Karnataka High Court
Sri G Jayaprakash vs Sri D Vijay on 22 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ND
R
DATED THIS THE 22 DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.400/2016
C/W
CRIMINAL APPEAL NO.323/2019
CRIMINAL REVISION PETITION NO.401/2016
IN CRIMINAL REVISION PETITION NO.400/2016:
BETWEEN:
SRI. D. VIJAY
S/O LATE SRI. DORESWAMY
AGED ABOUT 45 YEARS
R/AT NO.117,
13TH 'A' MAIN ROAD
BINNY LAYOUT, 2ND STAGE
BENGALURU-560 040.
... PETITIONER
(BY SRI. B.S.ANANTHA KRISHNA, ADVOCATE)
AND:
SRI. G. JAYAPRAKASH
S/O SRI. GODDATHIMMAIAH
AGED ABOUT 45 YEARS
R/AT NO.103
OPP. AMBA MAHESHWARI TEMPLE
NEAR SHUBODAYA KALYANA MANTAPA
2
KAMAKSHIPALYA
BENGALURU-560 079.
... RESPONDENT
(BY SRI. RAVINDRA P., AND
SMT. HIRANMAYI, ADVOCATES)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
CONFIRMATION OF JUDGMENT IN CRL.A.NO.1257/2014, DATED
01.01.2016 ON THE FILE OF THE LVIII ADDL. CITY CIVIL AND
SESSIONS JUDGE AT BENGALURU AND DATED 07.10.2014 IN
C.C.NO.10885/2012 ON THE FILE OF THE XXII ACMM,
BENGALURU AND ETC.
IN CRIMINAL APPEAL NO.323/2019:
BETWEEN:
SRI. G. JAYAPRAKASH
S/O GODDATHIMMAIAH
AGED ABOUT 45 YEARS
R/AT NO.103,
OPP. TO AMBHA MAHESHWARI TEMPLE
NEAR SHUBODAYA KALYANA MANTAPA
KAMAKSHIPALYA
BENGALURU-560 079. ... APPELLANT
(BY SRI. RAVINDRA P., AND
SMT. HIRANMAYI, ADVOCATES)
AND:
SRI. D. VIJAY S/O DORESWAMY
AGED ABOUT 45 YEARS
R/AT NO.117, 13TH 'A' MAIN ROAD
BINNY LAYOUT, 2ND STAGE
BENGALURU-560 040. ... RESPONDENT
(BY SRI. H. MAHESH KUMAR, ADVOCATE)
3
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
ACQUITTAL DATED 14.01.2019 PASSED BY THE XXIII ACMM,
BENGALURU IN C.C.NO.5845/2013 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENTS ACT AND ETC.
IN CRIMINAL REVISION PETITION NO.401/2016:
BETWEEN:
SRI. D. VIJAY
S/O LATE SRI DORESWAMY
AGED ABOUT 45 YEARS
R/AT NO.117, 13TH 'A' MAIN ROAD
BINNY LAYOUT, 2ND STAGE
BENGALURU-560 040.
... PETITIONER
(BY SRI. B.S.ANANTHA KRISHNA, ADVOCATE)
AND:
SRI. G. JAYAPRAKASH
S/O SRI. GODDATHIMMAIAH
AGED ABOUT 45 YEARS
RESIDING AT NO.103
OPP. TO AMBA MAHESHWARI TEMPLE
NEAR SHUBODAYA KALYANA MANTAPA
KAMAKSHIPALYA
BENGALURU-560 079.
... RESPONDENT
(BY SRI. RAVINDRA P., AND
SMT. HIRANMAYI, ADVOCATES)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
CONFIRMATION OF JUDGMENT IN CRL.A.NO.1256/2014, DATED
4
01.01.2016, ON THE FILE OF THE LVIII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-59) AND DATED
07.10.2014 IN C.C.NO.19940/2012, ON THE FILE OF THE XXII
ACMM, BENGALURU AND ETC.
THESE PETITIONS AND APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 11.03.2025. THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
The Crl.R.P.Nos.400/2016 and 401/2016 are filed by the
accused challenging the judgment of conviction dated
07.10.2014 in C.C.Nos.10885/2012 and 19940/2012 and
confirmation of the judgment dated 01.01.2016 in
Crl.A.Nos.1257/2014 and 1256/2014.
2. The Crl.A.No.323/2019 is filed by the complainant
challenging the judgment of acquittal dated 14.01.2019 passed
in C.C.No.5845/2013 for the offence punishable under Section
138 of N.I.Act.
3. The parties in all the matters are one and the same.
Heard the learned counsel appearing for the respective parties in
all the cases.
5
4. The factual matrix of the case of the complainant in
C.C.Nos.10885/2012 and 19940/2012 is that there was a
memorandum of understanding dated 30.11.2011, thereby, both
of them have entered into a settlement. In view of the said
settlement, the accused has acknowledged and ratified his act of
borrowing hand loan from the complainant of Rs.20 lakhs to over
come the financial loss suffered by him in the industrial unit.
The complainant approached the accused on several time for
repayment of said loan amount and the accused issued three
cheques bearing Nos.412501 dated 15.09.2011 for
Rs.10,75,000/- drawn on Sham Rao Vital Co-operative Bank
Limited, Basaveshwaranagar, Bengaluru. The said Cheque
returned for insufficient funds in the bank account of the
accused. Thereafter, the complainant persuaded the accused to
pay the amount, but, the accused went to the police station and
filed a false complaint before Vijayanagar police station and also
Kamakshipalya police station and thereafter, conciliation done in
the police station and thereby both of them agreed for
settlement and accordingly, the accused agreed to pay a sum of
Rs.15 lakhs and issued three cheques to the said amount such
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as two cheques for Rs.3 lakhs each dated 30.12.2011 and
27.02.2012 respectively and another Cheque for Rs.9 lakhs
dated 30.04.2012.
5. It is also the case of the complainant that apart from
issuance of three cheques, the accused also executed an on
demand promissory note and consideration receipt in three
numbers. The complainant presented the Cheque bearing
No.412506 dated 30.12.2011 and Cheque bearing No.412507
dated 27.02.2012 for Rs.3 lakhs each and the said Cheques were
dishonoured for want of sufficient fund. Thus, the complainant
issued a legal notice to the accused and even after service of
notice, the accused failed to repay the amount in both the cases.
InC.C.No.19940/2012, the accused sent an untenable reply to
the said notice and in C.C.No.10885/2012, the accused did not
reply to the notice. Therefore, the complainant filed the
complaints.
