Karnataka High Court
Sri C Ashok vs Sri N Srinivasa on 4 July, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:25346
CRL.RP No. 647 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 647 OF 2021
BETWEEN:
SRI. C. ASHOK
S/O LATE CHIKKA ABBAIAH,
AGED ABOUT 60 YEARS,
R/AT NO.13, NAGAVARAPALYA,
8TH CROSS, C.V.RAMAN NAGAR POST,
BANGALORE 560 093.
...PETITIONER
(BY SRI. DAYALU K N., ADVOCATE)
AND:
SRI. N. SRINIVASA,
S/O LATE PATEL G. NARAYANAPPA
AGEDA BOUT 52 YEARS,
R/AT RAMAGONDANAHALLI VILLAGE,
Digitally
signed by VARTHUR HOBLI,
MALATESH BANGALORE-560 066.
KC
...RESPONDENT
Location:
HIGH (BY SRI. B.S. PRASAD, ADVOCATE)
COURT OF
KARNATAKA THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 22.02.2021
PASSED IN CRL.A.NO.71/2019 ON THE FILE OF THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU DISMISSING THE
CRL.A.NO.71/2019 FILED BY THE RP (APPELLANT IN THE
-2-
NC: 2024:KHC:25346
CRL.RP No. 647 of 2021
COURT BELOW) AND CONFIRMING THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 24.04.2019
PASSED IN C.C.NO.3265/2016 ON THE FILE OF THE II
ADDITIONAL CHIEF JUDICIAL MAGISTRATE, BENGALURU
RURAL DISTRICT, BENGALURU BY DISMISSING THE
COMPLAINT AND TO ACQUIT THE ACCUSED.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.K.N.Dayalu learned counsel for the revision petitioner and Sri.B.S.Prasad, learned counsel for the respondent.
2. Accused who suffered an order of conviction in C.C.No.3265/2016, for the offence punishable under Section 138 of Negotiable Instruments Act and ordered to pay Rs.2,00,10,000/- (Rupees Two Crores Ten Thousand Only) as against the cheque amount of Rs.1,00,00,000/- (Rupees One Crore Only) and out of the fine amount, a sum of Rs.2,00,00,000/- was ordered to be paid as compensation and Rs.10,000/- towards defraying -3- NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 expenses of the State. The said order of conviction and sentence was confirmed in Criminal Appeal No.71/2019, aggrieved by the same, the revision petitioner has preferred the present revision petition.
3. Facts in brief for the disposal of the revision petition are as under:
4. A criminal prosecution was launched by the respondent-complainant against the accused for the offence punishable under Section-138 of the Negotiable Instruments Act by filing a complaint with the Jurisdictional Magistrate under Section 200 of Cr.P.C. Contents of the complaint would reveal that there was a mortgage transaction between the complainant and the accused and the said mortgage transaction was evidenced by a Registered Mortgage Deed dated 07.08.2015 (Exhibit-P16).
5. Under Exhibit-P16 a sum of Rs.1,00,00,000/- was lent as mortgage money by the complainant to the -4- NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 accused. The said documents also shows that a sum of Rs.25,00,000/- lakh was paid by Cheque belonging to the wife of the complainant, which was duly encashed by the accused and the balance amount is Rs.75,00,000/- was paid by way of cash in the presence of the witnesses.
6. Towards the repayment of the said amount, the accused issued five cheques dated 15.01.2016, 20.01.2016, 25.01.2016, 30.01.2016 and 05.02.2016 drawn on HDFC Bank, Old Madras Road Branch, Bangalore. Those cheques on presentation got dishonored with an endorsement 'insufficient funds'. Legal notice was issued calling upon the payment of the amount covered under those cheques. The accused was not found during delivery time and as such, an intimation was delivered by the Postman and when there was no collection of the registered cover by the accused by visiting the post office, that the cover was returned with an endorsement 'addressee refused - returned to the sender'. Since there was no compliance to the callings of the legal notice, -5- NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 action was initiated by the complainant against the accused, for the redressal of his grievances.
7. Learned Trial Magistrate took cognizance of the offence alleged against the accused and summoned the accused. Plea was recorded. Accused pleaded not guilty therefore trial was held.
