Karnataka High Court
Sri Venkataramaiah vs Sri N R Kumaraswamy on 27 February, 2020
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION NO.440/2017
BETWEEN:
SRI VENKATARAMAIAH
S/O RAJANNA,
AGED ABOUT 48 YEARS,
RESIDENT OF CHIKKAPURA VILLAGE,
MUTHAGADAHALLI POST,
MAYASANDRA HOBLI,
TURUVEKERE TALUK,
TUMAKURU DISTRICT-572 227.
...PETITIONER
(BY SRI H.S.SHANKAR, ADV., FOR
SRI MAHENDRA S.S., ADV.)
AND:
SRI N.R.KUMARASWAMY
S/O B.RAMAIAH,
AGED ABOUT 38 YEARS,
RESIDENT OF NAGALAPURA VILLAGE,
DABBEGATTA HOBLI,
TURUVEKERE TALUK,
TUMAKURU DISTRICT-572 227.
...RESPONDENT
(RESPONDENT SERVED AND UNREPRESENTED)
2
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF THE CODE OF
CRIMINAL PROCEDURE, 1973, PRAYING TO i) SET ASIDE
THE ORDER DATED 27.11.2015 PASSED BY THE VI
ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR
PRODUCED AT ANNEXURE-C AS THE SAME WAS PASSED
WITHOUT JURISDICTION AND OPPOSED TO THE
PRINCIPLES OF NATURAL JUSTICE AND FURTHER BE
PLEASED TO REMAND THE MATTER TO V ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TIPTUR FOR FRESH
CONSIDERATION AND ii) SET ASIDE THE JUDGMENT OF
CONVICTION DATED 18.01.2014 PASSED IN
C.C.No.76/2012 ON THE FILE OF THE CIVIL JUDGE AND
JMFC., TURUVEKERE PRODUCED AT ANNEXURE-A AND
THE ORDER IN CRL.A.No.13/2014 DATED 27.11.2015
PRODUCED AT ANNEXURE-C ON THE FILE OF THE
COURT OF THE VI ADDITIONAL DISTRICT AND SESSIONS
JUDGE, TUMKUR AND FURTHER BE PLEASED TO ACQUIT
THE PETITIONER BY ALLOWING THIS REVISION PETITION
AND ETC.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This criminal revision petition is filed by the petitioner/accused assailing the judgment of conviction and sentence dated 18.01.2014 passed by the Civil Judge and JMFC, Turuvekere, (hereinafter referred to as 'trial Court' for short) in C.C.No.76/2012 and the same was confirmed by VI Addl. District and Sessions Judge, 3 Tumkur, (hereinafter referred to as 'first Appellate Court' for short) in Crl.A.No.13/2014 dated 27.11.2015.
2. Heard the arguments of learned counsel for the petitioner/accused. Though, the respondent is served, but remained absent.
3. The ranks of the parties before the trial Court is retained for the sake of convenience.
4. The case of the complainant before the trial Court is that the accused borrowed hand loan of Rs.60,000/- from the complainant and to discharge the same, the accused issued a cheque bearing No.974766 on 21.10.2011 drawn on Karnataka Bank, Turuvekere Branch. When the same was presented for encashment, it became dishonored for "funds insufficient". Hence, a legal notice was issued to the accused on 24.10.2011 through RPAD. The accused neither replied nor paid the loan amount. Hence, the complaint came to be filed 4 against the accused under Section 200 of Cr.P.C for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I. Act" for short). Pursuant to the summons, the accused appeared before the trial Court through his counsel and he pleaded not guilty. To prove the case, the complainant was examined himself as P.W.1 and other two witnesses were examined as P.Ws.2 and 3 and got marked 6 documents. The statement of accused was recorded under Section 313 of Cr.P.C. The case against the accused is one of total denial. The accused was examined himself as D.W.1 and no documents were marked. After hearing the arguments, the trial Court found the accused guilty and convicted and sentenced him to undergo simple imprisonment for three months with fine of Rs.5,000/- and also ordered to pay a sum of Rs.60,000/- to the complainant as compensation. Assailing the same, the accused preferred Crl.A.No.13/2014 before the VI Addl. District and 5 Sessions Judge, Tumkur, and the same came to be dismissed by confirming the judgment of conviction and sentence passed by the trial Court. Assailing the same, the petitioner/accused is before this Court by way of revision petition.
5. Learned counsel for the petitioner/accused has strenuously argued that the judgment of the trial Court is not sustainable under the law. His arguments are in two folds:
The first contention is that, the first Appellate Court has no jurisdiction to dispose of the appeal, since the Government of Karnataka established a new Additional District and Sessions Court at Tiptur and all cases comes under the revenue taluks of Turuvekere shall be vested with jurisdiction of V Addl. District and Sessions Judge, Tumkur (sitting at Tiptur), but in spite of Notification issued by the Government of Karnataka in the year 2014 i.e., on 07.05.2014, the first Appellate 6 Court proceeded with the case and disposed of the appeal, which is illegal. Therefore, the judgment of the first Appellate Court is liable to be set aside.
The second contention is that both the petitioner and respondent i.e., the accused and the complainant were not at all heard in the matter before the first Appellate Court and the judgment was delivered by dismissing the appeal, which is not correct. It is further contended that the first Appellate Court ought to have given an opportunity to the parties for addressing the arguments on merits and should have re-appreciated the evidence on record. Therefore, the judgment of the first Appellate Court suffers from illegality. That apart, the trial Court also committed an error in passing the judgment. Even though, the accused disputed the capacity of the complainant for paying Rs.60,000/- to the accused and when the relationship is also disputed, 7 these aspects are not considered by both the court below. Hence, prayed for setting aside the same.