6. The Trial Court taken cognizance and secured the
accused and the accused did not plead guilty and claimed to be
tried. In order to prove the case of the complainant, he
7
examined himself as PW1 and also examined one witness as
PW2 in both the cases and got marked the documents at Ex.P1
to P12 in C.C.No.10885/2012 and Ex.P1 to P9 in
C.C.No.19940/2012. After completion of the evidence of the
complainant, the statement of the accused under Section 313 of
Cr.P.C was recorded. The accused denied the incriminating
statement made against him and he called upon to lead defence
evidence and the accused did not chosen to lead defence
evidence. The Trial Court having considered both oral and
documentary evidence placed on record convicted the accused
for the offence punishable under Section 138 of N.I.Act and
sentenced to pay a fine of Rs.3,05,000/- in both the cases.
7. Being aggrieved by the said judgments of conviction
and sentence, two appeals were filed in Crl.A.Nos.1257/2014
and 1256/2014 and common grounds are urged in both the
appeals contending that the Trial Court failed to consider that
the presumption is a rebuttable presumption and in the instant
case, though an application was filed under Section 311 of
Cr.P.C, the same was rejected by the Trial Court and on the very
8
same day, the judgment was pronounced in order to defeat the
legitimate right. It is also contend that the complainant made
an illegal claim from the accused hand in glove with the
Kamakshiplaya police. The Trial Court ought to have looked into
complaint averments which makes it clear that the earlier three
cheques alleged to issued by the appellant was totally amounting
to Rs.23 lakhs and earlier Cheque of Rs.10,75,000/- was
presented by the complainant and it was dishonoured for lack of
funds and if really, the accused having liability, then the
complainant could have file the PCR against the dishonour of the
said Cheque itself, but the complainant did not chosen to file the
PCR and thereafter, collusion with the police, the complainant
took the three alleged cheques from the accused. The Trial
Court failed to consider that the alleged amount of loan lent by
the complainant was Rs.20 lakhs. But the alleged memorandum
of agreement shows that the amount alleged to have agreed
between the parties is Rs.15 lakhs. Hence, what made the
complainant to waive large amount of Rs.5 lakhs. Subsequently,
it is stated that the alleged loan lent was Rs.20 lakhs and three
cheques were issued totally amounting to Rs.23 lakhs and
9
hence, why a sum of Rs.3 lakhs was agreed to be paid is not
forthcoming. The explained discrepancies clearly shows that the
appellant has not committed any offence as alleged and even the
complainant also failed to prove the commission of offence by
the accused.
8. The First Appellate Court in both the appeals having
considered the grounds urged which are common in nature,
formulated the point that whether the appellant has made out
grounds to show that the judgment of the Trial Court is illegal,
erroneous, perverse and thereby calls for interference by this
Court. The First Appellate Court considering the main contention
of the accused that he was not given sufficient opportunity and
particularly taking note of order sheet dated 01.09.2014 wherein
it discloses that when the case was posted for judgment, on that
day, the accused filed the application to recall PW1 and that
application was allowed vide order dated 12.09.2014.
Thereafter, the accused was given an opportunity to cross
examine PW1 on three times. However, the accused did not
chosen to cross examine. Again, that on 23.09.2014, the case
10
was posted for judgment. On that day also, accused filed an
application under Section 311 of Cr.P.C to recall PW1 and that
application was rejected on the ground that the Trial Court has
given opportunity to the accused to go on with the cross-
examination of PW1 but the accused did not avail the said
opportunity. Hence, the contention of the accused that
opportunity was not given was not accepted. The same was
discussed by the First Appellate Court in paragraph 15 of its
judgment.
9. The factual aspects of both the cases were discussed
in paragraph 16 of the judgment by the First Appellate Court
with regard to the acquaintance between the complainant and
accused and also taken note of the fact that accused asked the
complainant to pay a sum of Rs.20 lakhs and accordingly, the
complainant along with one Janardhan had gone to the house of
the accused and paid a sum of Rs.20 lakhs and on the same day,
accused issued three cheques. The complainant also examined
the said Janardhan as PW2 wherein he deposed that he had
gone to the house of the accused along with the complainant
11
and the complainant paid a sum of Rs.20 lakhs to the accused
and the accused issued three cheques. Having taken note of the
evidence of PW1 and PW2, the First Appellate Court, a
suggestion was made to PW2 that accused was not a student of
the complainant and the same was denied. The other defence
that forcibly the complainant took the subject matter of Cheque.
Butthe complainant in order to disprove the said contention, he
relied upon the document of memorandum of understanding
which is marked as Ex.P2, the legal notice at Ex.P5 and accused
not given any reply to the legal notice in C.C.No.10885/2012
and in C.C.No.19940/2012, the accused replied to the notice in
terms of Ex.P7. In the said reply also the accused admitted that
he had borrowed a sum of Rs.10 lakhs from the complainant for
his business development. Having considered the same, the
First Appellate Court comes to the conclusion that there was a
transaction between the complainant and the accused and
hence, the accused cannot take the defence that he not at all
borrowed the amount from the complainant. When the accused
himself admitted for having received the amount of Rs.10 lakhs,
he cannot raise the issue of source of income of the complainant
12
and also a suggestion was made that the complainant and the
accused were doing real estate business and it has to be
considered that complainant had the amount to pay to the
accused. The First Appellate Court comes to the conclusion that
the Trial Court having considered the material on record drawn
the presumption under Section 138 of N.I. Act since there is no
rebuttal evidence and no plausible evidence is placed and
confirmed the judgments of the Trial Court. Being aggrieved by
the concurrent finding of both the Courts, the present two
revision petitions are filed before this Court.
10. The main contention of the counsel for the revision
petitioner in both the revision petitions that the complainant has
not conclusively proved beyond iota of doubt by producing
cogent evidence by way of documentary proof and just because
there is a memorandum of understanding between the parties, it
cannot be believed that the complainant could have lent money
during the relevant period. It is also contend that principle of
natural justice was denied in not giving an opportunity to cross-
13
examine the complainant and he was not having capacity to lend
such huge amount.
11. The main contention of the accused that he has
issued the Cheque as security for money paid holding that
complaint is not maintainable. The burden shifted on the
complainant since the accused has rebutted the case that he has
given back the said chit amount and there is no case for the
respondent/complainant to initiate the proceedings under
Section 138 of N.I. Act. The counsel also contend that the
impugned order passed by both the Courts are perverse since
the respondent admitted in the cross-examination that the
cheques are issued as a security for repayment and on this
ground alone, the impugned orders are liable to be set aside as
illegal.
