Karnataka High Court
Mrs Leena M Lewis W/O M Michael J Lewis vs Mrs Bebi Anand Nagaralli on 11 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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CRL.RP No. 100403 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100403 OF 2024
(397(Cr.PC)/438(BNSS))
BETWEEN:
MRS. LEENA M. LEWIS W/O. M. MICHAEL J. LEWIS,
AGE: 37 YEARS, OCC. PROPRIETOR,
ASHIRWAD PRE SCHOOL (APS)
R/O. B-003, MADHURA COLONY,
KESHWAPUR, HUBBALLI-580023.
...PETITIONER
(BY SRI SANTOSH D. NARAGUND, ADVOCATE)
AND:
MRS. BEBI ANAND NAGARALLI
AGE: 62 YEARS, OCC. HOME MAKER,
R/O. NO.13, 1ST MAIN ROAD,
Digitally
signed by V
N BADIGER
KADASIDDESHWAR COLONY,
VN
BADIGER Date:
2025.03.21
10:36:07
KESHWAPUR, HUBBALLI-580023.
+0530
...RESPONDENT
(BY SRI HIRAN KUMAR PATIL, ADVOCATE FOR
SRI GOURI SHANKAR MOT, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.438
R/W. 442 OF BNSS, SEEKING TO SET ASIDE THE ORDER
PASSED IN CRL.A NO. 5068/2024 DATED 03.10.2024,
AGAINST THE ACCUSED BEFORE THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI,
AND SET-ASIDE THE JUDGMENT OF CONVICTION IN C.C. NO.
718/2012 PUNISHABLE UNDER SECTION 138 OF NI ACT DATED
10.04.2024, PASSED BY THE II ADDITIONAL CIVIL JUDGE AND
JMFC-III, HUBBALLI.
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CRL.RP No. 100403 of 2024
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.Santosh D. Nargund and Sri.Naveen Kumar
Patil, counsel for Sri.Gourishankar Mot.
2. Accused suffered an order of conviction for the
offence under Section 138 of Negotiable Instrument Act
(for short, 'N.I. Act') in CC No.718/2022 confirmed in
Crl.A. No.5068/2024 is the revision petitioner.
3. Facts in the nutshell for disposal of the revision
petitioner are as under:
3.1 In respect of the legally recoverable debt namely
repayment of the investment made by the complainant,
accused said to have issued two cheques which were
marked as Ex.P2 and P3 in a sum of Rs.24,15,000/-.
Those cheques on presentation came to be dishonoured.
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Signatures in both the cheques is not in dispute as is
admitted by DW1 in the cross examination.
3.2 Legal notice issued intimating the dishonour of
the cheques and calling for the payment covered under
the cheques, have been marked as exhibit P6, hand loan
agreement is marked as exhibit P8. There was no
compliance to the callings of notice and postal cover
returned to the complainant is also marked as exhibit P7.
3.3 Learned trial judge after considering the
probative value of the oral and documentary evidence
placed on record convicted the accused for the offence
punishable under section 138 of the N.I. Act in a sum of
Rs.23,75,625/- of which a sum of Rs.23,70,000/- was
ordered to be paid as compensation to the complainant
and balance amount of Rs.5,625/- towards the defraying
expenses of the State.
4. Being aggrieved by the same, accused filed an
appeal in Crl.A.No.5068/2024 before the District Court.
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Learned Judge in the First Appellate Court after securing
the records heard the arguments of the parties in detail
and by considered judgment dated 03.10.2024 dismissed
the appeal.
5. Thereafter, the accused is before this Court in
this revision petition.
6. There was an interim order passed by this Court
directing to deposit 50% of the fine amount. Till today, the
revision petitioner has not deposited the said amount. As
such, at request of counsel for revision petitioner, the
matter is heard on the merits.
7. Sri Santhosh Malagoudar, learned counsel for
the revision petitioner, reiterating the grounds urged in
the revision petition contended that complainant failed to
make out a case of legally recoverable debt under Ex.P-1
and P-2.
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8. He would further contend that the probative
value of Ex.D1 is not considered by both the Courts while
passing the impugned order.
9. He would further contend that since there was
no legally recoverable debt covered under Exs.P1 and P2
and profit has already been shared by the accused to the
complainant, hardly there was any scope for recording an
order of conviction for the offence punishable under
Section 138 of N.I. Act and sought for allowing the
revision petition.
10. Per contra, Sri Hiran Kumar Patel on behalf of
Sri Gouri Shankar Mot, learned counsel for respondent
supports the impugned orders.