6. Upon hearing the arguments of learned counsel for the parties and on perusal of the record, it go to show that the accused faced trial and taken the contention that there was no relationship between the accused and the complainant and the complainant has no capacity to pay Rs.60,000/- to the accused. On the other hand, the complainant adduced the evidence of three witnesses including the complainant and stated that the accused borrowed hand loan of Rs.60,000/- from the complainant with an assurance to repay the same within three months. In order to discharge the loan, the accused is said to have issued a cheque drawn on Karnataka Bank, Turuvekere, on 21.10.2011. When the cheque was presented for encashment, it became dishonored for "funds insufficient". A legal notice was issued to the accused, but the accused not chosen to 8 give any reply to the said notice. The evidence of P.Ws.1 to 3, Ex.P5 is the cheque, Ex.P.3 is the legal notice and Ex.P2 is the postal receipt, which go to show that the notice has been duly served on the accused, but the accused has not given any reply. The accused, though, entered into witness box, but not produced any document to rebut the presumption available in favour of the complainant under Section 139 of N.I. Act. The presumption has not been rebutted by the accused by leading evidence or producing any document to prove his contention. Merely taking a contention that the complainant has no capacity that itself is not a ground to rebut the presumption available in favour of the complainant and the accused also failed to prove as how the cheque belonged to the accused has gone to the hands of the complainant. The Hon'ble Supreme Court in a recent judgment in the case of M.Abbas Haji Vs. T.N.Channakeshava in Crl.A.No.664/2012 decided on 9 19.09.2019 has held that the accused failed to prove his contention.
7. To prove the case, the complainant examined three witnesses including the complainant. The trial Court after appreciating the evidence has rightly held that the accused found guilty and convicted for the offence punishable under Section 138 of N.I. Act. Therefore, the findings of the trial Court need not be interfered with. Though, the first Appellate Court passed the judgment, but it is revealed from paragraph No.10 of the judgment that both the complainant and the accused failed to appear before the Court and not addressed the arguments. Therefore, the first Appellate Court after re-appreciating the evidence dismissed the appeal on merits. Therefore, this Court does not find any error or illegality committed while disposing of the appeal on merits in spite of non-appearance of the 10 parties. Therefore, the findings of both the court below do not call for interference.
8. Another contention raised by the learned counsel for the petitioner/accused is that the first Appellate Court has no jurisdiction as the Government of Karnataka established a new Additional District and Sessions Court at Tiptur. Hence, the jurisdiction of Turuvekere shall be vested with the Court i.e., V Addl. District and Sessions Judge, Tumkur (sitting at Tiptur). In this regard, a notification is produced vide Annexure-B which shows that Turuvekere and Tiptur are attached to V Addl. District and Sessions Judge, Tumkur (sitting at Tiptur) by revising the local jurisdiction of V Addl. District and Sessions Court. However, both the parties i.e., the accused and the complainant not appeared before the first Appellate Court. It is the duty of Prl. District and Sessions Judge, Tumkur, to withdraw the appeals arising out of the 11 judgment from Civil Judge and JMFC, Turuvekere and the same shall be made out to V Addl. District and Sessions Court, Tumkur (sitting at Tiptur), which was not done. However, the first Appellate Court has proceeded to pass the judgment. Even otherwise, as per Sections 464 and 465 of Cr.P.C., the finding or sentence cannot be reversible on the point of jurisdiction. For the sake of convenience, Section 464 of Cr.P.C., reads as under:
"464. Effect of omission to frame, or absence of, or error in, charge (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.12
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-
(a) in the case of an omission to frame
a charge, order that a charge be
framed and that the trial be
recommended from the point
immediately after framing of the
charge;
(b) in the case of an error, omission or
irregularity in the charge, direct a
new trial to be had upon a charge
framed in whatever manner it
thinks fit:
PROVIDED that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
9. In view of the provisions under Section 464 of Cr.P.C., when the judgment of conviction and sentence passed by the first Appellate Court, the jurisdiction cannot be revised on that ground. 13 Therefore, the contention raised by the learned counsel for the petitioner/accused cannot be acceptable. However, the learned counsel argued that the sentence of imprisonment can be modified into only fine amount. The cheque amount is only Rs.60,000/-. Therefore, the order of sentence passed by the trial Court by imposing imprisonment for three months with fine of Rs.5,000/-, in my considered opinion, to meet the ends of justice, shall be modified into only fine. Accordingly, the sentence passed by the trial Court is required to be modified. Hence, I pass the following ORDER Criminal revision petition is allowed in part. The judgment of conviction dated 18.01.2014 passed by the Civil Judge and JMFC, Turuvekere, in C.C.No.76/2012 and confirmed by VI Addl. District and Sessions Judge, Tumkur, vide order dated 27.11.2015 14 in Crl.A.No.13/2014 is hereby affirmed. The order of sentence is modified as under:
The petitioner/accused is sentenced to pay fine of Rs.65,000/-, in default to undergo imprisonment for three months. Out of fine amount, of Rs.60,000/- shall be released in favour of the respondent/complainant as compensation under Section 357 of Cr.P.C.
Sd/-
JUDGE PB