12. The counsel also brought to notice of this Court the
evidence of PW1 in C.C.No.10885/2012 wherein he categorically
admitted that on the date of payment only he had obtained three
cheques and he made the payment on 02.06.2008. In the
cross-examination, PW2 says that at the time of lending the
14
money, PW1 took him to the house of the accused and he does
not know anything about the transaction except payment of the
amount. Further he admits that he was taken to Kamakshiplaya
police station by the complainant but he does not know to read
and write English. The counsel referring the evidence of PW1
and PW2 contend that evidence of PW1 and PW2 does not
inspire the confidence of the Court with regard to the transaction
and payment of Rs.3 lakhs is concerned.
13. The counsel also brought to notice of this Court the
evidence of PW1 in C.C.No.19940/2012. PW1 was subjected to
cross-examination wherein also he admits that amount was paid
on 02.06.2008 and subject matter of cheques were given on the
every same day. In the said case also one witness is examined
as PW2 and similar answer elicited from the mouth of PW2 that
he does not speak anything about the document at Ex.P2 and he
only speaks about payment of money. He is also one of the
witness of the document at Ex.P2.
14. The counsel in support of his arguments, relied upon
the judgment of this Court passed in Crl.A.No.200057/2016
15
delivered in Kalaburagi Bench on 17.12.2020. The counsel
referring this judgment would vehemently contend that this
Court relied upon the Full Bench judgment of Kerala High Court
in CHACKO VARKEY vs THOMMEN THOMAS reported in
AIR 1958 KER 31 and contend that explanation must be in
respect of Section 138 of N.I. Act, such as a legally enforceable
debt or other liability and a Cheque given in discharge of a time
barred debt will not constitute an unconditional undertaking and
promise in writing either expressly or impliedly so as to attract a
criminal liability under Section 138 of N.I. Act and the said
judgment was elaborated in Sasseriyil Josesph's case which
was affirmed by the Apex Court.
15. The counsel also relied upon the judgment of
Sasseriyil Josesph's case reported in LAWS (KER)-2000-9-
21 in the case of SESSERIYIL JOSEPH vs DEVASSIA and the
counsel referring this judgment also would vehemently contend
that the alleged two time barred pronotes, the accused has paid
interest on various dates and thereby, the pronotes have not
become time barred and the Kerala High Court also held that
16
time barred debt is not a legally enforceable debt and confirmed
the judgment of the Sessions Court in coming to the conclusion
that there is no infirmity. The confirmation order is also
produced before the Court passed by the Apex Court in
SPECIAL LEAVE TO APPEAL (CRL.) No.1785/2001 vide
order dated 10.09.2001.
16. The counsel also relied upon the judgment reported
in (2009) 2 SCC 513 in the case of KUMAR EXPORTS vs
SHARMA CARPETS regarding presumption and discussion was
made that presumption how to be displaced and declaration was
made by the complainant himself to the Sales Tax Department
that no sale had taken place and accepted as a valid proof that
cheques were not issued by accused in discharge of any debt or
liability to complainant. Further held that Section 118 and 139
of N.I. Act will come into existence as soon as complainant
proves that the negotiable instruments was executed by the
accused. The counsel referring this judgment would vehemently
contend that unless the cheques are proved which were issued
towards the debt, question of presumption does not arise.
17
17. The counsel also relied upon the judgment reported
in (2008) 4 SCC 54 in the case of KRISHNA JANARDHAN
BHAT vs DATTATRAYA G HEGDE with regard to the
presumption is concerned wherein it is held that presumption of
innocence of accused is a human right.
18. The counsel also relied upon the judgment reported
in 2007 SCC ONLINE AP 975 in the case of G VEERESHAM vs
S SHIVA SHANKAR AND ANOTHER and in that judgment it is
held that the very fact that complainant has not placed on record
any material to speak about lending of Rs.40,000/- as hand loan
to the first respondent/accused and the same is sufficient to
infer that the first respondent/accused is able to rebut the
presumptions available in favour of the appellant/complainant
under Sections 118 and 139 of the N.I. Act.
19. The counsel also relied upon the judgment reported
in SLP(Crl) 8641/2018 dated 09.04.2019 in the case of
BASALINGAPPA vs MUDIBASAPPA. The counsel referring
this judgment brought to notice of this Court the discussion
18
made in paragraph 17 in respect of KUMAR EXPORTS's case
referred supra and in paragraphs 18 to 20, it is held that Section
139 of the Act is an example of a reverse onus and the test of
proportionality should guide the construction and interpretation
of reverse onus clauses on the defendant-accused and the
defendant-accused cannot be expected to discharge on unduly
high standard of proof.
20. The counsel referring these judgments would
vehemently contend that there cannot be an order of conviction
and confirmation as against the time barred debt since, it was
the transaction of the year 2008 and earlier cheques are also
given of the year 2011 and subsequent document of Ex.P2 is
also of the year 2011 i.e., after three years of the earlier
advancement of loan. The counsel would vehemently contend
that there is no dispute with regard to the issuance of Cheque is
concerned but memorandum of understanding came into
existence in the presence of the police and reference in Ex.P2
also clear that on the intervention of police only this document
came into existence and even no defence evidence was adduced,
19
thus, it is clear that alleged loan is time barred debt and hence,
same cannot be recovered.
21. The other appeal filed by the appellant/complainant
in Crl.A.No.323/2019 is against the order of acquittal in respect
of the Cheque for an amount of Rs.9 lakhs. The case of the
complainant before the Trial Court that in view of memorandum
of understanding dated 30.11.2011, both the complainant and
the accused were party in the said agreement. In view of the
said settlement, the accused duly acknowledged and ratified his
act of borrowing of hand loan of Rs.20 lakhs from the
complainant to over come the financial loss suffered by him in
the industrial unit. It is also contend that the accused had
availed loan earlier and issued cheques and consequent upon
dishonour of Cheque issued by the accused, among three
cheques, only one Cheque was presented for Rs.10,75,000/- and
same was dishonoured and when the complainant made an
effort to persuade to get back his money, accused himself
approached the police and lodged a false complaint before the
Vijayanagar police station and Kamakshipalya police station and
20
conciliation was made and consequently, issued three cheques
admitting the liability of Rs.15 lakhs and the present Cheque is
for Rs.9 lakhs dated 30.04.2012 and when the same was
presented, the same was dishonoured with an endorsement
'funds insufficient' and hence, issued the legal notice and the
accused gave reply denying the contents of the notice and failed
to pay the money and hence, filed the private complaint before
the Court.
