Karnataka High Court
Arun M Gowda vs S B Satish Kumar on 20 November, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:46984
CRL.RP No. 406 of 2024
C/W CRL.RP No. 405 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 406 OF 2024
C/W
CRIMINAL REVISION PETITION NO. 405 OF 2024
IN CRL.RP No. 406/2024
BETWEEN:
ARUN M GOWDA
S/O MURTHY B S
AGED ABOUT 45 YEARS,
R/AT NO. 1023, 1ST STAGE,
VIJAYANAGAR, MYSURU-570017.
...PETITIONER
(BY SRI. KUMARA K G., ADVOCATE)
AND:
S. B. SATISH KUMAR
S/O LATE S V BRAMHADEVAIAH,
MAJOR BY AGE
Digitally signed by
DHARMALINGAM R/AT SARAGURU TOWN,
Location: HIGH SARAGURU TALUK, MYSURU-571121.
COURT OF ...RESPONDENT
KARNATAKA (BY MS. RAFA M.R., ADVOCATE FOR
SRI. MAHANTESH S HOSMATH., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE ORDER PASSED BY THE VII ADDITIONAL
SESSIONS JUDGE AT MYSURU IN CRL.A.NO.433/2023 BY ITS
ORDER DATED 15.02.2024 AND JUDGMENT PASSED BY THE
COURT OF JUDICIAL MAGISTRATE FIRST CLASS (III COURT)
AT MYSURU IN C.C.NO.181/2019 DATED 18.11.2023 AND TO
ACQUIT THE PETITIONER OF THE CHARGE PUNISHABLE UNDER
SEC.138 OF NI ACT BY ALLOWING THE CRIMINAL REVISION
PETITION AND ETC.
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NC: 2024:KHC:46984
CRL.RP No. 406 of 2024
C/W CRL.RP No. 405 of 2024
IN CRL.RP NO. 405/2024
BETWEEN:
ARUN M GOWDA
S/O MURTHY B S,
AGED ABOUT 45 YEARS,
R/AT NO.1023, 1ST STAGE,
VIAJAYANAGARA, MYSURU 570017
...PETITIONER
(BY SRI. KUMARA K G., ADVOCATE)
AND:
S. B. SATISH KUMAR
S/O LATE S V BRAMHADEVAIAH,
MAJOR BY AGE,
R/AT SARAGURU TOWN,
SARAGURU HOBLI,
HEGGADADEVANA KOTE TALUK
MYSURU 571121
...RESPONDENT
(BY MS. RAFA M.R., ADVOCATE FOR
SRI. MAHANTESH S HOSMATH., ADVOCATE)
THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY THE VII
ADDL.SESSIONS JUDGE AT MYSURU IN CRL.A.
NO.297/2023 BY ITS ORDER DATED 15.02.2024 AND
JUDGMENT PASSED BY THE COURT OF JUDICIAL
MAGISTRATE COURT FIRST CLASS (III COURT) AT MYSURU
IN C.C.NO.879/2019 DATED 08.08.2023 AND TO ACQUIT
THE PETITIONER OF THE CHARGE PUNISHABLE UNDER
SEC.138 OF N.I ACT BY ALLOWING THIS CRIMINAL
REVISION PETITION AND ETC.
THESE PETITIONS, COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC:46984
CRL.RP No. 406 of 2024
C/W CRL.RP No. 405 of 2024
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri.Kumara K. G., learned Counsel for the revision petitioner and Ms. Rafa M.R., learned Counsel appearing on behalf of Sri. Mahantesh S Hosmath, learned Counsel for the respondent in both the matters.
2. The accused, who suffered an order of conviction dated 18.11.2023 passed in C.C.No.181/2019 and another order dated 08.08.2023 C.C.No.879/2019 for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I.Act', for short) in respect of dishonor of two cheques, issued to the complainant/respondent herein, whereby ordered to pay fine of Rs.29,33,000/- and Rs.30,10,000/- and confirmed in Crl.A.No.433/2023 and Crl.A.No.297/2023, respectively, has filed these two revision petitions.
