Karnataka High Court
V B Krishnappa vs B L Ravindra on 29 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:49286
CRL.RP No. 1107 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1107 OF 2019
BETWEEN:
V.B. KRISHNAPPA,
S/O LATE P. BASAVAIAH
AGED ABOUT 46 YEARS,
R/AT VAIDHYANATHAPURA VILLAGE,
KASABA HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 428.
...PETITIONER
(BY SRI. HAREESH BHANDARY T, ADVOCATE)
AND:
B.L. RAVINDRA,
S/O LATE B.T. LINGAIAH,
AGED ABOUT 56 YEARS,
R/AT KOPPA VILLAGE AND HOBLI,
MADDUR TALUK,
Digitally MANDYA DISTRICT - 571 428.
signed by ...RESPONDENT
MALATESH (BY SRI. SHIVANANDA R, ADVOCATE FOR
KC SRI. P. NATARAJU, ADVOCATE)
Location:
HIGH THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
COURT OF PRAYING TO SET ASIDE IN C.C.NO.1988/2013 PENDING ON
KARNATAKA THE FILE OF THE IV ADDITIONAL CIVIL JUDGE AND JMFC AT
MADDUR THE JUDGMENT DATED 29.03.2019 AND ALSO TO
KINDLY SET ASIDE THE JUDGMENT DATED 23.07.2019 PASSED
IN CRL.A.NO.52/2019 PASSED BY V ADDITIONAL SESSIONS
JUDGE AT MANDYA.
THIS PETITION, COMING ON FOR FURTHER HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
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CRL.RP No. 1107 of 2019
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Hareesh Bhandary T., learned counsel for the revision petitioner and Sri.Shivananda R., learned counsel appearing on behalf of Sri.P.Nataraju, learned counsel for the respondent.
2. Accused/revision petitioner who suffered an order of conviction in CC No.1988/2013 dated 29.03.2019 for the offence punishable under Section 138 of the Negotiable Instruments Act which was confirmed in Crl.A.No.52/2019 dated 23.07.2019 has preferred this revision petition.
3. Brief facts of the case which are utmost necessary for disposal of the petition are as under:
3.1. A complaint came to be lodged under Section 200 of Cr.P.C. alleging the commission of offence punishable under Section 138 of the Negotiable Instruments Act contending that complainant and accused -3- NC: 2024:KHC:49286 CRL.RP No. 1107 of 2019 are well acquainted with each other and in that friendship, accused borrowed sum of Rs.3,00,000/- for legal necessity i.e., for discharge of hand loan and family expenses on 21.10.2012 agreeing to repay the same in the last week of December 2012.
3.2. Towards repayment of the loan, accused issued a cheque bearing No.009044 dated 28.12.2012 drawn on State Bank of Mysore, Maddur Branch. The said cheque on presentation returned with an endorsement 'funds insufficient'. Legal notice was issued calling upon the accused to make good the payment. An untenable reply came to be issued by the accused. Therefore, complainant sought for action against the accused.
4. Learned Trial Magistrate after completing necessary formalities, summoned the accused and recorded the plea. Accused pleaded not guilty and therefore, trial was held.-4-
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5. In order to prove the case of the complainant, complainant got examined himself as P.W.1 and placed on record six documentary evidence on record which were exhibited and marked as Exs.P.1 to 6 comprising of original dishonored cheque, bank endorsement, copy of the legal notice, postal receipt, postal acknowledgement and reply notice
6. Detailed cross-examination of P.W.1 did not yield any positive material so as to disbelieve the case of the complainant nor to dislodge the presumption available to the complainant under Section 139 of the Negotiable Instruments Act except for few contradictions which are not material to the facts of the case so as to throw away the case of the complainant.
7. Thereafter, the learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.P.C. wherein, accused has denied all the incriminatory circumstances.