22. After filing of private complaint, the Trial Court took
the cognizance and accused was secured and he did not plead
guilty and hence, the complainant examined himself as PW1 and
got marked the documents at Ex.P1 to P9 and subjected for
cross-examination. After recording the statement of the accused
under Section 313 of Cr.P.C, accused himself examined as DW1
and got marked the documents at Ex.D1 to D7 and also
subjected for cross-examination.
23. The Trial Court having considered both oral and
documentary evidence placed on record acquitted the accused
considering the evidence of PW1 wherein it is observed that why
21
he denied when Kamakshipalya police have called him to the
station on 13.11.2011. He also denied the settlement entered
before the police, but he deposed that inspite of payment of
Rs.23 lakhs, settled the matter for Rs.15 lakhs saying that the
elder persons were met him to agree for the same, who is none
other than one Anilkumar. But in order to show that the said
Anilkumar was intervened in the matter for conciliation and
settled the dispute for Rs.15 lakhs and Ex.P2-Cheque was given
for Rs.9 lakhs, the complainant not chosen to examine the said
Anilkumar. Though PW1 deposed as such, it is him to produce
the necessary documents with regard to the loan transaction of
Rs.20 lakhs is concerned. Having taken note of transaction, the
Trial Court comes to the conclusion that it was time barred
transaction since transaction took place on 02.06.2008 and there
was effort made by the complainant to prepare Ex.P1 in the
name of conciliation before the police since accused has denied
Ex.P1 and it has to be considered that Ex.P1 was not prepared or
entered into between the complainant and accused, not accepted
the document of Memorandum of Understanding and the Trial
Court held that the complainant separately obtained the cheques
22
apart from memorandum, pronote and other documents, but the
same have been misused one after another and made the
parties to suffer by filing continuous litigation one after another.
Hence, the Trial Court not accepted the case of the complainant
and acquitted the accused for the offence punishable under
Section 138 of N.I.Act. Hence, the present appeal is filed by the
complainant challenging the said judgment before this Court.
24. The learned counsel for the appellant/complainant in
his arguments would vehemently contend that the very approach
of the Trial Court in acquitting the accused is erroneous. The
Trial Court also erred in giving more importance to the
memorandum of understanding which came into picture from the
intervention of the police. When the police have settled the
matter, the issuance of cheques and other documents creates
doubt regarding the free will of the parties who entered into the
settlement. Moreover, the accused has denied its existence,
preparation and execution including the signature. The Trial
Court on its own absorbed that the settlement between the
complainant and the accused as per Ex.P1 is not satisfactorily,
23
therefore, it made it clear that under the coercion, Ex.P1 came
into force. Therefore, complainant cannot take the benefit of the
same. This approach of the Trial Court is erroneous. The Trial
Court drawn the presumption relying upon the judgment
reported in AIR 2007 NOC 2612 A.P. (G. VEERESHAM vs
SHIVASHANKAR AND ANOTHER) about the presumption
available to the complainant under Section 118 and 139 of
N.I.Act. The counsel also would vehemently contend that Section
139 of the N.I. Act provides that it shall be presumed, unless the
contrary is proved. The counsel also would vehemently contend
that as soon as the complainant discharges the burden to prove
that the instruments as executed by the accused, the burden
shifts on the accused and the accused did not choose to rebut
the evidence of the complainant.
25. The counsel also would vehemently contend that the
Trial Court erroneously considered the material on record when
the document of agreement was in existence. But the fact that
he had issued the fresh cheques in terms of the settlements
arrived between the parties. The very approach of the Trial
24
Court that the accused himself entered into the witness box and
placed the documents at Ex.D1 to D7 which probabilize the case
of the accused is erroneous. The Court below without applying
its mind, comes to an erroneous conclusion and the Trial Court
not appreciated the complainant's evidence as per Ex.P4 and P6
and Ex.P6 is totally different and the same was narrated in the
affidavit evidence and no document is produced in support of his
defence. The counsel also would vehemently contend that the
Trial Court in other two cases in respect of the very same
agreement and issuance of cheques, already convicted the
accused and confirmed the same in the appeal and revision is
filed before this Court and the said revisions also connected to
this appeal. The document at Ex.D2 to D4 which are crated
documents and those are purchased by the accused himself and
those documents are relied upon by the Trial Court. The counsel
also would vehemently contend that the Trial Court committed
an error in relying upon the Krishna Janardhan Bhat's case
and very approach of the Trial Court is erroneous and it requires
interference of this Court.
25
26. The counsel for the appellant and respondent would
vehemently contend that in both the revision petitions, the
citations relied upon by the petitioners are not applicable to the
facts of the case on hand.
27. The counsel relies upon the judgment reported in
(2002) 1 SCR 906 in the case of A.V. MURTHY vs B.S.
NAGABASAVANNA and referring this judgment the counsel
would vehemently contend that at the stage of issuance of
summons, it was clearly illegal and erroneous to say that
cheques drawn by the respondent in respect of debt or liability
was not legally enforceable.
28. The counsel also relied upon the judgment reported
in (2023) 14 SCR 412 in the case of K HYMAVATHI vs THE
STATE OF ANDHRA PRADESH AND ANOTHER and contend
that if the cheque is issued in respect of debt and defence of
barred by limitation will be decided on evidence.
29. The counsel also relied upon the document of the
complaint given by the respondent/accused himself to the Joint
26
Commissioner of Police, Bengaluru on 10.11.2011 wherein he
categorically admits that he made the payment of Rs.7 lakhs on
15.09.2011 and hence, the transaction is admitted and only
complaint of harassment was given and when the accused
himself approached the police, matter was negotiated with the
police and the document of memorandum of agreement came
into existence and in the said document itself he has admitted
that he has to give only Rs.7 lakhs but the complainant
demanded or Rs.23 lakhs and same is unimagined and the said
document is also marked in C.C.No.5845/2013 as Ex.D7. Hence,
it is clear that the accused himself gave the complaint with the
Joint Commissioner of Police as well as Vijayanagar police station
and Kamakshipalya police station and document came into
existence. Unde such circumstances, the Trial Court ought not to
have disbelieved the document.
30. The counsel also relied upon the judgment of this
Court passed in CRL.R.P.NO.244/2011 dated 25.03.2022
wherein this Court discussed in detail regarding enhancement of
compensation is concerned and the amount was Rs.65,12,000/-
27
based on the document at Ex.P2 to P5 and other documents and
the Trial Court sentenced to pay an amount of Rs.97,68,000/-
.But in the case on hand, not passed any order for doubling the
amount, which is a substantive amount. The counsel would
vehemently contend that in two cases, only an amount of
Rs.3,05,000/- each was awarded as against Cheque of Rs.3
lakhs each and this judgment is applicable to the facts of the
case on hand for enhancement.
