Karnataka High Court
Kumara D.B vs Chikkananjaiah.S on 15 October, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:41708
CRL.RP No. 623 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.623 OF 2023
BETWEEN:
KUMARA D.B
S/O LATE BOOKEGOWDA,
AGED ABOUT 41 YEARS,
R/AT DUGGANAHALLI VILLAGE AND POST,
MALAVALLI TALUK,
MANDYA DISTRICT, PIN 571430
...PETITIONER
(BY SRI VIJAY SHETTY.B, ADVOCATE)
AND:
CHIKKANANJAIAH.S
S/O SHIVANANJAIAH,
AGED ABOUT 39 YEARS,
R/AT NO.11, 2ND FLOOR,
4TH 'E' BLOCK, OPPOSITE TO
Digitally SRI.MANJUNATHA BAKERY,
signed by RAJAJINAGAR,
MALATESH BENGALURU-560010
KC ...RESPONDENT
Location: (BY SRI KUMARA K G, ADVOCATE)
HIGH
COURT OF THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C
KARNATAKA PRAYING TO SET ASIDE THE JUDGMENT OF DISMISSAL PASSED BY
THE LV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY (CCH-56) IN CRL.A.NO.2126/2019 DATED 04.01.2023 FILED BY
THE PETITIONER HEREIN AGAINST THE JUDGMENT OF CONVICTION
AND SENTENCE PASSED BY THE SMALL CAUSES JUDGE, AND XXVI
ACMM AT BENGALURU (SCCH-9) IN C.C.NO.843/2018 DATED
31.07.2019 U/S 138 OF NI ACT BY ALLOWING THE PETITION AND TO
ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S.138 OF NI ACT.
-2-
NC: 2024:KHC:41708
CRL.RP No. 623 of 2023
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Vijay Shetty B, learned counsel for the revision petitioner and Sri Kumara K.G. learned counsel for the respondent.
2. Accused who has suffered an order of conviction dated 31.07.2019 in C.C.No.843/2018 on the file of the Judge, Court of Small Causes, Bengaluru, for the offence punishable under Section 138 of the Negotiable Instruments Act ordering to pay fine of Rs.8,50,000/- and in default to undergo simple imprisonment for six months, confirmed in Crl.A.No.2126/2019 dated 04.01.2023 on the file of the LV Addl. City Civil and Sessions Judge, Bengaluru, has preferred the present revision petition.
3. Facts of the case in brief which are utmost necessary for disposal of the present revision petition are as under:
A complaint came to be lodged under Section 200 of the Code of Criminal Procedure with the jurisdictional Magistrate by -3- NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 the complainant against the accused alleging commission of an offence under Section 138 of the Negotiable Instruments Act.
Complaint averments further reveal that accused is the child hood friend of the complainant. Accused borrowed money on different occasions from 2012 till upto 2017 and executed an on demand promissory note in a sum of Rs.7,50,000/- and towards repayment of the said sum of Rs.7,50,000/-, two cheques bearing No.346371 and 346373 dated 06.12.2017 and 13.12.2017 in a sum of Rs.4,00,000/- and Rs.3,50,000/-
respectively were issued by the accused, which on presentation came to be dishonoured with an endorsement 'funds insufficient'.
4. Complainant demanded repayment of money covered under the dishonoured cheques by issuing a legal notice which has been returned with an endorsement 'addressee left'.
Thereafter, complainant filed the complaint to take action against the accused.
5. After completing necessary formalities, learned Trial Judge took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act and summoned the -4- NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 accused. Accused appeared before the learned Trial Judge by engaging the services of an advocate.
6. Plea was recorded. Accused pleaded not guilty and therefore, Trial was held.
7. In order to prove his case, complainant got examined himself as P.W.1 and placed on record 14 documentary evidence exhibited and marked as Exs.P.1 to P.14 comprising of cheques, bank endorsement, legal notice, four postal receipts, reply notice, unserved RPAD covers, on demand pronote and statement of account.
8. In the detailed cross-examination, except suggesting to the complainant that complainant did not had the capacity to lend the amount and the documents are concocted by the complainant, no other useful material is elicited so as to disbelieve the version of the complainant or to dislodge the presumption available to the complainant under Section 139 of the Negotiable Instruments Act.
