Karnataka High Court
Chandrashekara G S vs Dayanand on 26 November, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:48467
CRL.RP No. 246 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 246 OF 2024
BETWEEN:
CHANDRASHEKARA G.S,
S/O GOVINDAPPA,
AGED ABOUT 46 YEARS,
OCC: BUSINESS,
R/AT NO.237/03, NEW NO.481,
2ND CROSS, MARAMMA TEMPLE ROAD,
ANJANAPURA POST, BENGALURU - 560 108.
...PETITIONER
(BY SRI SANTHOSH KUMAR M.B, ADVOCATE)
AND:
DAYANAND,
S/O HANUMANTHAPPA,
Digitally AGED ABOUT 46 YEARS,
signed by R/AT H.RAMPURA VILLAGE,
MALATESH
KC BIRUR HOBLI, KADUR TALUK,
CHIKKAMAGALURU DISTRICT.
Location:
HIGH ...RESPONDENT
COURT OF (BY SRI RAVI KUMAR K.N, ADVOCATE)
KARNATAKA
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
SENTENCE DATED 05.01.2023 PASSED BY THE I ADDITIONAL
CIVIL JUDGE AND J.M.F.C., KADUR IN C.C.NO.1473/2018 AND
ORDER DATED 10.11.2023 PASSED BY THE PRINCIPAL
-2-
NC: 2024:KHC:48467
CRL.RP No. 246 of 2024
DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU IN
CRL.A.NO.22/2023 AND ACQUIT THE PETITIONER BY
ALLOWING THE REVISION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Shri.Santhosh Kumar.M.B., learned counsel for the petitioner.
Shri.Ravi Kumar.K.N., learned counsel for the respondent is absent.
2. Accused who suffered an order of conviction in C.C.No.1473 of 2018 for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to pay fine of Rs.6,05,000/-; out of which, a sum of Rs.6,00,000/- to be paid as compensation to the complainant and balance sum of Rs.5,000/- towards defraying expenses of the State, confirmed in Criminal -3- NC: 2024:KHC:48467 CRL.RP No. 246 of 2024 Appeal No.22 of 2023 has preferred the present revision petition.
3. Facts in the nutshell for disposal of the revision petition are as under:-
A complaint came to be lodged under Section 200 of Cr.P.C. alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act by contending that accused came into contact with the complainant through his brother who has been residing in Bengaluru. Accused approached the complainant for financial assistance in a sum of Rs.6,00,000/- for the purpose of his family necessities and business purposes, on 10.01.2018, with a promise to repay the same within a period of six months. Accused failed to repay the same as agreed. On demand, issued a cheque bearing No.722472 dated 01.06.2018, which on presentation came to be dishonored with an endorsement, "funds insufficient".
4. Legal notice was issued by the complainant calling upon the accused to repay the amount covered -4- NC: 2024:KHC:48467 CRL.RP No. 246 of 2024 under the cheque. Despite the said legal notice, there was no compliance to the issuance of notice, resulting in filing a complaint against the accused for taking action.
5. After completing the necessary formalities, presence of the accused was secured by the learned Trial Magistrate. Plea was recorded. Accused pleaded not guilty. Therefore, trial was held.
6. In order to establish the case of the complainant, complainant got examined himself as PW-1 and placed on record six documents, Exs.P1 to P6 comprising of dishonored cheque, bank endorsement, copy of the legal notice, postal receipts, postal track consignment record and RTC extracts.
7. Detail cross examination of PW.1 did not yield any positive material so as to disbelieve the case of the complainant not to dislodge the presumption available to the complainant under Section 139 of the Negotiable Instrument Act.
-5-
NC: 2024:KHC:48467 CRL.RP No. 246 of 2024
8. Thereafter, accused statement as is contemplated under Section 313 Cr.P.C. was recorded by the Trial Magistrate wherein accused has denied all the incriminatory materials.
9. Subsequent thereto, accused, in order to rebut the presumption available to the complainant, stepped into the witness box and got examined himself as DW-1 denying the transaction in toto.
10. In cross examination of DW-1, he admits that the cheque in question belongs to him and signature found therein is that of his signature.
11. Learned Trial Magistrate thereafter heard the parties in detail and on cumulative consideration of oral and documentary evidence available on record, convicted the accused for the aforesaid offence and sentenced him as referred to supra.