11. He would further contend that the complainant
enjoyed the presumption under Section 139 of the N.I. Act
and Ex.P-8 being the hand loan agreement, the
contentions urged on behalf of the revision petitioner
cannot be countenanced in law.
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12. He would also contend that rebuttal evidence in
the form of oral testimony of DW-1 and the document
marked at Ex.D-1 would not be sufficient enough to rebut
the presumption available to the complainant under
Section 139 of the N.I. Act and as such, revision petition is
meritless and sought for dismissal of the revision petition.
13. Having heard the parties in detail, this Court
perused the material on record meticulously.
14. On perusal of the material on record, it is seen
that the signatures found in Exs.P-2 and P-3 is not in
dispute. Admittedly, Exs.P-2 and P-3 belongs to the
accused. Further, material documents namely copy of the
legal notice and loan agreement would probablize the case
of the complainant that cheques were issued for legally
recoverable debt.
15. When once the cheque is admitted and
signature found therein is not disputed, complainant
enjoys the presumption including the consideration under
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the cheques and it is issued for legally recoverable debt,
under Section 139 of NI Act.
16. No doubt, it is a rebuttable presumption. In
order to rebut such presumption, accused got examined
herself as DW-1. In her evidence, she tried to dispute the
signatures. She also tried to establish before the Court the
fact that there is no legally recoverable debt covered
under Exs.P-2 and P-3.
17. To substantiate the same, she further deposed
that a sum of Rs.21,00,000/- that was transferred by the
complainant through RTGS to the bank account has
reached the account of the school and not to the personal
account of the accused.
18. Further, in her cross-examination she admits
that signature found in vakalatnama and signature found
in Exs.P-2 and P-3 are one and the same. Therefore,
signature of the accused on Exs.P-2 and P-3 stands
established.
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19. Further, she has admitted that the receipt of
Rs.21,00,000/- but tried to impress upon the Court that it
has gone to the school account and therefore, she is not
liable, cannot be countenanced in law inasmuch as she is
the proprietor of the school.
20. Since the payment of Rs21,00,000/- is
admitted, it is for her to say as to why she did not return
the amount. Accused-revision petitioner tried to contend
before the Court that it was an investment and not the
loan. Therefore, the complainant is not entitled for refund
of the same as complainant has paid the said amount on
the ground that complainant would be made as Chairman
to the school.
21. It is also elicited in the cross-examination that
part of the amount is paid as profit. Learned Trial
Magistrate taking into consideration all these aspects of
the matter, while recording the conviction, ordered a sum
of Rs.23,75,625/- as against the cheque amount of
Rs.24,15,000/-. Out of which, a sum of Rs.23,70,000/-
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was ordered to be paid as compensation to the
complainant and balance sum of Rs.5,625/- to be
appropriated towards the defraying expenses of the State.
22. Since the cheques are in not in dispute and
signatures found therein are not in dispute and amount
said to have been given by the revision petitioner has
been given due deduction by the learned Trial Magistrate
in the impugned order, same has been rightly re-
appreciated by the learned Judge is in the First Appellate
Court. Therefore, under the limited revisional jurisdiction,
this Court has re-considered the material on record and
does not find any good grounds to interfere with the order
of conviction.
23. Having said so, it is noticed that lis is privy to
the parties and no State machinery is involved. Therefore,
imposing fine of Rs.5,625/- towards defraying expenses of
the State cannot be countenanced in law, which needs to
be set aside.
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24. Accordingly, the following order is passed.
ORDER
(i) Criminal Revision Petition is allowed in part.
(ii) While maintaining the order of conviction of
the accused for the offence punishable
under Section 138 of Negotiable Instrument
Act, fine amount ordered by the learned
Trial Magistrate confirmed by the First
Appellate Court is modified in a sum of
Rs.23,70,000/-.
(iii) Entire amount of Rs.23,70,000/- is order to
be paid as compensation to the
complainant under due identification.
(iv) Time is granted to make the payment till
15.04.2025.
(v) Failure to make the payment, the accused
shall undergo simple imprisonment for a
period of one year.
(vi) Sum of Rs.5,625/- ordered by the learned
Trial Magistrate confirmed by the First
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Appellate Court towards defraying expenses
of the State is set aside.
(vii) The amount in deposit is ordered to be
withdrawn by the complainant under due
identification.
Office is directed to return the Trial Court records
with a copy of this order for issuing modified conviction
order.
SD/-
(V.SRISHANANDA)
JUDGE
HMB- Up to para 4.
NAA- Para 5 to end.
CT:PA