8. In order to prove the case of the complainant, the complainant got himself examined as PW-1 and placed on record 42 documents which were exhibited and marked as Exhibits-P1 to P42 comprising of five dishonored cheques, bank endorsements, copy of the legal notice, postal receipts, RPAD covers, postal acknowledgment, mortgage deed, amount ledger extract, portion of the transaction, bank account statement, form No.16, tax paid receipts, tax paid receipts of the wife of the complainant and RTC extracts of the landed properties of the complainant.
-6-
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021
9. Detailed cross-examination of PW-1 did not yield any positive result in disbelieving the version of the complainant. The Mortgage deed being a registered mortgage deed was also tried to be assailed by the accused by suggesting to PW-1 that the complainant had no financial capacity to lend a sum of Rs.75,00,000/- in cash and such a suggestion was not only denied by the complainant but also probablised as to how he got the money to lend the same to the accused.
10. Thereafter, the accused statement as is contemplated under Section 313 of Cr.P.C. was recorded by the Trial Magistrate. The accused has denied all the incriminating circumstances that were found against him in the prosecution evidence.
11. Thereafter, the accused got examined himself as DW-1 and in his own evidence, he has stated that the cheques were issued by him towards the security in respect of the mortgage transaction. In his cross examination, he admits that he is in the business of Bar -7- NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 And Restaurant and also in the business of Real Estate. He admits that the address found in Exhibit-P11 is his address. He further admits in the cross-examination that he is acquainted with the wife of the complainant and at the time of execution of Exhibit-P16, the wife of the complainant was also present. He also admits that at the time of Exhibit-P16 not only cheques were given to the complainant, but also four plots were given as security and the complainant has leased out those plots and obtained a sum of Rs.25,00,000/-. He admits that there is no mention of the blank cheques being tendered to the hands of the complainant in Exhibit-P16.
12. In his further cross-examination he admits that he has not taken any positive action against the alleged misuse of the cheques.
13. Thereafter the learned Trial Magistrate heard the parties in detail and on appreciation of the material evidence on record, convicted the accused for the offence -8- NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 punishable under Section 138 of the Negotiable Instruments Act and imposed fine as aforesaid.
14. Being aggrieved by the same, the accused preferred an before the District Court in Criminal Appeal No.71/2019.
15. Learned Judge in the first appellate court after securing the records heard the arguments in detail and in the light of the appeal grounds, took into consideration the arguments advanced on behalf of the appellants. In paragraph Nos.16 to 24 he has discussed in detail including the legal principles enunciated in the decisions relied on by the counsel for the appellant and formed a definite opinion that the conviction of the accused for the offences punishable under Section 138 of Negotiable Instruments Act is just and proper and dismissed the appeal.
16. Insofar as the imposing fine to the tune of double the cheque amount is concerned, learned Judge in -9- NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 the first appellate Court took into consideration Section 80 of the Negotiable Instruments Act, has concurred with the findings of the trial court in imposing fine to the tune of the double the cheque amount.
17. Being further aggrieved by the same, the accused is before this court in this revision petition.
18. Sri.K.N.Dayalu, learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition, vehemently contended that there was no lending capacity of the complainant insofar as the Rs.75,00,000/- is concerned. Therefore, Exhibit-P16 is not a valid document which has been relied on by the learned trial magistrate and learned judge in the First Appellate Court to convict the accused for the offence punishable under Section - 138 of the Negotiable Instruments Act and sought for allowing the revision petition.
19. In that regard, he also pointed out that the principles of law enunciated in the case of M.V. PREMA
- 10 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 CHANDRA AND ANOTHER VS. SMT. SAROJAMMA AND OTHERS reported in AIR 2015 KAR 1, wherein at paragraph Nos.16 to 18 and paragraph Nos.21 and 23, it has been held as under:
"16. Admittedly, plaintiffs were Income Tax assesses. If they could show payments of Rs.46 lakhs made through cheques in their Assessment, it is ununderstandable as to how they could make payment of Rs.49 lakhs in cash. If really the plaintiffs had encashed any Fixed Deposits to pay a sum of Rs.49 lakhs in cash, nothing came in their way to pay the same through cheques also. This part of the evidence of PW-1 has been assessed on the basis of broad preponderance of probabilities. PW-1 has admitted that he does not have any document to show that either himself or plaintiff No.2 had held cash.