-5-NC: 2024:KHC:41708 CRL.RP No. 623 of 2023
9. Thereafter, accused statement as is contemplated under Section 313 of the Code of Criminal Procedure was recorded, wherein, accused denied all the incriminatory circumstances.
10. In order to rebut the presumption available to the complainant, accused got examined himself as D.W.1 and placed on record the statement of account maintained by him in his bank as Ex.D.1.
11. On conclusion of the recording of the evidence, learned Trial Judge heard the parties in detail and after considering the material evidence on record in a cumulative manner, convicted and sentenced the accused as referred to supra.
12. Being aggrieved by the same, accused preferred an appeal before the First Appellate Court in Crl.A.No.2126/2019.
13. Learned Judge in the First Appellate Court, after securing the records, considered the case of the parties in detail and dismissed the appeal of the accused and confirmed the order of conviction and sentence by the judgment dated 04.01.2023.
14. Being further aggrieved by the same, accused is before this Court in this revision on the following grounds:
-6-NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 The petitioner is innocent of the offence alleged by the complainant/respondent.
The Hon'ble trial court as well as the appellate court failed to appreciate the fact that, the respondent/complainant has not at all produced any document before the Hon'ble trial court that, there is liability of the accused/petitioner towards the disputed cheques amount of Rs.7,50,000/-. On that ground itself the complaint is liable to be dismissed.
The respondent in his entire complaint/evidence not stated as to when specifically the petitioner has taken an amount of Rs.2,00,000/- in the year 2012. As such, the respondent has contended that, the petitioner has taken an amount of Rs.1,00,000/- in the year 2014, but not stated as to when exactly he has taken the said amount. The respondent has further contended that, in the year 2015 the petitioner has taken the handloan of Rs.1,50,000/-. There also the respondent has not stated as to when he has taken the said amount. As per the contention of the respondent, the petitioner has taken an amount of Rs.50,000/- in the year 2016 and Rs.50,000/- in the year 2017. The above said amounts are also alleged to be paid by way of cash only. In the cross examination of PW-1 also he has not specifically stated as to when exactly taken the said cash amount. These crucial aspects have not been appreciated properly by both Trial Court and Appellate Court.
The Hon'ble Trial Court as well as Appellate Court failed to appreciate the fact that, during the cross examination of PW-1, the PW-1 has admitted that, he knows well -7- NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 about the internet banking transaction. When the PW-1 claims to have paid some amount through RTGS whey he has not transferred the remaining amount by way of RTGS is not properly explained by the respondent in his entire case. Hence, the evidence given by the PW-1 is unbelievable and the conviction ought not to have been them on the said fragile evidence.
By virtue of the evidence given by the PW-1 the complaint itself is not maintainable and same ought to have been dismissed at threshold was the simple reason that, the alleged transaction itself is barred by limitation of three years. The alleged first transaction is in the year 2012 for an amount of Rs.2,00,000/- by way of cash. As per the contention of the complainant, the petitioner has issued the disputed cheques after the year 2017 i.e., alleged last payment of the amount of Rs.50,000/-. The above said cheque bearing No. 346371 for an amount of Rs.4,00,000/- is having the date as 06-12-2017 and other cheque bearing No.346373 for an amount of Rs.3,50,000/- is having the date as 13-12-2017. Even when the accused has cross examined and questioned the PW-1 as to when the disputed cheques have been given to him, the PW-1 has answered that, the above said cheque for Rs.4,00,000/- has been given on 06-12-2017 and the other cheque for Rs.3,50,000/- has been given on 13-12-2017. When both the cheques have been given on their respective dates only, it is highly unbelievable that, the petitioner has issued the respective cheques on same day without having the amount in the bank and thereby allowing the PW1 to take legal action. Hence, the -8- NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 evidence given by the PW-1 is very clear that visible that same is unbelievable one.