31. The counsel also relied upon the judgment of the
Apex Court reported in CRL.A.NO.1020/2010 in the case of
RANGAPPA vs SRI MOHAN and brought to notice of this Court
discussion was made particularly in respect of Krishna
Janardhan Bhat's case referred supra which has been relied
upon by the respondent's counsel wherein it is held that the said
judgment in conflict with the statutory provisions as well as an
established line of precedents of this Court and same was
overruled and also Apex Court in the said judgment regarding
presumption is concerned, when the accused admits the
signature on the Cheque though contend that cheques are taken
28
forcible but the same has not been explained. The counsel also
would vehemently contend that no complaint was given though
he alleged that cheques are taken forcibly.
32. The counsel also relied upon the judgment of the
Apex Court reported in (2019) 2 SCR 24 in the case of BIR
SINGH vs MUKESH KUMAR wherein also discussion was made
in respect of Section 139 of N.I. Act as held that Section 139 of
N.I. Act is a presumption of law, as distinguished from
presumption of facts. Presumptions are rules of evidence and do
not conflict with the presumption of innocence, which requires
the prosecution to prove the case against the accused beyond
reasonable doubt. The obligation on the prosecution may be
discharged with the help of presumptions of law and
presumption of fact unless the accused adduces evidence
showing the reasonable possibility of the non-existence of the
presumed fact.
33. The counsel also relied upon the judgment reported
in (2021) 11 SCR 432 in the case of M/S GIMPEX PRIVATE
LIMITED vs MANOJ GOEL and the counsel referring this
29
judgment also would vehemently contend that in this judgment
it is categorically held that once a settlement agreement has
been entered into between the parties, the parties are bound by
the terms of the agreement and any violation of the same may
result in consequential action in civil and criminal law. It is also
held that in the present case, the first set of cheques which were
issued allegedly towards discharge of the liability under the
HSSA were dishonoured. The deed of compromise was entered
into thereafter on 12.03.2013. The deed of compromise was
partially implemented by the payment of an amount of Rs.3
crores by demand draft to the complainant. Upon the receipt of
an amount of Rs.3 crores, Gimpex Private Limited was to grant
its no objection to the plea of bail of 'MG'. 'MG' undertook to pay
the balance of Rs.7 crores within three months in installments.
The second set of Cheques which were issued pursuant to the
deed of compromise were also dishonoured. The breach of the
deed of compromise has arisen due to the dishonoure of the
cheques which are issued by the accused towards discharge of
the remaining balance and Section 139 of the N.I. Act raises the
presumption unless the contrary is proved that the holder of a
30
cheque receives the cheque of the nature referred to in Section
138 for the discharge, in whole or in part, of any debt or liability,
unless the contrary is proved, the Court cannot comes to other
conclusion.
34. The counsel also relied upon the judgment of the
Apex Court reported in CRL.A.1902/2011 in the case of R
VIJAYAN vs BABY AND ANOTHER and referring his judgment
also would vehemently contend that when there is a conviction
there should be a consequential levy of fine of an amount
sufficient to cover the Cheque amount and interest thereof at a
fixed rate of 9% per annum interest, followed by award of such
sum as compensation from the fine amount. This would lead to
uniformity in decisions, avoid multiplicity of proceedings (one for
enforcing civil liability and another for enforcing criminal liability)
and achieve the object of Chapter XVII of the Act, which is to
increase the credibility of the instrument.
35. The counsel referring these judgments would
vehemently contend that the Trial Court committed an error in
comes to the conclusion that there was a agreement consequent
31
upon the statement between the parties and those cheques are
issued in respect of the liability, now cannot contend that same
is barred by limitation and referring these judgments would
vehemently contend that when presumption to be drawn in
favour of the complainant and liability is accepted and fresh
agreement was entered between the parties in view of the
judgment of A.V. MUTHRY's case as well as other judgments
referred supra, the appeal requires to be allowed and the
judgment of the Trial Court is required to be set aside by
allowing the complaint.
36. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on record,
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 revision petitioner
for the offence punishable under Section 138 of
N.I. Act in C.C.Nos.10885/2012 and
19940/2012?
32
2. Whether the First Appellate Court committed an
error in confirming the order of conviction and
sentence dated 01.01.2016 and whether it
requires interference of this Court by exercising
the revisional jurisdiction in
Crl.R.P.Nos.400/2016 and 401/2016?
3. Whether the Trial Court committed an error in
dismissing the complaint in acquitting the
accused in C.C.No.5845/2013 and whether this
Court can exercise the appellate jurisdiction in
coming to the conclusion that the finding of the
Trial Court is perverse and it requires to be set
aside?
4. What order?
Point Nos.1 to 3:
37. The issue of time barred debt is raised in all the
three cases. Hence, point Nos.1 to 3 are considered together for
consideration regarding the contention of liability is concerned as
well as all the cheques are issued connection with earlier
transaction as well as memorandum of agreement.
33
38. Having considered the grounds urged in the revision
petitions, the main contention of learned counsel for the revision
petitioner is that Courts below committed error in relying upon
the evidence of P.W.1 and failed to take note of the fact that
memorandum of understanding came into existence at the
intervention of Police. Learned counsel would also vehemently
contend that material disclose that according to the complainant,
transaction took place on 02.06.2008 and subsequently, fresh
cheques are issued on 30.12.2011 and also not disputes
issuances of Cheques, but only contention is that document of
memorandum of understanding cannot be relied upon and the
Trial Court in connected case not accepted the same and comes
to the conclusion that cheques have been issued in respect of
time barred debt and there cannot be any recovery and the
same is not legally enforceable debt.
39. Per contra, learned counsel for the respondent would
vehemently contend that very accused gave the complaint with
the Joint Commissioner of Police on 10.11.2011, wherein he
made an allegation that he made the payment of Rs.7,00,000/-
34
and complainant is harassing. In the very document, he has
admitted he has to pay the balance amount of Rs.6,00,000/-.
Hence, it is clear that there was transaction and admitting the
liability, fresh cheques are given which renews the liability and
now cannot contend that pro-note ought to have been on the
date of Cheque. Having considered these contentions and also
the judgments which have been relied upon, this Court has to
analyze the material on record.
