AGED ABOUT 36 YEARS,
       PROPRIETRIX, SURAKSHA PETRO SERVICES,
       REP BY HER SPECIAL POWER OF ATTORNEY HOLDER,
       SRI. H V SHIVASHANKAR,
       S/O LATE H M VENKATARAVANAPPA,
       AGED ABOUT 45 YEARS,
       R/AT NO. 2090, 4TH CROSS,
       JUDICIAL LAYOUT, GKVK POST,
       BANGALORE-65

                                           ...RESPONDENT

(BY SRI.ANGAD KAMATH, AMICUS CURIAE)

     THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE
ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE
ORDER OF JUDGMENT OF CONVICTION AND SENTENCE DATED
16.03.2018 IN C.C.NO.6303/2015 ON THE FILE OF THE SMALL
CAUSES XXVI ACMM AT BENGALURU AND THE JUDGMENT
                              -2-




PASSED BY THE LOWER APPELLATE COURT CONFIRMING THE
JUDGMENT AND MODIFYING THE SENTENCE PASSED BY THE
LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
BENGALURU   (CCH61)   IN  CRL.A.NO.662/2018  DATED
07.11.2019.

    THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 20.03.2025, THIS DAY ORDER WAS
PRONOUNCED THEREIN AS UNDER:
CORAM:      HON'BLE MS JUSTICE J.M.KHAZI

                         CAV ORDER


     In this petition filed under Section 397 r/w 401

Cr.P.C, accused has challenged his conviction and sentence

for the offence punishable under Section 138 of N.I Act

imposed by the trial Court, which is confirmed by the

Sessions Court, but it partly allowed appeal reducing the

sentence.


     2.       For the sake of convenience, parties are

referred to by their ranks before the trial Court.


     3.       It is the case of the complainant that accused

is known to her and her family since past several years. In

this background, in the first week of April 2012, accused

requested the complainant to advance hand loan of

₹5,50,000 for his urgent personal requirement. Taking into
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consideration the request of the accused, complainant

advanced hand loan of ₹5,50,000 on 10.04.2012 i.e,

transferred a sum of ₹5 lakhs to the account of the

accused through RTGS and paid the remaining ₹50,000/-

in cash. Accused promised to repay the same during

February 2013. On the demand made by the complainant

accused issued cheque dated 25.02.2013 for a sum of

₹5,50,000/-. However, when complainant presented the

cheque for realisation, it was returned dishonoured as

"Funds insufficient". In this regard, complainant got issued

a legal notice dated 13.03.2013. Despite receipt of the

notice, accused has neither paid the amount nor sent any

reply, and hence the complaint.


     4.    After   due        service   of    summons,      accused

appeared before the trial Court and contested the case by

pleading not guilty.


     5.    In   order    to    prove    the   allegations   against

accused, complainant examined her power of attorney

holder as PW-1 and got marked Exs.P1 to 8.
                            -4-




     6.   During the course of     his statement under

Section 313 Cr.P.C accused has denied the incriminating

evidence led by the complainant.


     7.   Accused has not led any defence evidence.


     8.   The trial Court convicted the accused and

sentenced him to pay fine of ₹7,20,000 with default

sentence of imprisonment and directed that out of the fine

amount, a sum of ₹7,15,000/- be paid to the complainant

by way of compensation.


     9.   Aggrieved by the same accused went in appeal

before the Sessions Court in Crl.A.662/2018. Though the

Session Court confirmed the conviction of the accused, it

reduced to the fine amount to ₹5,55,000/- and directed a

sum of ₹5,50,000/- paid to the complainant by way of

compensation.


     10. Unfortunately complainant has not challenged

the order of the Sessions Court reducing the fine amount.
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      11.      Aggrieved by the concurrent findings of the

trial Court and Sessions Court, the accused has come up

with this petition contending that the judgment and

sentence passed by both Courts are illegal, improper,

capricious and not in accordance with law. It is therefore

liable to be set aside. Complainant failed to prove the

proprietorship of Suraksha Petro services. The Courts

below have not appreciated this aspect. They have gravely

erred in not understanding the statutory importance of

Section 118 and 139 of N.I. Act and by mis-applying the

same to the evidence on record resulted in convicting the

accused. The presumption under Section 118 and 139 of

the N.I Act is wrongly applied. The reasons assigned are

not convincing. The impugned judgment and order are

perverse, capricious and liable to be set aside and hence

the petition.


