S.Chandrashekhar vs B.Mohan Murali S/O B Gurappa
2025 Latest Caselaw 4691 Kant

Karnataka High Court

S.Chandrashekhar vs B.Mohan Murali S/O B Gurappa on 5 March, 2025

Author: V.Srishananda

Bench: V.Srishananda

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                                                         CRL.RP No. 100213 of 2022




                                  IN THE HIGH COURT OF KARNATAKA,
                                          DHARWAD BENCH

                               DATED THIS THE 5TH DAY OF MARCH, 2025

                                                BEFORE

                              THE HON'BLE MR. JUSTICE V.SRISHANANDA

                           CRIMINAL REVISION PETITION NO.100213 OF 2022
                                      (397(CR.PC)/438(BNSS))

                      BETWEEN:
                      1.    S. CHANDRASHEKHAR
                            S/O. LATE T. SETHURAMALINGAM,
                            AGED ABOUT 72 YEARS,
                            OCC. RETD. HEAD MASTER,
                            R/O. VICKY'S SCHOOL COMPOUND,
                            VIDYANAGAR KOLAGAL ROAD, BALLARI-583101.

                      2.   SMT.VANAJA CHANDRASHEKHAR
                           W/O. S.CHANDRASHEKHAR,
                           AGED ABOUT 70 YEARS, OCC. RETD. TEACHER,
                           R/O. VICKY'S SCHOOL COMPOUND, VIDYANAGAR,
                           KOLAGAL ROAD, BALLARI-583101.
                                                                    ...PETITIONERS
                      (BY SRI LINGESH V. KATTEMANE, ADVOCATE)
                      AND:
Digitally signed by
MALLIKARJUN           B.MOHAN MURALI S/O. B.GURAPPA,
RUDRAYYA              AGED ABOUT 58 YEARS, OCC. BUSINESSMAN,
KALMATH
Location: HIGH
                      R/O. H.NO.7, MIG-2, KHB COLONY, NETHAJI NAGAR,
COURT OF              CANTONMENT, BALLARI-583104.
KARNATAKA
                                                                       ...RESPONDENT
                      (BY SRI V. SHIVARAJ HIREMATH, ADVOCATE)

                            THIS CRIMINAL REVISION PETITION IS FILED UNDER
                      SECTION 397 R/W. 401 OF CR.P.C., SEEKING TO CALL FOR
                      RECORDS AND SET ASIDE THE ORDER DATED 19.03.2022 PASSED
                      BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE (COMMERCIAL
                      COURT), BALLARI IN CRL. APPEAL NO.4/2022 BY CONFIRMING THE
                      ORDER OF CONVICTION AND SENTENCE PASSED BY 1ST ADDL. CIVIL
                      JUDGE AND JMFC, BALLARI IN C.C.NO.508/2017 DATED 07.12.2021
                      FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT
                      BY ALLOWING THIS PETITION.
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                                        NC: 2025:KHC-D:4273
                                  CRL.RP No. 100213 of 2022




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




                         ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

Heard Sri Lingesh V. kattimane, learned counsel for

revision petitioners and Sri V. Shivaraj Hiremath, learned

counsel for respondent.

2. This revision petition is filed by the accused

who suffered an order of conviction for the offence

punishable under Section 138 of Negotiable Instruments

Act, 1881 (for short, 'the N.I.Act') in C.C.No.508/2017 by

considered judgment dated 07.12.2021 passed by the I

Additional Civil Judge and JMFC, Ballari, which was

confirmed in Crl.A.No.04/2022.

3. Facts in a nutshell for disposal of the revision

petition are as under:

A complaint came to be filed under Section 200 of

the Criminal Procedure Code (for short, 'the Cr.P.C.') with

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the jurisdictional magistrate alleging the commission

offence punishable under Section 138 of the N.I.Act., by

contending that accused persons were acquainted with the

complainant for last 20 years; in the said acquaintance,

they approached the complainant seeking financial

assistance to the tune of Rs.1,50,000/- for clearance of

debts. Earlier to the said transaction, they have borrowed

a sum of Rs.13,50,000/- on different occasions, totally

they have borrowed a sum of Rs.15,00,000/- from

complainant.

4. Towards the repayment, accused persons

issued a joint cheque bearing No.425326 dated

14.01.2017 for Rs.15,00,000/- drawn on Andhra Bank,

Vasavi School Branch, Ballari and requested the

complainant to present after two months.

5. Likewise, the complainant presented the

cheque on 10.04.2017, which came to be dishonored with

an endorsement "funds insufficient".

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6. A legal notice was issued to the complainant on

25.04.2017 calling upon repayment of the amount covered

under the cheque.

7. Though legal notice is duly served, accused

persons did not comply with the callings of notice and sent

an untenable reply on 17.05.2017. Therefore, the

complainant sought action against the accused persons for

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

8. Learned trial magistrate after completing

necessary formalities, summoned the accused persons and

recorded the plea. Accused pleaded not guilty. Therefore,

trial was held.

