Karnataka High Court
Nijam Tadakod vs Gopal S/O Neelkanthsa Miskin on 29 September, 2020
Author: V.Srishananda
Bench: V. Srishananda
-1-
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 29TH DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRL.R.P.NO.100046 OF 2019
BETWEEN
NIJAM TADAKOD
AGE: 58 YEARS,
OCC: SCRAP MERCHANT,
R/O: PANIGATTI BUILDING,
NEAR TULAJABHAVANI TEMPLE,
SHRIRAM NAGAR, IN FRONT OF
KALYANAGAR, DHARWAD.
... PETITIONER
(BY SRI.UMESH P. HAKKARKI, ADV., FOR
SRI. MALLIKARJUNSWAMY B HIREMATH, ADV., )
AND
GOPAL S/O NEELKANTHSA MISKIN
AGE: 53 YEARS, OCC: BUSINESS,
R/O: BLOCK NO.41, MANGAL ONI,
KARWAR ROAD, HUBBALLI.
... RESPONDENT
(BY SRI. RAJASHEKHAR S ARANI, ADV.,)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 20.11.2018 PASSED BY THE I-ADDL.
DISTRICT & SESSIONS JUDGE, DHARWAD, SITTING AT
HUBBALLI, IN CRL.A.NO.118/2017 INSOFAR AS CONVICTING
PETITIONERS FOR THE OFFENCES U/S 324 OF IPC AND
CONSEQUENTLY SET ASIDE THE ORDER DATED 06.10.2017
PASSED BY JMFC I-COURT, HUBBALLI, IN C.C.NO.2290/2016.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION, THIS DAY, COURT MADE THE FOLLOWING:
-2-
ORDER
This criminal revision petition is filed by the accused in C.C.No.2290/2016 questioning the validity of the judgment passed by the learned JMFC Court-I, Hubballi (hereinafter referred to as 'trial Court') by its order dated 06.10.2017, wherein the accused has been convicted for the offence punishable under Section 138 of the Negotiable Instrument Act (hereinafter referred to as 'N.I. Act') and sentenced and ordered to pay fine of Rs.1,80,000/- with default sentence of simple imprisonment of six months. Out of the fine amount recovered, Rs.1,70,000/- was ordered to be paid as compensation to the complainant.
2. Being aggrieved by the said judgment, the accused preferred appeal before the I Additional District and Sessions, Judge, Dharwad, sitting at Hubballi (hereinafter referred to as 'First Appellate Court') in Crl.A.No.118/2017.
-3-
3. The First Appellate Court after securing the records and on hearing the parties, dismissed the appeal by its judgment dated 20.11.2018. Being aggrieved by those judgments, the revision petitioner is before this Court in this revision petition.
4. The brief facts, which are necessary for disposal of the petition are as under:
A complaint under Section 138 of N.I. Act was filed on the file of the JMFC, Hubballi contending that the accused had financial transactions with the complainant and accused had taken hand loan of Rs.90,000/- from the complainant with a promise to repay the said amount within short time. When repayment of hand loan was demanded, the accused issued a cheque bearing No.077985 for a sum of Rs.90,000/- drawn on Centurian Bank, which on presentation to Karnataka Bank, Old Hubballi Branch on 06.09.2005 got dishonored with an endorsement 'account closed' by memo dated 08.09.2005.
Thereafter, legal notice was issued through a registered -4- post to the accused which was returned with an endorsement 'not claimed' on 24.09.2005, which necessitated the complainant to file the complaint.
5. On issuance of the summons, the accused appeared and plea was recorded. Since the accused pleaded not guilty trial was held.
6. The complainant got examined himself as PW.1 and exhibited documentary evidence which were marked as Exs.P.1 to P.5 and closed his side. Accused statement was recorded as contemplated under Section 313 of Cr.P.C and the accused denied the incriminatory materials found in the evidence of the complainant. The accused also got examined himself as DW.1 and got marked Ex.D.1.
7. After hearing the parties, the learned Magistrate came to the conclusion that accused has committed the offence under Section 138 of N.I. Act and ordered to pay double the cheque amount as fine amount. -5-
8. Being aggrieved by the said judgment, the accused preferred Crl.A.No.118/2017 and the First Appellate Court after securing the records and on hearing the parties, confirmed the judgment passed by the learned Magistrate. It is that judgment which is under challenge in this revision petition.
9. The learned counsel for the revision petitioner, Sri.Umesh P Hakkarki appearing on behalf of Sri.Mallikarjunswamy B Hiremath, argued that both the Courts have grossly erred in convicting the accused for the offence punishable under Section 138 of N.I. Act. He vehemently contended that the learned Magistrate has failed to note that the complainant had no lending capacity and no documents were produced to show that there was a loan transaction. He further pointed out that he had loan transaction with one Vijayalaxmi and cheque in question was handed over to Vijayalaxmi as security which has been misused by Vijayalaxmi and the -6- complainant to foist a false case against the accused and prayed for allowing the revision petition.
10. He further contended that even otherwise the ordering of double the cheque amount as fine is excessive and as such prayed for allowing the petition on that score also.