40. The main contention of learned counsel for the
revision petitioner is that in the judgment of Basalingappa's
case referred supra, in detail discussion was made and contend
that when cheques are issued in respect of time barred debt,
there cannot be any legally recoverable debt. Learned counsel
also relied upon the judgment of this Court i.e., Kalaburagi
Bench in THE BIDAR URBAN CO-OPERATIVE BANK LTD. VS.
MR. GIRISH and referring this judgment would contend that
138 of the N.I. Act is attracted only if there is legally recoverable
debt and it cannot be said that time barred debt is legally
recoverable debt. The counsel also relied upon the judgment of
35
Kerala High Court in Sasseriyil Joseph's case and confirmation
made by the Apex Court and Kumar Exports's case regarding
presumption is concerned and so also the judgment of Krishna
Janardhan Bhat's case referred supra.
41. Having taken note of said contention also, the
judgment relied upon by learned counsel for the respondent-
complainant in A.V. Murthy's case, it is not in dispute that issue
of legally recoverable debt could be considered at the time of
considering the evidence on record. In the other judgment of
the Apex Court in K. Hymavathi's case, the Apex Court held
that said issue cannot be decided on merits and no dispute with
regard to this principle is concerned. Learned counsel also relied
upon the judgment of the Apex Court in Rangappa's case,
wherein at paragraph No.11, the Apex Court observed that Para
No.30 in Krishna Janardhan Bhat's case are in conflict with
the statutory provisions as well as an established line of
precedents of this Court. Hence, Krishna Janardhan Bhat's
case cannot be relied upon. The counsel also relied upon Bir
Singh's case with regard to presumption is concerned and it is
36
also settled law that unless the presumption is rebutted by
raising probable case, the case of the accused cannot be
accepted.
42. Learned counsel for the respondent relied upon the
judgment of M/s. Gimpex Private Limited's case, wherein
discussion was made by the Apex Court regarding levy arising
from the settlement agreement and in the facts of the case on
hand, the very contention is that settlement was arrived
between the parties, wherein the Apex Court held that parties
are bound by the terms of the agreement and any violation of
the same may result in consequential action in civil and criminal
law and also taken note of the fact that cheques were issued
towards discharge of liability were dishonoured and a deed of
compromise was entered into thereafter and part payment was
also made and held that second set of cheques issued towards
deed of compromise was also dishonoured and subsequent
settlement between the parties is also recognized.
43. This Court would like to rely upon the judgment of
this Court reported in ILR 2006 KAR 4242 reported in
37
H. NARASIMHA RAO VS. R. VENKATARAM, wherein this
Court held with regard to offence under Section 138 of N.I. Act,
repayment of time barred debt, issue of Cheque, whether
constitute an offence, held that since no fresh consideration is
required to pay the time barred debt, and there is no legal bar
for the debtor agreeing to pay the time barred debt, the
dishonoured cheques issued towards repayment of time barred
debt does constitute an offence under Section 138 of the Act,
order of acquittal is set aside. In this judgment, the judgment
which has been relied upon by the learned counsel for the
respondent in A.V. Murthy's case is relied upon in paragraph
No.11 and given finding based on the judgment of the Apex
Court, wherein discussion was made with regard to sub-section
(3) of Section 25 of the Indian Contract Act, 1872, a promise
made in writing and signed by the person to be charged
therewith, or by his agent generally or specially authorized in
that behalf, to pay wholly or in part a debt of which the creditor
might have enforced payment but for the law for the limitation of
suits, is a valid contract. This issue was also raised before
Division Bench of the Kerala High Court in Ramakrishnan's
38
case following the ratio laid down in A.V.Murthy's case, referred
supra considering Section 25 of the Indian Contract Act, 1872.
44. This Court also would like to rely upon the judgment
of Kerala High Court reported in 2003 SCC ONLINE KER 420 in
the case of DR. K.K. RAMAKRISHNAN VS. DR. K.K.
PARTHASARADHY & ANOTHER, wherein at paragraph No.14,
discussed with regard to Section 25(3) and also in paragraph
No.24 held that when person issues a cheque, he acknowledges
his liability to pay. In the event of the cheque being dishonoured
on account of insufficiency of funds he will not be entitled to
claim that the debt had become barred by limitation and that the
liability was not thus legally enforceable, he would be liable for
penalty in case the charge is proved against him.
45. This Court also relies upon the judgment of Delhi
High Court reported in 2024 SCC ONLINE DEL 6421 in the
case of RAJEEV KUMAR VS. STATE NCT OF DELHI AND
ANOTHER, also taken note of the judgment of the Apex Court in
S. NATARAJAN VS. SAMA DHARMAN reported in (2021) 6
SCC 413 which is discussed in paragraph No.24 and also
39
discussed the judgment of RANGAPPA VS. SRI MOHAN and
both A.V. Murthy's case as well as S. Natarajan's case so also
the judgment of Madras High Court in M. BALAJI VS. PERIM
JANARDHANA RAO reported in 2020 SCC ONLINE MAD
28058, wherein at paragraph No.60 of the said judgment
discussed with regard to Sub-section (3) of Section 25 of Indian
Contract Act deals with acknowledgement time barred debt.
Having considered the material in detail, in paragraph No.37, the
Apex Court held that furnishing of a Cheque of a time-barred
debt effectively resurrects the debt itself by a fresh agreement
through the deeming provision under Section 25(3) of ICA. The
original debt therefore, through Section 25(3) of the ICA,
becomes legally recoverable enforceable to the extent of the
amount the Cheque has been given. It is further held that by
the act of drawing a Cheque, the promisor i.e., the drawer, is
effectively stating that he has a liability to pay the drawee.
Drawing of the Cheque in itself, is acknowledgement of which
would trigger the provisions under Section 138 of NI Act. To
deny a complainant/drawee of invoking the penal provisions of
40
Section 25(3) of the ICA recognizing a fresh agreement to pay,
would be an unfortunate disentitlement.
46. This Court also relies upon the judgment of Apex
Court reported in (2021) 6 SCC 413 in the case of
S. NATARAJAN VS. SAMA DHARMAN AND ANOTHER,
wherein it is held that whether the debt was time-barred or not
can be decided only after the evidence is adduced, it being a
mixed question of law and fact. Further, in Cheque bouncing
cases, the initial presumption incorporated in Section 139 NI Act
favours the complainant and the accused can rebut the said
presumption and discharge the reverse onus by adducing
evidence.