The Hon'ble Trial Court as well as Appellate Court have failed to appreciate the question of law that, the claim of the respondent is time barred as per the contentions of the respondent in his complaint only. The petitioner herein has admitted that, he has taken only an amount of Rs.1,19,500/- from the respondent through bank account on different dates in the year 2013 only. He has not taken any amount from the respondent by way of cash and the amount taken by the petitioner herein has been returned to the respondent in three instalments with interest. Other than the said amount the petitioner has not taken any amount. In the present case, the alleged cheques both are dated in the year 2017. Hence, the claim of the respondent pertaining to the alleged loan of the year 2012, 2013 and 2014 is not maintainable in view of the fact that, time is barred by the limitation. If it is considered the alleged transaction of the year 2012, 2013, & 2014, the total alleged loan amount is Rs.5,50,000/-. Hence, the alleged claim of the respondent to the extent of Rs.5,50,000/- is time barred and hence the cheques alleged to have issued pertaining to the said amount of Rs.5,50,000/-is not maintainable. Hence, the cheques for Rs.7,50,000/- is not maintainable. Hence, complaint ought to have been dismissed by the Hon'ble Trial Court. The said aspect of delay has not been appreciated by the Hon'ble Trial Court. Since the ground of delay is a question of law, same can be raised in the appellate and revisional stage also.-9-
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 It is relevant to mention herein that, not mentioning the specific date of taking the alleged loan by the petitioner and not even answering the specific date of taking the alleged loan by the petitioner is fatal to the case of the complainant. Although it is true that, in each and every case it is not crucial to mention the specific date of loan transaction, but in this case, it is very crucial since with decides the complete case on that fact only, for the simple reason that, for calculating the delay specific date is must and also in view of demonetisation occurred on 08-11-2016. In fact, the evidence given by the respondent is completely unbelievable for the reason that, there was a demonetisation in the entire country on 08.11.2016. By virtue of the same all 500 and 1000 rupees notes have been demonetised and since 08-11-
2016 to almost at the end of the year 2017, the bank notes were not properly available. During the year 2017, paying an amount of Rs.50,000/- was a ridiculous thing and same is highly unbelievable to have paid by way of cash. During the year 2016 and 2017, these amounts as contended by the respondent has to be paid, same has to be paid only through account/cheque. When the respondent was well-versed with the internet banking not paid the said amounts by way of bank transfer that too at that hard time when the cash were not available is unbelievable at any stretch of imagination. Hence, paying of the subsequent amount after the period of limitation is also highly unbelievable. These aspects of question of law has not been appreciated by both the Trial Court and Appellate court.
- 10 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 Hon'ble both trial and appellate courts completely erred in not appreciating the crucial aspect in the case that, though the initially taken loan itself has not been cleared during the year 2012, 2013, 2014, 2015 and 2016, and giving again loan in the year 2017 itself is un believable at any stretch of imagination. Moreover, no document got executed by the respondent in spite of not paying the earlier loan while giving the fresh loan. These aspects are going to the root of the case of the respondent. Hence the complaint ought to have been dismissed, but the Hon'ble trail court as well as the appellate courts erred in coming to proper conclusion.
The Hon'ble Trial Court as well as Appellate Court have not properly appreciated the fact that, the respondent is not even an Income Tax Assessee and as such he is not having financial capacity to lend such huge money. Hence, during the period of demonetisation paying an amount of Rs.50,000/- and Rs.50,000/- by way of cash is unbelievable when compare to the situation during those days. The Hon'ble Trial Court as well as the Appellate Court ought to have analysed the situation, time and not mentioning the specific date by the respondent etc., to conclude as to whether the petitioner has committed the offence punishable under Section 138 of N.I. Act or not. In the present case, these important appreciations are missing and hence the judgment and sentence passed by the Hon'ble Trial Court as well as the judgment of the Appellate Court are erroneous and hence both are liable to be set-aside.
- 11 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 The Hon'ble Trial Court in its judgment only discussed about the question of law and the presumption etc., but, the Hon'ble Trial Court failed to apply the same in the existing facts of the case, and hence, the erroneous judgment has been passed. Infact, the Hon'ble Trial Court rightly held that, rebuttal of the presumption not only by way of leading evidence from the side of the accused but also by way of points obtained from the evidence of the complaint itself. In the present case on hand, the very crucial question of law regarding limitation and demonetisation have not at all been considered by the Hon'ble Trial Court. Regarding the factual aspects and situations and consequences of the demonetisation during the year 2016 and 2017 can be taken judicial note also. In view of the same the judgment passed by the Hon'ble Trial Court is erroneous and the Hon'ble Appellate Court also without going in the deep of the case dismissal of the appeal is also to be set-aside.