12. Being aggrieved by the same, accused filed an appeal before the District Court in Criminal Appeal No.22 of 2023.
-6-
NC: 2024:KHC:48467 CRL.RP No. 246 of 2024
13. The learned Judge in the First Appellate Court after securing the records heard the parties in detail and by judgment dated 10.11.2023 dismissed the appeal by the accused and upheld the order of conditional sentence.
14. Being further aggrieved by the same, the accused is before this Court in this revision petition.
15. Shri Santhosh Kumar.M.B., learned counsel for the revision petitioner reiterating the grounds in the petition contended that the learned Trial Magistrate failed to note the effect of cross-examination and the principles of law enunciated by the Hon'ble Apex Court in the case of Rohitbai Jivanlal Patel Vs. State of Gujarat and another1. and the principles of law enunciated in Basavalingappa Vs. Mudibasappa2 and wrongly convicted the accused resulting in miscarriage of justice and sought for allowing the revision petition.
1 (2019) 18 SCC 106 2 (2019) 6 SCR 555 -7- NC: 2024:KHC:48467 CRL.RP No. 246 of 2024
16. Counsel for respondent absent. In the light of the argument put-forward on behalf of the complainant/ revision petitioner, this Court perused the material on record meticulously.
17. On such perusal of the material on record, it is crystal clear that the cheque marked at Ex.P1 to the complainant, not to the accused and there is no dispute of signature found therein. According to the complainant, he has lent a sum of Rs.6,00,000/- as financial assistance to the accused. Lending capacity was established by virtue of RTC register extract produced at Ex.P6.
18. Since the initial burden has been discharged by the complainant, the learned Trial Magistrate was justified in raising the presumption under Section 139 of the negotiable Instrument Act in favour of the complainant.
19. No doubt, it is a rebuttable presumption. In order to rebut the presumption, accused stepped into the witness box and except the oral testimony of accused, there is no other material on record. Oral testimony of the -8- NC: 2024:KHC:48467 CRL.RP No. 246 of 2024 accused at the most can be considered as self-serving testimony. In the absence of any corroborative evidence placed on record by the accused especially not taking any criminal action against the complainant for the alleged misuse, Trial Magistrate was of the opinion that the rebuttal evidence placed on record was not sufficient to rebut the presumption even after following the principles of law in the case of Rohitbai Jivanlal Patel and Basavalingappa (referred to supra) and recorded an order of conviction.
20. Learned Judge in the First Appellate Court re- appreciated the material evidence on record and rightly upheld the conviction. Order of the Trial Magistrate and learned Judge in the First Appellate Court is based on sound reasons.
21. Moreover, the principles of law enunciated in the case of Rangappa Vs. Shri Mohan3 and also in the 3 (2010)6 SCR 507 -9- NC: 2024:KHC:48467 CRL.RP No. 246 of 2024 case of Rajesh Jain Vs. Ajay Singh4 by the Hon'ble Apex Court.
22. Therefore, this Court, that too in the criminal jurisdiction, cannot re-appreciate the factual aspects of the matter, especially while appreciating the material evidence on record placed by both the parties in annulling the findings recorded by both the Courts. Accordingly, conviction order as against the revision petitioner needs to be maintained.
23. A sum of Rs.6,10,000/- has been imposed by the Trial Magistrate as the fine amount, of which, a sum of Rs.6,05,000/- is ordered to be paid as compensation and balance amount of Rs.5,000/- towards the defraying expenses of the State.
24. Since lis is privy to the parties and no State machinery is involved, imposing fine of Rs.5,000/- towards the defraying expenses of the State cannot be countenanced in law. Hence, I pass the following: 4
(2023)13 SCR 788
- 10 -
NC: 2024:KHC:48467 CRL.RP No. 246 of 2024 ORDER
i) The 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 Instrument Act, fine amount of Rs.6,10,000/- (Rupees Six Lakhs Ten Thousand only) imposed by the Trial Magistrate is reduced to a sum of Rs.6,05,000/- (Rupees Six Lakhs Five Thousand only). Entire sum of Rs.6,05,000/- (Rupees Six Lakhs Ten Thousand only) is ordered to be paid as compensation to the complainant on or before 31st December, 2024, failing which, the simple imprisonment ordered by the Trial Magistrate shall be undergone by the revision petitioner.
iii) Amount of Rs.5,000/- (Rupees Five Thousand only) imposed by the Trial Magistrate and confirmed by the First Appellate Court towards defraying expenses of the State is hereby set aside.
Sd/-
(V SRISHANANDA) JUDGE DH