47. This Court also relies upon the judgment of Punjab
and Haryana High Court reported in 2021 (2) ILR PUNJAB
AND HARYANA 671 in the case of SULTAN SINGH VS. TEJ
PARTAP, wherein it is held that a debt which has become time
barred can be enforced in case ingredients of Section 25(3) of
Contract Act are fulfilled. A Cheque in writing signed by the
persons issuing it would come squarely within the ambit of
41
Section 25(3) of the Contract Act as to make the debt legally
enforceable on the date on which Cheque is drawn. In
paragraph No.31, it is held that the issuance of a Cheque in
repayment of a time barred debt amounts to a written promise
to pay the said debt within the meaning of Section 25(3) of the
Contract Act and the said promise by itself would create a legally
enforceable debt or liability as contemplated by Section 138 of
the Negotiable Instruments Act.
48. This Court also relies upon the judgment of the Delhi
High Court reported in 2019 SCC ONLINE DEL 6711 in the
case of TARUN SAMDARSHI VS. STATE (NCT OF DELHI)
AND ANOTHER, wherein also in paragraph No.3, it is held that
the issuance of Cheque give rise to a presumption of the amount
being due and consequently an acknowledgement rendering the
plea of debt being time barred inconsequential.
49. Having considered the judgments of different High
Courts, the Apex Court as well as the judgments which have
been relied upon by learned counsel for the petitioner, the
judgment of this Court as well as Sasseriyil Joseph's case and
42
Kumar Exports's case will not come to the aid of the
complainant. Now, coming to the aspect of liability in all the
cases and presumptive value in respect of two revision petitions
is concerned, it is the main contention of learned counsel for the
revision petitioner that no opportunity is given and the same
ground was urged before the appellate Court and appellate Court
also turned down the said contention, since opportunity was
given and further opportunity given by the Trial Court was not
utilized by the revision petitioner, though cross-examined P.W.1
earlier and also subsequently, on account of no cross-
examination, it was taken as no further cross. No doubt, when
the case was set down second time for judgment, an application
was filed, the same was rejected and the fact that P.W.1 was
cross-examined earlier is not dispute.
50. It is also important to note that no defence evidence
was led before the Trial Court by the revision petitioner even
inspite of opportunity was given and no probable defence was
raised in both the cases regarding issuance of Cheque and not
disputed the signature on the document. But the only contention
43
is that subsequent Cheques are issued at the intervention of the
Police and document Ex.P9 is marked before the Trial Court in
C.C.No.5845/2013 and the very accused had approached the
Joint Commissioner of Police and when he had approached the
Police, Police have intervened between them. Hence, document
of memorandum of agreement came into existence, wherein the
accused categorically admitted the liability and issued fresh
Cheques i.e., subject matter of Cheques in all the three cases.
The document of Ex.P8 is also marked before the Trial Court for
having executed on demand promissory note, consideration
receipt in respect of Cheque for Rs.9,00,000/-. No doubt,
exhibits are interchanged while marking those documents before
the Trial Court, the same has been set right. When once the
Police intervened regarding dispute between the complainant
and the accused and document came into existence i.e.,
memorandum of agreement which is marked in all the cases,
now the accused cannot contend that the liability is time barred
liability and this Court in detail discussed the same and in view
of Section 25(3) of the Indian Contract Act, when the accused
has acknowledged the debt in writing, he cannot contend that
44
the liability is a time bared liability. Section 25(3) of the Indian
Contract Act, 1872 reads as hereunder:
25. Agreement without consideration, void, unless
it is in writing and registered or is a promise to
compensate for something done or is a promise to
pay a debt barred by limitation law.-
(1). xxxx xxxx xxxx
(2). xxxx xxxx xxxx
(3). It is a promise, made in writing and signed by
the person to be charged therewith, or by his agent
generally or specially authorized in that behalf, to
pay wholly or in part a debt of which the creditor
might have enforced payment but for the law for
the limitation of suits.
51. In the case on hand, it has to be noted that
memorandum of agreement which is marked before the Trial
Court in all the cases is very clear that earlier there was
transaction in the year 2008 and earlier when the accused had
issued Cheques, the first Cheque was dishonoured, immediately
on persuasion, he made demand to pay the amount in respect of
dishonoured Cheque. Thereafter, memorandum of agreement
came into existence and the accused also acknowledged
issuance of three Cheques earlier for an amount of
45
Rs.10,75,000/-, Rs.6,00,000/- and 6,25,000/-, in all to the tune
of Rs.23,00,000/-. It is also evident from the document of
memorandum of agreement that subsequently, three Cheques
are issued i.e., Cheque bearing No.412506 dated 30.12.2011 for
Rs.3,00,000/-, Cheque bearing No.412507 dated 27.02.2012 for
Rs.3,00,000/- and Cheque bearing No.412508 dated 30.04.2012
for Rs.9,00,000/- and the same is subject matter in the criminal
appeal filed by the complainant in view of the acquittal of the
accused. Hence, this document is very clear that fresh Cheques
are issued on account of recognizing earlier liability. In view of
the principles laid down in the judgment of the Apex Court,
judgment of the different High Courts, including this Court, this
Court comes to a conclusion that Court can invoke Section 138
of N.I. Act in respect of the liability, even if it is a time barred
debt subsequently through a document recognizing the liability
and also promised to pay the same. Hence, the very contention
raised by the learned counsel for the revision petitioner in all the
cases regarding no liability cannot be accepted.
46
52. It is also brought to notice of this Court that the very
first witness to this document is none other than the wife of the
accused in the memorandum of agreement. Though the accused
contend that said document is obtained at the instance of the
Police, but the fact that the very accused himself approached the
Police is not in dispute. Hence, he cannot blow hot and cold and
at one breath says that document cannot be relied upon and in
another breath says tha the said document came into existence
at the intervention of the Police. In the very document itself it is
very clearly mentioned that First Party due to his financial crisis
could not mobilize required money to meet the dishonoured
Cheque. But, the Second Party finds suspected the reasons so
explained by the First Party, First Party approached the
Higher/Superior Police Officer and also Vijayanagar Police,
Bangalore and Kamakshipalya Police, Bangalore. It is out of the
successful negotiation and conciliation effectively done by the
said Police, the parties to this indenture have mutually agreed to
get an end to the litigation. When such averments are found in
the document itself and document came into existence after
47
negotiation, now the accused cannot contend that the document
cannot be considered.