The Hon'ble Trial Court in para No.12 of the judgment clearly held regarding the mode of the appreciation of the evidence but the Hon'ble Trial Court has not properly considered the same in synchronise with the facts of the case. Hence, the judgment and sentence is passed by the Trial Court is liable to be set-aside and the judgment confirmed by the Appellate court is also liable to be set- aside.
In para No.13 of the judgment of the Hon'ble Trial Court, has explained regarding the suggestions made to the witness etc., but the Hon'ble Trial Court has not properly
- 12 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 considered the fact that, there is no liability from the side of the petitioner to the respondent.
The Hon'ble Trial Court has also held in para No.22 of the judgment that, accused has not stated his defence at the time of recording plea. In fact, the petitioner herein has given reply notice to the respondent's notice and the defence of the petitioner herein has been taken at the earliest vide Exhibit P10. Hence the said point does not help the case of the respondent in any way.
The Hon'ble Trial Court has not given sufficient opportunity to cross examine the PW-1 and in this regard, the petitioner herein has filed an application before the Appellate Court under Section 391 of the Code of Criminal Procedure to take further evidence by giving an opportunity to further cross examine the PW-1 by remanding the matter. The said application was also rejected by the Hon'ble Appellate Court while passing the judgment.
The contention of the Hon'ble Trial Court as well as the Appellate Court regarding not taking legal action against the respondent for misusing of the cheques is immaterial in the present set of facts and when the respondent himself is unable to prove the liability of the petitioner herein, not taking legal action for misuse of the cheques of the petitioner is not vital for the just decision of the case.
The Hon'ble Trial Court as well as the Appellate court failed to appreciate that, the cheque bearing No.346370 has been honoured in favour of some third party way-
- 13 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 back on 10-09-2011. The cheque bearing No.346372 has been honoured in favour of some third party way-back on 26-12-2012 and the Cheque bearing No.346374 has been honoured in favour of some third party way-back on 06- 12-2013. These facts are undisputed even by the respondent herein. In peculiar facts and circumstances of the case, issuing of these disputed cheques in the year 2017 is highly improbable in view of Ex.D1 document. These facts, are also not properly appreciated by the Hon'ble Trial Court and the Appellate Court.
The defence of the petitioner is that he did not raise any loans other than the RTGS transactions intermittently totalling to Rs.1,19,500/- in the year 2013. The petitioner did not raise any other loans before or after the year 2013 from the respondent. As security to the said RTGS loan transactions the 'two cheques & promissory note"
were issued by the petitioner in the year 2013 itself. The petitioner has promptly paid back the RTGS loans along with interest in March 2013, November 2013 & March 2014. But the respondent never returned the 'two cheques & promissory note" despite repeated requests and the same have been misused by the respondent to extract money and to make good for the losses he may have suffered from a common friend "Malavalli Ramesha".
Since it was a signed blank cheque, the respondent has mis-used the same.
It is also very clearly visible to the naked eye that, the disputed both the cheques are given to the respondent in the year 2013 or prior to it. The above said both the cheques are Non-CTS cheques. Giving of Non- CTS
- 14 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 cheques in the year 2017 itself is unbelievable, especially when the earlier and next cheque numbers have already been utilized before the year 2013 only. These aspects are all crucial aspects and hence the respondent has not at all proved his case.
In fact the Exhibit P.13, On Demand Promissory Note also un believable that, the respondent contends that, he has not taken the security for any earlier loan etc., The respondent categorically stated he is an M.Com graduate and that in the year 2012 he was earning a salary of Rs.12,000-13,000 only. He also admitted that the never earned taxable income till date. But still the respondent falsely claims to have given a hand loan of Rs.2,00,000/- to the petitioner in the year 2012 and on subsequent date also.
The respondent categorically stated on Seven (07) occasions in his cross-examination that the petitioner promised him repayment within three months to six months from date of borrowing, but never paid back the loans nor did the respondent initiate any legal action against the petitioner back then. "Nevertheless the respondent went on giving hand loans recklessly to the petitioner" is not at all believable at any stretch of imagination and there is no proper explanation to that effect from the respondent.
The respondent has stated that, other than the bank statement he has not produced any documents to show that he had sufficient cash with him so as to lend to the petitioner a total sum of Rs.7,50,000/- immediately.