3. The facts in brief which are utmost necessary for disposal of the revision petition are as under; -4-
NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 Two separate complaints came to be lodged under Section 200 of Cr.P.C., by the complainant alleging the commission of the offence punishable under Section 138 of the N. I. Act, against the accused by contending that the complainant is the General Power of Attorney Holder of Sri.B.S.Jagadish, has entered into a Sale Agreement in respect of a site property bearing Khatha No.409 situated Yarahall, Hyrige village Panchayath, Kasaba Hobli, H.D.Kote Taluk, Mysuru District on 03.06.2016. Pursuant to that Sale Agreement, a Sale Deed was also executed on 17.11.2017 for a sale consideration of Rs.64,23,000/-. Towards the sale consideration, a cheque bearing No.000030 dated 04.06.2018 for a sum of Rs.29,23,000/- and another cheque bearing No.000033 dated 10.12.2018 for a sum of Rs.30,00,000/- both drawn on Equitas Small Finance Bank Limited, Kalidasa Road, Mysuru, were respectively issued by the accused to the complainant, which on presentation came to be dishonored with an endorsement "Insufficient Funds". -5-
NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024
4. The fact of the dishonor of the cheques was informed to the accused by way of a legal notice calling upon the accused to make good the payment covered under the cheques, but untenable reply was sent to the legal notice and thus constrained the complainant to approach the court and sought for action against the accused.
5. Thereafter, the learned trial Magistrate after completing the necessary formalities took cognizance of the offence under Section 138 of N. I. Act and summoned the accused in both the cases.
6. In both the cases, the accused entered appearance and engaged the services of an Advocate. Plea was recorded. The accused pleaded not guilty. Therefore the trial was held.
7. In order to prove the case of the complainant, in C.C.No.181/2019, the complainant got examined himself as PW1 and placed on record 9 documents, which were exhibited and are marked as Exs.P1 to P9 comprising of -6- NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 original dishonored cheque, bank endorsement, copy of legal notice, postal acknowledgement, reply notice, certified copy of Sale Deeds and certified copy of Encumbrance Certificate. In C.C.No.879/2019 also the complainant got examined himself as PW1 and placed on record 8 documents, which were exhibited and are marked as Exs.P1 to P8, comprising of original dishonored cheque, bank endorsement, copy of legal notice, unserved postal covers, certified copy of Sale Deeds and Encumbrance Certificate.
8. Detailed cross-examination of PW.1 in both cases did not yield any positive material so as to disbelieve the case of the complainant or to dislodge the presumption available to the complainant under Section 139 of N. I. Act.
9. Thereafter, the accused statement as is contemplated under Section 313 of Cr.P.C., was recorded in both the cases separately. The accused has denied all the incriminating circumstances, but failed to place on -7- NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 record his version in writing as is contemplated under Section 313(4) of Cr.P.C.
10. For the reasons best known to the accused, he did not step into the witness box in both the cases, however, in C.C.No.181/2019 he placed on record two documents viz., mutual consent agreement and payment receipt, which are exhibited and marked at Ex.D1 and Ex.D2.
11. The learned trial Magistrate on conclusion of recording of evidence, heard the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record and noting that the accused has issued the cheques, recorded the order of conviction and sentenced as against the accused in both the cases, which reads as follows:
In C.C.No.181/2019
" The accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.-8-
NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 Acting under section 255 (2) of Cr.P.C, the accused is convicted for the offence punishable under section 138 of The Negotiable Instruments Act.
The accused is sentenced to pay a fine of Rs.29,33,000/- and in case of default he shall undergo simple imprisonment for 6 months. Out of the fine amount Rs.29,23,000/- shall be paid to the complainant as compensation as per Section 357(1) (b) of Cr.P.C. The remaining amount of Rs.10,000/- shall defray to the state. In view of section 437 A of Cr.P.C., bail bonds stands extended for 6 months from this date. Supply free copy of judgment to the accused."In C.C.No.879/2019
"The accused found guilty for the offence punishable under Section 138 of Negotiable Instruments Act.
Acting under section 255 (2) of Cr.P.C, the accused is convicted for the offence punishable under section 138 of The Negotiable Instruments Act.
The accused is sentenced to pay a fine of Rs.30,10,000/- and in case of default he shall undergo simple imprisonment for 6 months. Out -9- NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 of the fine amount Rs.30,00,000/- shall be paid to the complainant as compensation as per Section 357(1) (b) of Cr.P.C. Out of compensation amount of Rs.30,00,000/- payable to complainant, Rs.6,00,000/- is deducted as per Sec 143-A(5) of Negotiable Instruments Act and adjusted to fine amount. The accused is directed to pay Rs.24,00,000/- to complainant as compensation as per Section 357(1) (b) of Cr.P.C. The remaining amount of Rs.10,000/- shall defray to the state. In view of section 437 A of Cr.P.C. bail bonds stands extended for 6 months from this date. Supply free, copy of judgment to the accused."
12. Being aggrieved by the said orders, the accused preferred two separate appeals before the First Appellate Court, in Crl.A.No.433/2023 and Crl.A.No.297/2023, respectively.