11. Per contra, learned counsel for the respondent, Sri.Rajashekar S Arani argued that the cheque came to be issued towards repayment of hand loan which has been rightly appreciated by the learned Magistrate. He further pointed out that the legal notice has not been claimed by the accused and even before the learned Magistrate at the time of recording the plea, accused did not whisper that the cheque was issued to Vijayalaxmi. He points out that in the cross-examination of PW.1, there is no suggestion made that the cheque was issued to Vijayalaxmi. He also pointed out that while recording the statement under Section 313 of Cr.P.C. the accused has not stated that he has issued the cheque in favour of Vijayalaxmi and -7- therefore, it is an afterthought and as such prayed for dismissal of the revision petition.
12. He also pointed out that in the cross-
examination it is elicited that complainant is income tax assesse. Therefore, the argument put forward by the petitioner that the complainant did not have the lending capacity looses its significance and thus, sought for dismissal of the revision petition.
13. On considering the rival contentions of the parties, the following points would arise for consideration:
1. Whether the revision petitioner has made out a case that the judgment passed by the learned Magistrate in C.C.No.2290/2016, which is confirmed by the First Appellate Court in Crl.A.118/2017 holding that the accused has committed an offence under Section 138 of N.I. Act is suffering from any legal infirmities or perversity?
2. Whether the sentence of fine ordered by the learned Magistrate is excessive?-8-
14. The answer to the above point No.1 is in the negative and point No.2 is partly in the affirmative for the following reasons:
15. Signature on Ex.P.1-cheque and the accused holding a bank account in Centurian bank is not in dispute. It is specific contention of the complainant that the accused was known to the complainant and his family members and he has borrowed a sum of Rs.90,000/- as hand loan. For hand loan, normally nobody would execute documents and hand loan is lent basically on mutual trust. Accused contended before this Court that he had borrowed the money as hand loan from one Vijayalxmi and he had issued Ex.P.1-cheque to her, which was misused by the complainant in active collusion with Vijayalaxmi.
16. It is pertinent to note that even though efforts were made seeking witness summons to Vijayalaxmi, for the reasons best known to the accused, he did not pursue to get examined Viajayalaxmi before the leaned Magistrate. -9- In the cross-examination by the defence it is elicited that the complainant is an income tax assessee. When that being so, the defence taken before this Court that the complainant did not have the lending capacity looses its significance. Moreover, the lending capacity was not questioned by the defence before the leaned Magistrate or the First Appellate Court. For the first time, before this Court in this revision petition, the lending capacity of the complainant is questioned. Hence, the said contention cannot be countenanced.
17. Further, since issuance of cheque and signature thereon stands proved, the complainant enjoys the presumption as is contemplated under Section 139 of N.I. Act. The accused did not rebut the said presumption by placing any plausible material on record though he is examined as DW.1. In his oral evidence he has never stated that the complainant is stranger to him. He has stated in his evidence that he has issued a cheque in the year 2004 to Vijayalaxmi and Kailas Chawan by giving -10- Ex.P.1 as security. As discussed supra Vijayalaxmi and Kailas Chawan are not examined. He admits that he held the bank account in Centurian Bank at Hubballi. He also admits that he has not taken any action against the complainant or Vijayalaxmi for the alleged misuse of the cheque.
18. On cumulative consideration of the aforesaid material on record, the learned Magistrate has recorded a finding that the accused has committed an offence under Section 138 of N.I. Act and has ordered double the cheque amount as fine with default sentence of simple imprisonment of six months.
19. The First Appellate Court on re-appreciation of the entire material on record, came to the conclusion that there is no material on record which would suggest that the judgment passed by the learned Magistrate was suffering from legal infirmities. Before this Court also, the learned counsel for the revision petitioner is unable to -11- persuade this Court that the judgment passed by both the Courts is suffering from any legal infirmity or perversity.
20. The learned Magistrate has ordered double the cheque amount as fine as could be seen from the judgment of the leaned Magistrate. No reason whatsoever is assigned for ordering so, nor the records would indicate that the learned Magistrate heard the accused before imposing the sentence. The said aspect of the matter is totally ignored by the First Appellate Court while confirming the judgment of the trial Court.
21. Hearing the accused on sentence and assigning reasons for passing appropriate sentence is an integral part of criminal justice system.
22. Having failed to do so by the learned Magistrate, which was ignored by the First Appellate Court, this Court is of the considered opinion that the fine amount as is ordered by the learned Magistrate cannot be countenanced in law.
-12-
23. However, Sri.Rajashekar S Arani, learned counsel for the respondent submits that the transaction is of the year 2004 and under Section 80 of the N.I. Act, for negotiable instrument where there is no interest amounts specified, the amount would carry 18% interest and the same is to be taken into consideration while modifying the sentence as ordered by the learned Magistrate. Having noticed the provision of law as is contemplated under Section 80 of N.I. Act and also having regard to the fact that the cheque is issued in the year 2004, this Court is of the considered opinion that ordering the fine amount at Rs.1,50,000/- would meet the ends of justice instead of Rs.1,80,000/- as ordered by the leaned Magistrate.
24. Hence, the following:
ORDER The criminal revision petition is allowed in part.
The conviction of the accused-revision petitioner is maintained for the offence punishable under Section 138 of N.I. Act.-13-
However, the fine amount as is ordered by the learned Magistrate and confirmed by the First Appellate Court is modified and the accused is directed to pay fine amount of Rs.1,50,000/- instead of Rs.1,80,000/- after deducting the amount already deposited before the learned Magistrate within two weeks' from the date of receipt of a certified copy of this order.
Sd/-
JUDGE Sh