- 15 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 As per Exhibit P-14 (respondent Bank statement) the highest bank balance the respondent admittedly had was as follows:
Year Highest bank Specific date of
balance highest balance
2012 27506.50 15/12/2012
2013 155126.00 24/10/2013
2014 20072.00 03/01/2014
2015 27303.12 03/12/2015
2016 31473.44 01/02/2016
2017 59188.50 04/10/2017
The respondent has also categorically admitted that he conducted financial transactions predominantly through internet banking and he was very well versed in internet banking.
The respondent states that he received a first cheque #346371 from the petitioner on 06/12/2017 for Rs.4,00,000/-and a second cheque #346373 along with promissory note on 13/12/2017 for Rs.3,50,000/-. The respondent has also admitted that there are no eye witnesses to the fact of petitioner issuing cheques to him in the year 2017. However, the promissory note containing witness signatures clearly indicates that the respondent has cleverly schemed/drafted to misuse the cheques and promissory note, which were taken as security during 2013.
- 16 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 The respondent has admitted that as per Exhibit D1 (petitioner bank statement) cheque #346370 passed on 10/09/2011, cheque #346372 passed on 26/12/2012, Cheque #346374 passed on 06/12/2013. Hence, it is clear from these admissions that the cheques are not issued to the respondent in recent times as claimed by him. The cheques are stale and were issued to the respondent way back in the year 2013 as security only to the RTGS loans which were not returned to the petitioner despite payback.
The respondent himself had handed a Xerox copy of the incomplete promissory note to the petitioner in the year 2013 which is furnished before this Hon'ble Court for kind perusal. In fact when already Xerox copy of the empty On Demand Promissory Note is produced before the Hon'ble trial court, it proves that, signature was done on empty document. Hence the reliance ought not to have been placed on the Exhibit P13 by the Hon'ble Trail court. The Hon'ble trial court has not at all properly considered the written arguments submitted by the petitioner herein.
The petitioner is decently employed from last ten years and never needed nor took such hand loans from the respondent. The petitioner is single and his needs are moderate. The petitioner never needed such hand loans before or after 2013. From the documents filed, it is clear that the respondent is not at all capable of lending such huge amounts of hand loan. The respondent failed to recover his money from the common friend 'Malavalli Ramesha' and in view of the same, he has filed this case on false and fabricated grounds to recover his money
- 17 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 through the petitioner just because, the petitioner has introduced him.
The respondent being an M.Com graduate himself cannot be believed to have given hand loans recklessly to the petitioner amounting to a total of Rs.7,50,000/- in parts especially when the petitioner allegedly did not pay back within promised time periods. The respondent categorically admitted that he never earned a taxable income. It can be inferred from the admission and the documents on record that the respondent had no capacity to lend. Hence, the complaint is apparently meritless and vexatious.
15. Learned counsel for the revision petitioner Sri Vijay Shetty, reiterating the grounds urged in the revision petition, vehemently contended that both the Courts have not properly appreciated the material evidence on record, especially the lending capacity of the complainant and no consideration passed on under Ex.P.13 which is an on demand promissory note inasmuch as the alleged debts were time barred debts and wrongly convicted the accused resulting in miscarriage of justice and sought for allowing the revision petition.
16. Per contra, Sri Kumara K.G., learned counsel for the respondent supported the impugned judgments.
- 18 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023
17. He further contended that there is no cross-examination of P.W.1 with regard to the contents of either Ex.P.13 or Ex.P.14 which would be sufficient enough to raise the presumption in favour of the complainant as is contemplated under Sections 118 and 139 of the Negotiable Instruments Act and in the absence of any proper rebuttal evidence, both the Courts were justified in convicting the accused for the aforesaid offence and sentencing him as referred to supra and sought for dismissal of the revision petition.
18. Having heard the parties in detail, this Court perused the material on record meticulously.
19. On such perusal of the material on record, the following points would arise for consideration:
(i) Whether the complainant has successfully established that accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act?
(ii) Whether the impugned judgment is suffering from legal infirmity or perversity?
(iii) Whether the revision petitioner makes out patent factual error in the case or impugned
- 19 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 judgment suffering from perversity so as to call for interference by this Court exercising revisional jurisdiction?
(iv) Whether sentence is excessive?