      12.      In support of his arguments, learned counsel

for accused has relied upon the following decisions:

      (i)    G.H. Abdul Kadri Vs. Mr.Mohammed Iqbal
             (Abdul Kadri)1
1
 Crl.R.No.1323/2019 c/w 1338/201, 1342/2019, 1403/2019, 1405/2019 &
1352/2019 Dt: 24.05.2022
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       (ii)    Rajaram,    S/o    Sriramulu   Naidu  (Since
               deceased) Through LRs. Vs. Maruthachalam
               (Since deceased) through LRs. (Rajaram)2

       (iii)   Sri.Dattatraya Vs. Sharanappa (Dattatraya)3

       (iv)    Sushil Kumar Churiwala Vs. Akshay Bansal
               (Sushil Kumar Churiwala)4

       (v)     Nagappa Vs. N.H.Omprakash (Nagappa)5


       13.     On the other hand, learned Amicus Curiae

representing        the     complainant         submitted   that   the

substantial portion of loan amount in a sum of ₹5 lakhs

was paid by transferring the said amount to the account of

the accused through RTGS. At the request of accused

remaining some of ₹5 lakhs was paid in cash. On

dishonour of the cheque, when legal notice was sent to the

accused through RPAD and it is duly served. Accused has

not chosen to send any reply and he has also not complied

with the same. At the trial, during the cross-examination

of PW-1, he has taken up a defence that ₹5 lakhs

transferred to the account of accused through RTGS was

the loan taken from him and it was returned to him.

2
  2023 Livelaw (SC) 46
3
  Crl.A.No.3257/2024 (SLP (Crl)No.13179/2023)
4
  Crl.RP.No.1043/2022 DD: 10.12.2024
5
  Crl.RP.No.1140/2021 DD: 17.02.2025
                                  -7-




However, except the suggestion, the accused has not led

any evidence to prove his defence. He also submitted that

the Sessions Court without any justifiable cause has

unnecessarily reduced the amount and sought for dismissal

of the petition.


       14. In support of arguments, learned Amicus Curiae

for complainant has relied upon the following decisions:


       (i)     Eknath Shankarrao Mukkawar Vs. State of
               Maharashtra (Eknath)6

       (ii)    Sahab Singh and Ors. Vs. State of Haryana
               (Sahab Singh)7

       (iii)   Damodar S.Prabhu        Vs.   Sayed   Babalal   H
               (Damodar)8

       (iv)    R.Vijayan Vs. Baby and Anr. (R.Vijayan)9


       15.     Heard arguments and perused the record.


       16.     In the light of the ratio in the decisions relied

upon by the learned Amicus Curiae representing the

complainant, it is necessary to examine whether the trial

Court and First Appellate Court are justified in holding that

6
  (1977) 3 SCC 25
7
  (1990) 2 SCC 385
8
  (2010) 5 SCC 663
9
  (2012) 1 SCC 260
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the allegations against accused are proved. It is also

necessary to examine whether the First Appellate Court is

justified in reducing the fine amount.


     17.   The fact that cheque in question is drawn on

the account of accused, maintained with his banker and it

bears his signature is not in dispute. Therefore, the

presumption under Section 139 of N.I Act that the cheque

was issued towards repayment of any legally recoverable

debt or liability is attracted, placing the initial burden on

the accused to rebut the presumption and establish the

circumstances in which the cheque came to be issued or

reached the hands of complainant.


     18.   The accused has not sent reply to the legal

notice spelling out his defence at the earliest available

opportunity. In this regard during the course of cross-

examination of PW-1 by making a suggestion to him he

has claimed that notice was not served on him. However,

accused is not disputing his address to which the legal

notice was sent. In fact in the complaint also same address

is given. As per Section 27 of General Clauses Act, when
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any document is required to be served by post, the service

shall be deemed to be effected by properly addressing,

preparing     and   posting   by    registered   post    a   letter

containing the document. It is proved to have been

effected at the time at which the letter would be delivered

in the ordinary course of the post.