17. Learned Judge has made detailed analysis in paragraph 30 at pages 33 and 34 of the judgment about the inability of the plaintiffs to trace the source of Rs.49 lakhs alleged to have been paid in cash. Hence it is relevant to extract the following paragraph 30 of the judgment:
- 11 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 "30. It is the arguments learned advocate for the defendants that the plaintiffs have failed to show the source of these amounts paid under various cheques.
Exs.P.71 to 75 are the Xerox copy of F.D.Receipts which contains the signatures, but it does not refer who are the authorized officer of IOB where the Fixed Deposit said to have been kept, and Ex.P.71 stands in the name of Jamuna, W/o Premachandra, Ex.P.72 stands in the name M.P.Vijetha, D/o Premachandra, Exs.P.73 to 75 stand in the name of Premachandra, and total amount of Fixed Deposit Rs.50,00,000/-, but Exs.P71 to 73 were matured on 05.07.2007, when that is so, question of borrowing loan on these Fixed Deposits by the Plaintiff No.1 does not arise. Exs.P.74 and 75 reveals that these Fixed Deposits are matured on 15.12.2008. So, it is very clear that these Fixed Deposits were not in existence as on the date of Ex.P.67 or prior to it. Further of course, back of Ex.P.74 reveals that the said Fixed Deposit was renewed on 13.05.2009, but the amount of said Fixed Deposit was Rs.10,87,713/-. So, it is hard to believe that he and his wife had amount of Rs.25,00,000/- on these Fixed Deposits. Even PW.3 has not stated anything about the sanction of loan on F.D. amount. So, these are falsifies the evidence of PW.1 that amount of Rs.25,00,000/- paid by him through Cheque No.
- 12 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 424662 on 13.09.2008 was the amount received by him by obtaining loan on his own Fixed Deposit amounts."
18. On reassessment of the evidence, we are of the considered opinion that though the plaintiffs have been able to prove the execution of Ex.P67, they have not been able to prove the payment of Rs.49 lakhs in cash on 13.09.2008 and further they have failed to prove Ex.P67 as an out and out agreement of sale. Hence point no. 1 is answered in the affirmative."
"21. Agreement is dated 13.09.2008. six months time fixed in Ex.P67 expired on 13.03.2009. No notice was got issued. Suit was filed on 20.08.2010 i.e., almost one year five months after the lapse of six months time stipulated in Ex.P67. Yogananda died on 01.06.2010 i.e., long after the expiry of six months."
"23. We are unable to agree with Sri.R.L.Patil, learned counsel, on this aspect. Schedule property is described as an agricultural land in Ex.P67. Reality is that substantial portion of the land had already been converted into non-agricultural purpose prior to executing Ex.P67. Apart from this 60 to 70 RCC houses were already in existence in the suit land as on the date of executing Ex.P67.
- 13 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 The approximate value, even as per the very admission of PW-1, was valued between Rs.35 to 40 lakhs. Land in question is in Coorg District and is by the side of Cauvery river. Entire Coorg District is known for attracting tourists from different parts of the country. Such being the case, the property in question is very much potential to be used for attracting tourists. As such plaintiffs, were expected to exercise their right of specific performance at the earliest without giving room for any laches. It need not be reiterated that laches disentitle the plaintiffs to have the relief of specific performance which is an equitable relief. Learned Judge has dealt with all these aspects meticulously. Hence, we are the considered opinion that the learned Judge is justified in answering Issue No. 2 in the negative. Accordingly, we answer Point No. 2 in the affirmative."
20. He further pointed out that in the event of this Court maintaining the conviction of the accused for the offences punishable under Section 138 of the Negotiable Instruments Act, the Court may consider the deposit of Rs.60,00,000/- before the first appellate court, as per the direction of the first appellate court and this Hon'ble Court
- 14 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 at the time of passing the suspension of sentence and reduced the fine amount reasonably.
21. Per contra Sri.B.S.Prasad, learned counsel for the complainant/respondent supported the impugned judgment.
22. He further contended that Exhibit-P16 is a registered document and till today no action has been taken by the accused with regard to the alleged non- capacity of payment of Rs.75,00,000/- insofar as recitals of Exhibit-P16 is concerned. He also pointed out that there is specific answer in the cross-examination of PW-1, that Rs.75,00,000/- was kept by the complainant in his house towards construction of the complex and the same has been lent to the accused and when there is a registered document, the recitals therein cannot be brushed aside easily only on the basis of the averments made by the accused especially when there is no reply to the callings of the legal notice.