(v) What Order? 20. REGARDING POINT Nos.1 to 4: In the case on hand,
issuance of cheque and signature of the accused found therein is not in dispute. So also signature on Ex.P.13-on demand promissory note and consideration receipt is not in dispute.
The defence taken by the accused is that there was no consideration under Ex.P.13 and no legally recoverable debt under the cheque as admittedly, the loan was time barred loan.
To establish the same, except the oral evidence placed on record and Ex.D.1-statement of account filed by the accused, no other material is forthcoming on record.
21. While the complainant has stated that accused is his child hood friend and he has borrowed money time and again, same is controverted by the accused by way of oral evidence.
Suggestions made in the cross-examination does not contain the fact of time barred debt and therefore, execution of on demand promissory note under Ex.P.13 is incorrect. So also,
- 20 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 the entries found in Ex.P.14 which is statement of account is also not disputed by the accused. Ex.P.14 is marked to show the lending capacity of the complainant. Ex.P.13 is the on demand promissory note which is dated 13.12.2017.
22. If the debt is time barred, it is for the accused to establish as to why he executed Ex.P.13. Admittedly, no explanation is forthcoming for execution of Ex.P.13.
23. Under Section 118 of the Negotiable Instruments Act even Ex.P.13 carries a presumption. So also, legally recoverable debt is presumed under the cheque marked at Ex.P.1 as per Section 139 of the Negotiable Instruments Act.
24. No doubt, both the presumptions i.e., under Section 118 and Section 139 of the Negotiable Instruments Act are rebuttable presumptions.
25. Therefore, evidence of accused assumes importance in finding out whether the said presumption is suitably rebutted.
26. In the examination-in-chief, accused has denied borrowing of any amount after the year 2013 and last amount
- 21 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 that has been received by him as per Ex.D.1 is Rs.45,000/-
which is on 06.02.2013 which is paid through cheque.
27. Therefore, contentions on behalf of the accused that he did not borrow money after the year 2013 is incorrect. If accused can make a false statement against his own documents to suit his convenience, what is the evidentiary value or the probative value of the oral testimony of D.W.1 is a question especially when accused is required to place a strong rebuttable evidence on record to rebut the presumption available to the complainant under Section 118 of the Negotiable Instruments Act, insofar as Ex.P.13 is concerned and under Sections 118 and 139 of the Negotiable Instruments Act insofar as Ex.D.1 is concerned.
28. Therefore, learned Trial Judge and the learned Judge in the First Appellate Court were justified in convicting the accused holding that evidence of accused is not sufficient to rebut the presumption and thus, accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act. Therefore, this Court does not find any
- 22 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 patent, legal error or jurisdictional error in convicting the accused.
29. Accordingly, impugned judgments are to be held to be valid judgments.
30. In view of the foregoing discussion, point No.1 is answered in the affirmative and point Nos.2 and 3 in the negative.
31. REGARDING POINT No.4: As against cheque amount of Rs.7,50,000/-, learned Trial Judge has imposed fine of Rs.8,50,000/- of which, Rs.8,45,000/- is ordered to be paid as compensation to the complainant and balance sum of Rs.5,000/- is ordered to be paid towards defraying expenses of the State.
32. Since the transaction is of the year 2017, ordering payment of compensation in a sum of Rs.8,50,000/- is just and proper.
33. However, since lis is privy to the parties, imposing Rs.5,000/- towards defraying expenses of the State cannot be countenanced in law, as there was no State machinery involved
- 23 -
NC: 2024:KHC:41708 CRL.RP No. 623 of 2023 in the trial of the case. Accordingly, to that extent, impugned sentence needs interference. Hence, point No.4 is answered partly in the affirmative.
34. REGARDING POINT No.5: In view of the finding of this Court on point Nos.1 to 4 as above, the 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, sentence is modified as under:
(a) Accused is sentenced to pay fine in a sum of Rs.8,45,000/- and entire sum of Rs.8,45,000/- is ordered to be paid to the complainant as compensation.
Balance sum of Rs.5,000/- which was ordered to be paid to the State towards defraying expenses is hereby set-aside.
(iii) Time is granted for the accused to pay balance amount till 15th November 2024.
(iv) Office is directed to return the Trial Court Records with copy of this Order, forthwith.
Sd/-
(V SRISHANANDA) JUDGE Kcm/List No.: 1 Sl No.: 89