13. Learned District Judge in the First Appellate Court after securing records heard the parties in detail and cumulative consideration of the material on record
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NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 re-appreciated the same and dismissed both the appeals of the accused and confirmed the order of conviction and sentence passed by the trial Magistrate.
14. Being further aggrieved by the same, the accused is before this Court in these criminal revision petitions.
15. Sri.Kumara K.G., learned Counsel for the revision petitioner reiterating the grounds urged in the revision petitions vehemently contended that the transaction is not in dispute, but there was a mutual consent agreement marked at Ex.D1 in C.C.No.181/2019 and payment receipt thereon.
16. Therefore, the accused was not liable to pay any further amount in respect of the transaction which has not been properly appreciated by both the courts, thus resulting in miscarriage of justice and sought for admitting the revision petitions for further consideration.
17. Per contra, Ms. Rafa M.R., learned Counsel appearing on behalf of Sri.Mahanthesh S Hosmath, learned
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NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 Counsel for the respondent supports the impugned orders in both the cases.
18. Having heard learned counsel for the parties, this Court perused the material on record meticulously. On such perusal of the material on record, since the transaction is admitted, cheques in question came to be issued by the accused duly signed by him, were admittedly got dishonored and the complainant has discharged his initial burden so as to the raise a presumption available to the complainant under Section 139 of N. I. Act.
19. No doubt, it is a rebuttal presumption. But rebut the presumption available to the complainant, the accused for the reasons best known to him did not place any rebuttal evidence on record. No doubt, Sri.Kumara K.G., learned Counsel for the revision petitioner contended that even in the absence of placing any oral evidence by the accused by stepping into the witness box, the material on record insufficient to rebut the presumption available to the complainant under Section 139 of N. I. Act, the trial
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NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 court is not precluded from considering the same in dismissing the complaint of the complainant.
20. But, even to appreciate the said aspect of the matter, material on record is not sufficient enough to hold that the accused has successfully rebutted the presumption available to the complainant. Effect of Ex.D1 and Ex.D2 has been duly considered by the trial Magistrate while passing the impugned orders.
21. The learned Judge in the First Appellate Court has re-appreciated the said aspect of the matter in considering the findings recorded by the learned Trial Magistrate and has rightly dismissed the appeals of the accused.
22. This Court, that too in the revisional jurisdiction, cannot revisit into the factual aspect of the matter so as to admit these matters for further consideration.
23. However, it is noticed that in both the cases a sum of Rs.10,000/- each has been ordered to be paid as fine amount to be appropriated towards the defraying expenses of the State which cannot be countenanced in
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NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 law in view of the fact that the lis is privy to the parties and no State Machinery was not involved. Therefore, to that extent, matter requires reconsideration and the same needs to be set aside by exercising the revisional jurisdiction of this Court.
24. Accordingly, this Court proceeds to pass the following:
ORDER (1) Both the Criminal Revision Petitions are allowed in part.
(2) While maintaining the order of conviction dated 18.11.2023 passed in C.C.No.181/2019 against the accused by the learned trial Magistrate, confirmed by First Appellate Court for the offence punishable under Section 138 of N.I. Act and fine amount ordered by the learned trial Magistrate and confirmed by the first appellate Court is reduced to Rs.29,23,000/-. Entire amount of
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NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 Rs.29,23,000/- is ordered to be paid as compensation to the complainant in C.C.No.181/2019; and The order of conviction dated 08.08.2023 passed in C.C.No.879/2019 against the accused by the learned trial Magistrate, confirmed by First Appellate Court for the offence punishable under Section 138 of N.I. Act and fine amount ordered by the trial learned Magistrate and confirmed by the first appellate Court is reduced to Rs.30,00,000/-. Entire amount of Rs.30,00,000/- is ordered to be paid as compensation to the complainant in C.C.No.879/2019.
(3) Fine amount of Rs.10,000/- imposed by the learned trial Magistrate and confirmed by the First Appellate Court towards defraying expenses of the State in both
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NC: 2024:KHC:46984 CRL.RP No. 406 of 2024 C/W CRL.RP No. 405 of 2024 C.C.No.181/2019 and C.C.No.879/2019 are hereby set aside.
(4) Time is granted to the accused to pay the fine amount on or before 31.12.2024 in both the cases, failing which the accused shall undergo simple imprisonment as ordered by the learned trial Magistrate and confirmed by the First Appellate Court. (5) Office is directed to return the Trial Court Records with a copy of this Order, forthwith.
Sd/-
(V SRISHANANDA) JUDGE DL CT: JL