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

complainant got examined himself as P.W.1 and placed

record 11 documents, which were exhibited and marked as

EX.P.1 to P.11 comprising of dishonored cheque, signature

of accused persons, bank endorsement, postal receipts,

postal acknowledgment, reply notice, additional loan

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agreement, income tax return of the complainant,

Indenture receipt etc.

10. On conclusion of recording of complainant

evidence, accused statement as is contemplated under

Section 313 of the Cr.P.C., was recorded, wherein accused

persons have denied their liability under the cheque and in

respect of their contention, both the accused persons got

examined themselves as DW-1 and DW-2 and placed on

record a complaint said to have been lodged by them

against the complainant dated 27.10.2021, which was

marked as Ex.D.1.

11. On conclusion of recording of evidence of both

the sides, learned trial magistrate heard the arguments of

parties in detail and considered judgment dated

07.12.2021 convicted accused persons for the offence

punishable under Section 138 of the N.I.Act, and imposed

fine of Rs.15,50,000/- as against the cheque amount of

Rs.15,00,000/- of which sum of Rs.15,45,000/- was

ordered to be compensation and the balance sum of

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Rs.5,000/- is ordered to be appropriated towards

defraying expenses of the State.

12. Being aggrieved by the same, accused persons

preferred an appeal before the District Court in

Crl.A.No.04/2022.

13. Learned judge in the first appellate Court after

securing records, heard arguments of the parties in detail

and re-appreciation of material available on record,

dismissed the appeal by considered judgment dated

19.03.2022.

14. Being further aggrieved by the same, accused

persons are before this court.

15. Sri.Lingesh Kattemane, learned counsel for the

revision petitioners, reiterating the grounds urged in the

revision petition, vehemently contended that both the

courts have not properly appreciated the materials

available on record, especially the probative value of the

Ex.D.1, where under accused persons have filed complaint

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against the complainant and sought for allowing the

revision petition.

16. He also pointed that the materials available on

record is hardly sufficient to prove the lending capacity of

the complainant in a sum of Rs.15,00,000/- and therefore,

there is a misuse of the blank cheque issued by the

accused persons and said aspect of the matter is not

properly appreciated by the learned trial judge in the

impugned judgment; which was mechanically approved by

the learned judge in the first appellate court resulting in

miscarriage of justice and sought for allowing of the

revision petition.

17. Per contra, Sri V. Shivaraj Hiremath, learned

counsel for respondent-complainant supports the

impugned judgment by contending that the complainant

enjoys the presumption under Section 139 of the N.I.Act

and noticing the said presumption, though the accused

persons got themselves examined as DW.1 and DW-2

before the trial magistrate to rebut the presumption.

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18. But their evidence especially the answers

elicited in the cross examination would go to show that no

prudent person would allow the cheque to be misused and

effect of Ex.D-1 has been taken note and no further action

has been taken in pursuant to the Ex.D-1 and it shows

that Ex.D.1 is an afterthought only with an intention to

escape away from the rigors of law and thus, sought for

dismissal of the revision petition.

19. Having heard the parties in detail, this Court

perused the material on record meticulously.

20. On such perusal of the material on record,

Ex.P.1-cheque issued by accused persons and signed by

both of them being the joint account holders is not in

dispute. Cheque came to be dishonored with an

endorsement "funds insufficient".

21. Legal notice is duly served and in the reply

notice, accused persons have admitted that they have

issued the cheque in a sum of Rs.15,00,000/- and if 30

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days time is granted, they would pay the amount covered

under the dishonoured cheque.

22. In view of such admission, all ingredients are

required to establish the offence under Section 138 of

N.I.Act stands established with the aid of the presumption

available to the complainant under Section 139 of the N.I.

Act.

23. The rebuttal evidence placed on record did not

advance the case of the accused persons any further

insofar as Ex.D.1 is concerned and the same is not

brought to logical end.

24. Accordingly, learned trial judge and learned

judge in the first appellate Court recording the order of

conviction against the accused persons for the offence

punishable under Section 138 of the N.I.Act is just and

proper and requires no interference that too under the

revisional jurisdiction.

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25. Having said thus, the learned trial judge

imposing the fine of Rs.5,000/- towards the defraying

expenses of the State, out of the fine amount of

Rs.15,50,000/- is totally unwarranted as lis is privy to the

parties and no State machinery is involved. To that extent

impugned order needs interference.

26. In view of the forgoing discussions, following :

ORDER

(i) Criminal Revision Petition is allowed in part.

(ii) While maintaining conviction of the accused/revision petitioners for the offence punishable under Section 138 of Negotiable Instruments Act, sentence ordered by the trial magistrate confirmed by the first appellate Court in imposing fine Rs.15,50,000/- is reduced to Rs.15,45,000/-.

(iii) Entire sum of Rs.15,45,000/- is to be paid as compensation to the complainant. Failing which, the imprisonment ordered by learned trial magistrate shall be undergone by accused/revision petitioners.

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(iv) Sum of Rs.5,000/- imposed by the trial magistrate as defraying expenses of the State is hereby set aside.

(v) Office is directed to return the Trial Court records along with copy of this order.

Sd/-

(V.SRISHANANDA) JUDGE

AC CT:PA