- 15 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021
23. He also argued that the theory of the misuse of the cheque having been not properly proved by the accused, the trial magistrate considering the oral and documentary evidence placed on record convicted the accused for the offences punishable under Section 138 of the Negotiable Instruments Act is just and proper and sought for dismissal of the revision petition.
24. Further, insofar as the alternate submission is concerned, learned counsel Sri.B.S.Prasad contended that the amount of Rs.1,00,00,000/- having not been paid by the accused till there was a direction by the first appellate court and by this Court, and even now only a sum of Rs.60,00,000/- is in deposit and that the trial court and the first appellate court were justified in imposing the double the cheque amount as the fine in the addendum facts and circumstances of the case and sought for dismissal of the revision petition in toto.
25. Having heard the parties in detail, this Court perused the material on record meticulously. On such
- 16 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 perusal of the material on record, it is found that cheques being handed over by the accused to the complainant is not in dispute. So also the signatures found in the cheques are not in dispute.
26. According to the accused, those cheques were given as security. Where was the necessity to issue cheques and what was the transaction under which the aforesaid cheques came to be issued, are questions that remains unanswered, on behalf of the accused, especially when Exhibit-P16 is not denied by the accused. At one breath, the accused denies the execution of the Exhibit- P16. If so, there was neither necessity to give the cheques as security nor any plots as contended by the accused. At the second breath, accused contends that the cheques have been misused.
27. Why five signed cheques that too in a sum of Rs.20 lakhs each would be parted away by the accused to the complainant is a question that again remains unanswered.
- 17 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021
28. Admittedly, as per the version of the accused he came into contact with the wife of the complainant for the first time at the execution of Exhibit-P16. A sum of Rs.25 lakhs mentioned in Exhibit-P16 was paid through the cheque is the amount that was a loan from the account of the wife of the complainant to the accused.
29. If the wife of the complainant and complainant are total strangers and no transaction has taken place, why the accused did not return the sum of Rs.25 laksh to the wife of the complainant is a question that remains unanswered.
30. Crowning all these aspects of the matter, the accused did not choose to receive the legal notice, nor reply the same. Admittedly, the cover in which the legal notice was sent was refused by the accused. Accused admits that the address on Exhibit-P11 which is the returned cover, is that of the his address.
- 18 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021
31. Under such circumstances, in the absence of any probable material facts placed on record, it should be construed that the accused knew the contents of the cover and therefore, he has refused to receive the registered cover willfully.
32. Even otherwise, soon after the summons were served to the accused along with the copy of the compliant and documents, he had a fair chance of refuting the contents of the legal notice. Since he also came to know the alleged misuse, as is contended by him, on the day he put in his first appearance before the Trial Magistrate, as a normal prudent person he would not keep quite if there was misuse of the cheques that too to the tune of Rs.1 crore. No action has been taken by the accused as is admitted by him in his cross-examination in respect of the alleged misuse of the cheques.
33. Under such circumstances, the material documents placed on record by the complainant especially the income tax return, tax paid receipts, landed property
- 19 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 documents and the oral testimony of PW-1 has been rightly appreciated by the learned Trial Magistrate while upholding that there was a transaction of mortgage between the complainant and the accused as is evidence in Exhibit-P16 and convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.
34. Learned judge of the first appellate court has bestowed his best attention in the light of the grounds urged on behalf of the appellant, not only while confirming the conviction order but also maintaining the fine amount awarded by the trial magistrate which is double the cheque amount.
35. The principles of law enunciated in the decisions relied on by the counsel for the appellant (accused) has been discussed at length by the learned judge in the first appellate court in the impugned judgment while confirming the judgment of conviction and order of sentence.
- 20 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021
36. This Court, that too, in the revisional jurisdiction cannot revisit into the factual aspects of the matter unless they are patently defective as is held in the case of AMITH KAPOOR vs. RAMESH CHANDER AND ANOTHER reported in (2012) 9 SCC 460.
37. Having regard to the scope of the revision, and that there is a registered document which has not been questioned in accordance with law by the accused till today, this Court cannot take a different opinion only based on the oral testimony of PW-1. More so, when there is a clear admission in the cross-examination that he came into contact with the wife of the complainant on the day when Exhibit-P16 came to be executed.