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8. Subsequent there to, in order to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act, accused stepped into the witness box and got examined himself as D.W.1 and one witness by name Sri.Ananthaprasad B.V. as D.W.2 and relied on four documents comprising of police complaint for having lost the cheque book, acknowledgment by the police, a letter said to have issued to the Bank dated 24.03.2010 and endorsement for having blocked the account dated 24.03.2010.
9. In the cross-examination of D.W.1, he admits that Ex.D.3 does not contain the date. He admits that orally, bank informed that it is dated 24.03.2010. He also admits that he has issued a notice to the bank for wrongfully issuing a bank advice vide Ex.P.2, no such copy of the notice is produced before the Court. He further admits that there are several cases filed against him and he is in a position to reveal four cases which were pending in Maddur, Channapatna and other places. -6-
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10. In the cross-examination of D.W.2, he admits that Ex.D.3 does not contain the date. He admits that cheque came to be dishonored for 'want of sufficient funds'. He also admits that original stop payment instructions is not available in the bank. He further admits that whenever an application is filed giving some instruction to the banker, same would be acknowledged on the very same day.
11. On cumulative consideration of oral and documentary evidence placed on record, learned Trial Magistrate heard the arguments of the parties in detail and noted that evidence is placed on record by the accused to put forward his theory of loss of cheque was not sufficient. Therefore, misuse of the same by the complainant is not established by placing cogent evidence on record. Therefore, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed fine in a sum of Rs.3,30,000/- of which sum of Rs.3,20,000/- was ordered -7- NC: 2024:KHC:49286 CRL.RP No. 1107 of 2019 to be paid as compensation to the complainant and balance sum of Rs.10,000/- towards defraying expenses of the State with default sentence of four months.
12. Being aggrieved by the said order of conviction and sentence passed by the learned Trial Magistrate, accused preferred an appeal before the First Appellate Court in Criminal Appeal No.52/2019.
13. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the material on record, dismissed the appeal filed by the accused inter alia holding that accused failed to prove his theory of loss of cheque and misuse vide paragraph Nos.11 to 13 which reads as under:
11. The main contention of the Appellant is that he lost his entire cheque book containing cheque leaves bearing No.009036 to 009050 and the Complainant has misused his lost cheque bearing No 009044. To prove his contention he has produced certified copy of the documents at Ex. D. 1 to D.4. Ex. D.1 is the police complaint given by the appellant regarding loss of cheque book. In the said complaint the appellant has stated that he lost the cheque book on 22.03.2010 in a bus, while he was travelling from Bengaluru to Maddur. It is pertinent to -8- NC: 2024:KHC:49286 CRL.RP No. 1107 of 2019 note here that, even though the Appellant lost the cheque book on 22.03.2010, he lodged the complaint only on 08.10.2010 i.e., seven months after the incident. The Appellant has not explained why there was such a delay in the lodging the police complaint and what was the difficulty faced by the appellant to lodge the police complaint immediately. Further, Ex.D.1 doesn't contain the signature of the Station House Officer of the concerned police station. It is pertinent to note here that the Appellant has not denied his signature on the cheque.