     19. In the present case the acknowledgement at

Ex.P8 indicate that the legal notice is duly served on him

on 21.03.2013 As noted earlier, by not sending reply to

the legal notice, the accused has not spelt out his defence

at the earliest available opportunity. However, during the

course   of   cross-examination      of   PW-1   by     making   a

suggestion that the ₹5 lakhs paid through RTGS to the

accused was the amount taken from him and it was

returned, the accused has taken up defence that he had

lent ₹5 lakhs to the complainant and it was returned to

him. Therefore, burden is on him to establish that

complainant had borrowed ₹5 lakhs from him and it was

returned through RTGS.
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         20.     Except making this suggestion, the accused has

not led any evidence to prove that he was the lender and

complainant was the borrower and the loan taken from

him was returned through RTGS. However, the conduct of

accused in not sending any reply taking such defence and

also not leading any evidence to prove the same, this

Court is very sure that for the sake of defence, the

accused has taken such a defence without any substance.

The accused has also not led any evidence to prove his

defence. Of course as held in Rangappa Vs. Mohan

(Rangappa)10             and   Basalingappa   Vs   Mudibasappa

(Basalingappa)11, the accused need not lead evidence

and he may rely on the evidence by the complainant to

prove his defence. However, in the present case there is

nothing in the evidence led by the complainant, which is

useful to the accused, on which he could rely upon.


         21.     Both the trial Court as well as the Sessions

Court on appreciation of oral and documentary evidence

placed on record have rightly held that the allegations

10
     (2010) 11 SCC 441
11
     (2019) 5 SCC 418
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against accused are proved. The conclusion arrived at and

findings given by them are consistent with the evidence

placed on record and this Court finds no perversity in the

same calling for interference.


     22.   Having regard to the fact that on facts the

allegations against accused are held to be proved, the

decisions relied upon by the accused are not applicable to

the case on hand.


     23.    Now, coming to the question whether the First

Appellate Court is justified in reducing the fine amount. It

is relevant to note that under Section 138 of the N.I Act,

the Courts are given a discretion so far as the punishment

is concerned, which may be imprisonment for a term which

may extend to two years or with fine, which may extend to

twice the amount of cheque or with both. In the present

case the trial Court taking into consideration the loan

amount, time taken for conclusion of the trial and using its

discretion the trial court sentenced the accused to pay fine

of ₹7,20,000/- and directed payment of ₹7,15,000 to the

complainant   by    way   of   compensation. However,   the
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Sessions Court without assigning any justifiable reasons

has reduced the fine to ₹5,50,000/-. The loan was of the

year 2012. By the time the Session Courts disposed of the

appeal on 07.11.2019, already seven years have elapsed.

Considering the same, even the fine of ₹7,20,000/-

imposed by the trial Court was on the lower side. Without

proper application of mind, unnecessarily the Sessions

Court has reduced the fine.


     24.    While imposing the punishment, the Courts are

required to examine the following aspects:

     1.    The quantum of the loan

     2.    The defence taken by the accused, more

           particularly whether he has taken a false

           defence and failed to prove the same.

     3.    Whether the accused has dragged on the matter

           unnecessarily and thereby delayed the disposal

           of the case at the stage of trial, appeal,

           revision and before the Hon'ble Supreme Court.

     4.     Whether the transaction relates to business

           between the parties or the parties are business
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              class who would have utilized the amount for

              their business and flourish, or

        5.    In other cases, the returns the loan        amount

              would have brought, if it was kept in a fixed

              deposit in a nationalised bank etc,


        25. Of course, this list is not exhaustive and there

may be other justifiable reasons for fixing the quantum of

fine.

        26. Unfortunately,       in       the   present   case,    the

complainant has not challenged the order of the Sessions

Court reducing the fine amount and therefore, in the

present revision the same could not be modified, restoring

the fine imposed by the trial Court. However, the trial

Court as well as the Sessions Court shall keep in mind the

grounds on which to fix the fine amount.


        27.   In the result the petition fails and accordingly

the following:

                               ORDER
1. Petition filed by the accused under Section
397 r/w 401 Cr.P.C is dismissed.
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2. The impugned judgment and order dated
16.03.2018 in C.C.No.6303/2015 on the file
of Judge, Court of Small Causes and XXVI
ACMM, Bengaluru and judgment and order
dated 07.11.2019 in Crl.A.No.662/2018 on
the file of LX Addl.City Civil and Sessions
Judge, Bengaluru are confirmed.
3. The Registry is directed to send back the
trial Court as well as Sessions Court records