53. The Trial Court in the complaint filed by the
complainant in other case for Rs.9,00,000/- comes to such a
conclusion dismissing the complaint and Trial Court lost sight
that the very document of memorandum of agreement came into
existence at the intervention of the Police on behalf of the
accused and issued fresh Cheques and the very reasoning given
by the Trial Court while acquitting the accused is nothing but
perverse finding and failed to take note under what circumstance
the document of memorandum of agreement came into
existence. The reason given by the Trial Court in
C.C.No.5845/2013 is that to rely at Ex.P1 memorandum of
understanding entered into at the intervention of Police,
extracted the evidence of P.W.1 in paragraph No.56 and in
paragraph No.57 comes to the conclusion that taken into
transaction dated 02.06.2008, as on the date of filing complaint
it was time barred. Therefore, there was effort made by the
complainant to make prepare the Ex.P1 memorandum of
48
understanding in the name of conciliation before the Police
Station. Since, the accused has denied the Ex.P1, it has to be
considered that, Ex.P1 was not prepared or entered into between
the complainant and accused and the said reasoning is against
the very averment made in the document Ex.P1. Apart from
that, document Ex.P9 which was marked by the accused himself
clearly disclose that he only approached the Joint Commissioner
of Police, Vijayanagar Police Station and Kamakshipalya Police
Station.
54. The other observation is that accused himself
prepared the document and signed and one Anil Kumar was
present and conciliated the matter and to believe the same, he
has not examined those witnesses. When the document came
into existence, issued fresh Cheques promising to pay the
amount and also observation that if at all he prove that he paid
Rs.20,00,000/- as he contended, he has to establish that he
possessed the requisite money as on the alleged date and
handed over the same to the accused when the document itself
was executed earlier i.e., Cheques, promissory note and
49
consideration receipt. Apart from that, when fresh agreement
was entered regarding liability at the intervention of Police with
the accused, the very approach of the Trial Court is erroneous, in
coming to the conclusion that agreement cannot be relied upon.
The Apex Court in detail discussed in M/s. Gimpex Private
Limited's case with regard to the liability and hence, the
judgments which have been relied upon by this Court are
consequent upon fresh agreement entered into between the
parties and there is a memorandum of agreement and Trial
Court committed an error in dismissing the complaint when
Cheques are issued admitting the liability and signature is also
admitted and the only contention is that at the intervention of
Police, the Cheques are issued. But, the fact is that accused
himself approached the Police and at the intervention of Police
only, settlement was arrived and apart from that the accused
categorically admitted that earlier he made payment of
Rs.7,00,000/- and he is liable to pay Rs.6,00,000/-. But the fact
is that accused entered into fresh memorandum of agreement
acknowledging levy of Rs.15,00,000/- and wife is witness to the
said document. Apart from that, the person, who witnessed the
50
lending of money to the accused and went along with the
complainant is also signatory i.e., P.W.2-Janardhan and he has
been examined before the Trial Court with regard to the
transaction. When such being the material on record, though
the accused examined himself as witness in other connected
acquittal case, the same not substantiates that he had raised the
probable defence and the Trial Court committed an error in
relying upon exhibit 'D' series relied upon by the accused and
instead of considering the material, particularly document of
memorandum of agreement, since the accused also admitted
issuance of Cheques and never disputed issuance of Cheques.
But, only contention is that the same are obtained at the
intervention of the Police and the same cannot be relied upon
and the said contention cannot be accepted. The Trial Court
committed an error in accepting the defence theory of the
accused and committed an error in acquitting the accused.
55. Now the issue is with regard to payment of
compensation is concerned. This Court, no doubt in the
judgment in CRL.R.P.NO.244/2011 dated 25.03.2022 when
51
higher amount was sought, having taken note of the fact that
amount was already awarded, did not interfere with the finding
of the Trial Court. However, counsel relied upon the judgment in
CRL.A.1902/2011 in the case of R VIJAYAN vs BABY AND
ANOTHER relied upon by learned counsel for the complainant,
wherein the Apex Court at paragraph No.16 observed that when
there is a conviction there should be a consequential levy of fine
of an amount sufficient to cover the Cheque amount and interest
thereof at a fixed rate of 9% per annum interest, followed by
award of such sum as compensation from the fine amount. This
would lead to uniformity in decisions, avoid multiplicity of
proceedings (one for enforcing civil liability and another for
enforcing criminal liability) and achieve the object of Chapter
XVII of the Act, which is to increase the credibility of the
instrument. Having considered the principle in the judgment and
considering the material on record and having taken note of the
fact that transaction is of the year 2008 and when the Trial Court
awarded amount of Rs.3,05,000/- as against Rs.3,00,000/-, no
appeal or revision is filed by the complainant for enhancement
challenging insufficient compensation. Hence, in the revision
52
petition filed by the accused, this Court cannot enhance the
compensation. However, taking note of the fact that Cheque was
bounced for an amount of Rs.9,00,000/- and Cheques are issued
in 2011, Court has to take note of principles laid down in the
judgment of the Apex Court while awarding the compensation.
Having considered the principles laid down in R Vijayan's case,
in paragraph No.18 of the judgment and this Court also re-
analyzed the material on record, matter requires to be interfered
with regard to the finding of the Trial Court in C.C.No.5845/2013
by answering point No.3 as 'affirmative', since there is a
perversity in the finding of the Trial Court and not properly
analyzed the material on record, particularly both oral and
documentary evidence placed on record, since no material is
placed to prove that accused had repaid the amount, subsequent
to memorandum of agreement. In the absence of cogent
evidence for having paid the amount, this Court can exercise the
revisional jurisdiction. Accordingly, I answer point Nos.1 and 2 in
the 'negative'.
53
Point No.4:
56. In view of the discussion made above, I pass the
following:
ORDER
(i) The revision petitions filed by the revision
petitioner in Crl.R.P.Nos.400/2016 and
401/2016 are dismissed.
(ii) The appeal filed by the appellant in
Crl.A.No.323/2019 is allowed. The judgment of
acquittal passed by the Trial Court is set aside.
Consequently, the complaint filed by the
appellant is allowed and the respondent-
accused is convicted for the offence punishable
under Section 138 of N.I. Act and ordered to
pay the compensation of Rs.15,00,000/- as
against the Cheque amount of Rs.9,00,000/- to
the appellant considering the transaction of the
year 2008.
(iv) The respondent-accused is directed to pay the
compensation of Rs.15,00,000/- within a
period of three months from today. In default
of payment of said compensation, the
respondent-accused to undergo simple
imprisonment for a period of one year. If the
compensation amount is paid, an amount of
Rs.14,75,000/- is payable to the complainant
and remaining amount of Rs.25,000/- shall
vest with the State.
Sd/-
(H.P. SANDESH)
JUDGE
SN/ST