The defence of the appellant is that he had signed on all the cheque leaves of the cheque book and he lost the same while he was travelling in the bus. If the Appellant had really lost the signed cheques, he would have immediately filed the police complaint. No prudent person will sign on all the cheque leaves of the cheque book, carry the said signed cheque book with him and travel in a bus. The said version of the Appellant cannot be believed. The second contention is that after losing the cheques, he had issued instructions to the Bank to stop the payment of the cheques and he had blocked his Bank account. In his cross-examination, the Appellant has stated that he has taken action against the Bank by way of issuing legal notice against the Bank for giving endorsement as 'Insufficient Funds' in the cheque return memo even though he had blocked his account. The Appellant has not produced any legal notice issued against the Bank before the Trial court to prove the said contention. Further, to prove that he had blocked his Bank account and had issued stop payment instructions, the Appellant has not produced his Bank Account extract before the Trial Court. Furthermore, the Appellant has not taken any action against the Bank Manager for issuing wrong endorsement in the cheque return memo. If the Appellant had issued stop payment instructions letter it would have been noted in the stop payment register. D.W.2- Bank Manger in his cross-examination has stated that there is no entry in stop payment register regarding the stop payment instructions letter issued by the Appellant. The said Bank Manager has stated that if a customer gives instructions for stop payment, the same will be endorsed in the customer Bank's account and in the stop payment Register. No efforts were made by the Appellant to produce his Bank Account extract before the Trial Court to prove the said fact. Further, the EX.D4 is a computer -9- NC: 2024:KHC:49286 CRL.RP No. 1107 of 2019 generated copy and it doesn't contain Bank account number. The Appellant could have proved that he blocked his account and issued stop payment instructions by producing his Bank account extract before the trial court. However, the Appellant has preferred not to produce his Bank Account extract before the trial court. Further, the D.W.2 has stated in his cross-examination that he searched for the stop payment instructions letter issued as per Ex.D.3, but he could not find the same in the Bank records and there is no entry in stop payment register also regarding stop payment instructions issued by the Appellant. The Bank Manager has also agreed that if the stop payment instructions letter was given, it would have been entered in the stop payment register. Further Ex.D4 has been obtained on 14.03.2016 after filing of the complaint against the Appellant. The Bank Manager in his cross-examination has stated that it is possible for the Bank staff to make certain changes in computer entries. If the Bank had issued wrong endorsement as per EX.P.2, the Appellant could have lodged complaint against the Bank Manager. No action has been taken against the Bank Manager by the Appellant. Hence, it can be deduced that neither the Appellant blocked his Bank account nor he gave stop payment instructions.
Further, it is the contention of the Appellant that the complainant somehow got hold of the lost cheque and presented the cheque to his Bank. The Appellant in his evidence has stated that he has not initiated any criminal proceedings against the Complainant for misusing his lost cheque. In his cross-examination, the appellant has stated that various cheque bounce cases for a sum of Rupees eight lakhs, twenty lakhs have been filed against him before Channapatna, Mandya and Maddur Courts. The Appellant contention is that all the complainant have misused his lost cheques and have filed false complaint against him. However, the Appellant has not initiated any criminal proceedings against the complainants for misusing his cheques.
14. Being further aggrieved by the same, accused is before this Court, in this revision.
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15. Sri.Hareesh Bhandary, learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition, vehemently contended that it is a classic case of misuse of the cheque by the complainant.
16. He further emphasized that Ex.D.1 is the complaint lodged to the jurisdictional police and Ex.D.2 is the acknowledgment by the police specifically mentioning that he lost the cheque and complaint came to be filed in the year 2010 itself and cheque in question is misused by the complainant who is a total stranger. Therefore, there is no legally recoverable debt under Ex.P.1 which is not properly appreciated by both the Courts and wrongly convicted the accused and sought for allowing the revision petition.
17. Per contra, Sri.Shivananda R., learned counsel appearing on behalf of Sri.P.Nataraju, learned counsel for the respondent supports the impugned orders.
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18. Having heard the parties in detail, this Court perused the material on record meticulously.
19. On such perusal of the material on record, it is crystal clear that the cheque belongs to the accused and signature found there in is also that of the accused. Theory put forward by the accused is that he lost the cheque book containing 9026 to 9050 and in that regard, he had complained to Maddur Police Station and has given a intimation to the Branch Manager of State Bank of Mysore, Maddur Branch vide Ex.D.3. Ex.D.4 is the endorsement by State Bank of Mysore dated 14.03.2016. In other words, defence that has been put forward by the accused is that a lost cheque which has been misused by the complainant and therefore, there was no legally recoverable debt.