38. When Exhibit-P16 is indirectly admitted by the accused in his cross-examination, this Court does not find any good reasons to annul the findings recorded by the learned trial magistrate and confirmed by the first appellate court. Moreover, there is a specific averment in the exhibit-P16 which is a registered document itself that a
- 21 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 sum of Rs.25 lakh has been paid by cheque belonging to the wife of the complainant and the same is encahsed by the accused. What was the transaction that has taken place between the wife of the complainant and the accused is not even spelt out by the accused in his examination-in-chief. Why would he keep Rs.25 lakh credited to his account and not repay the same is not explained by the accused in his examination-in-chief. Till today there is no material to show that he has repaid a sum of Rs.25 lakh to the wife of the complainant. Apart from mentioning a sum of Rs.25 lakh paid through cheque, there is also a mention that the balance sum of Rs.75 lakh of the mortgaged money was paid in cash. The same is acknowledged in the presence of the witnesses to Exhibit- P16. Accused did not choose to summon any of the witnesses to Exhibit-P16 to establish that the transaction as is enunciated in Exhibit-P16 has not at all taken place.
39. Further, the complainant enjoys the presumption under Section-139 of the Negotiable
- 22 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 Instruments Act. In the attendant facts and circumstances of the case discussed in detail by the trial magistrate and the learned judge in the first appellate court and by this Court referred to supra, the trial magistrate was justified in raising the presumption under Section 139 of the Negotiable Instruments Act.
40. No doubt such a presumption is a rebuttable presumption in order to rebut the said presumption, except the oral testimony of the accused, which is also inconsistent.
41. Having regard to the answers obtained in the cross-examination, this Court is of the considered opinion that the rebuttal evidence is not sufficient enough to hold that the accused has not committed the offence punishable under Section 138 of the Negotiable Instruments Act.
- 23 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021
42. Accordingly, the conviction order passed by the trial magistrate confirmed by the first appellate court, needs no interference in this revision petition.
44. Having said that, the next aspect that this court is required to consider in this revisional jurisdiction is that whether the sentence is excessive.
45. In the case on hand, double the cheque amount has been imposed by the trial magistrate for the offence punishable under Section - 138 of the Negotiable Instruments Act and Rs.10,000/- additional amount towards the defraying expenses of the State.
46. Learned judge in the first appellate court, in his judgment had discussed in detail and justified the imposition of double the cheque taking into consideration Section 80 of the Negotiable Instruments Act, payment of Rs.60 lakhs by virtue of the directions issued by the first appellate court and this cannot be lost sight of while considering the sentence aspect of the matter.
- 24 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021
47. Even though mortgage deed says that the interest clause to an extent of 24% per annum, since the property is given as security, agreeing for the interest at 24% p.a., cannot be countenanced by law especially when the matter is taken up on the civil side.
48. Further, a sum of Rs.60 lakh has been withdrawn by the complainant under the order of this Court.
49. Be it what it may, since a civil suit is also pending between the parties and the same is subject matter of Regular First appeal before this Court, expressing any opinion on the said aspect of the matter would definitely hamper the rights of the parties.
50. All that this Court can opine is that if any amount is paid in this criminal prosecution, there cannot be double benefit to the complainant in the civil suit which is now pending in the Regular First Appeal with that observation this Court is of the considered opinion that if a
- 25 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 sum of Rs.20 lakh is reduced from the fine amount the ends of justice would be met.
51. Accordingly, following order:
ORDER
i) Criminal revision petition allowed in part.
ii) While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, fine amount awarded by the trial magistrate confirmed by the first appellate court is reduced to Rs.1,80,00,000/-
(Rupees One Crore Eighty Lakhs Only) and the entire amount of Rs.1,80,00,000/- is to be paid as compensation to the complainant on or before 15.08.2024.
iii) Since there is reduction in a sum of Rs.20 lakh, in the fine amount it is also to be made clear that if the reduced amount is not paid by the accused within the stipulated period,
- 26 -
NC: 2024:KHC:25346 CRL.RP No. 647 of 2021 the simple imprisonment imposed needs to be increased from one year to two years.
iv) Further, a sum of Rs.10,000/- awarded by the trial magistrate confirmed by the first appellate court towards defraying expenses of the State is hereby set-aside.
v) Office is directed to return the trial court records with a copy of this order forthwith.
Sd/-
JUDGE JJ List No.: 1 Sl No.: 38