20. Complainant has maintained that accused is his friend. No doubt, in the cross-examination, complainant says that he met him in a coffee shop which was closed twenty years earlier. Fact remains that if a complainant is
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NC: 2024:KHC:49286 CRL.RP No. 1107 of 2019 a total stranger, how he would to know about the personal details of the drawer of the cheque i.e., the accused.
21. Admittedly, complainant is residing in Koppa village and later on shifted to Belikere village. Accused is resident of Vaidyanathapura village, Maddur Taluk. If the complainant is a total stranger, how he came to know that Ex.P.1 - cheque is the cheque which was belonging to the accused is a question that remains unanswered on behalf of the accused. Ex.D.3 does not contain any date. However, endorsement is found beneath the seal dated 24th March and year is not legible, there was a column in Ex.D.3 itself wherein it has been shown as '¢£ÁAPÀ', the said column is left blank.
22. It is also found from the said letter that there was something that was available which has been subsequently erased. Ex.D.3 is admittedly certified copy of the document which has been marked as Ex.D.1 before Additional Civil Judge, JMFC, Maddur in some other case.
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NC: 2024:KHC:49286 CRL.RP No. 1107 of 2019 Nothing prevented the accused to produce the original copy of Ex.D.3 taking return from another case and placing it before the Court. In the photocopy, it is clearly seen that date column has been either erased or it has been masked with white ink.
23. Under such circumstances, when the theory that he had issued stop payment and complainant has misused Ex.P.1 - cheque needs to be analyzed in the light of oral evidence of the parties as well. D.W.1 in his cross- examination as referred to supra contended that he has lost the cheque and complainant has misused the same.
24. If it is so, atleast after engaging the services of an Advocate, accused should have taken positive action against the complainant by filing the complaint. No such effort has been made by the accused. Moreover, bank official who is examined as D.W.2, admits before the Court that original stop payment instructions given by the accused is not available in the bank despite best search.
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NC: 2024:KHC:49286 CRL.RP No. 1107 of 2019 Ex.D.4 is a bank endorsement obtained through the computer.
25. In the absence of original stop payment instructions, who entered into the computer about the stop payment instructions is a question again that remains unanswered on behalf of the accused even after examining D.W.2 as his witness.
26. All these factors when viewed cumulatively, theory of loss of the cheque and misuse of the cheque, only remains as theory on record without there being any plausible proof thereof so as to rebut the presumption available to the complainant. When the accused has taken responsibility of proving that there is misuse of the cheque and he fails to prove, the presumption available to the complainant under Section 139 of the Negotiable Instruments Act is rightly invoked by learned Trial Magistrate confirmed by the First Appellate Court in recording the order of conviction against the accused.
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27. Therefore, having regard to the limited jurisdiction of this Court, by exercising the revisional powers, the order of conviction recorded by the learned Trial Magistrate confirmed by the First Appellate Court needs no interference by this Court.
28. Having said thus, learned Trial Magistrate has imposed fine of Rs.10,000/- towards defraying expenses of the State cannot be countenanced in law as the lis is privy to the parties and no State machinery is involved. To that extent, the impugned orders need interference.
29. In view of the forgoing discussion, following:
ORDER i. Criminal Revision Petition is allowed in part. ii. While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, the compensation amount ordered by the learned Trial Magistrate confirmed by the
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CRL.RP No. 1107 of 2019
First Appellate Court in a sum of
Rs.3,30,000/- is reduced to sum of
Rs.3,20,000/-.
iii. Amount of compensation in a sum of
Rs.3,20,000/- shall be paid to the
complainant on or before 31.12.2024 failing which the simple imprisonment ordered by the learned Trial Magistrate confirmed by the First Appellate Court shall be undergone by the accused.
iv. Fine amount of Rs.10,000/- imposed by the learned Trial Magistrate confirmed by the First Appellate Court towards defraying expenses of the State stands set aside. v. Office is directed to return the Trial Court Records with copy of this order forthwith.
Sd/-
(V SRISHANANDA) JUDGE KAV/List No.: 1 Sl No.: 56/CT: BHK