Karnataka High Court
Dr.Sanjay S/O. Ganapathi Rao Dange vs Dr.V.S.Veeranna S/O. Late V Sharanappa on 16 February, 2018
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
Crl.R.P.No.2215/2013 C/w. Crl.R.P.No.2214/2013
IN CRL.R.P.NO.2215 OF 2013:
BETWEEN
DR.SANJAY S/O.GANAPATHI RAO DANGE
AGE: 44 YEARS, R/AT: DANGE NURSING HOME
OPP. TOWN POLICE STATION
P.B. ROAD CROSS, HAVERI TOWN,
DIST:HAVERI
... PETITIONER
(BY SRI.MRUTYUNJAY TATA BANGI, ADVOCATE)
AND
DR.V.S.VEERANNA S/O. LATE V SHARANAPPA
AGE 60 YEARS, R/O: DOOR NO.14, W.NO.15
S.J. COLLEGE ROAD, GANDHI NAGAR,
BELLARY
... RESPONDENT
(BY SRI.M.AMEREGOUDA, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S
397(1) R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE
ORDER PASSED BY THE FAST TRACK COURT-I, BELLARY,
DATED 16.04.2013 PASSED IN CRL.A.NO.129/2012 AND
THE ORDER PASSED BY THE PRL. CIVIL JUDGE & JMFC,
BELLARY, DATED 10.10.2012 PASSED IN
C.C.NO.1138/2008 CONVICTING THE PETITIONER FOR
THE ALLEGED OFFENCE U/S 138 OF NI ACT, AND ACQUIT
THE PETITIONER FOR THE OFFENCES P/U/S 138 OF NI
ACT.
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IN CRL.R.P.NO. 2214 OF 2013:
BETWEEN
DR.SANJAY S/O. GANAPATHI RAO DANGE
AGE: 44 YEARS, R/O: DANGE NURSING HOME
OPP: TOWN POLICE STATION
P.B.ROAD CROSS, HAVERI TOWN,
DIST: HAVERI
... PETITIONER
(BY SRI.MRUTYUNJAY TATA BANGI, ADVOCATE)
AND
DR.V.S.VEERANNA S/O. LATE V SHARANAPPA
AGE 60 YEARS, R/AT: DOOR NO.14, W.NO.15,
S.I.COLLEGE ROAD, GANDHI NAGAR, BELLARY
... RESPONDENT
(BY SRI.M.AMEREGOUDA, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S
397(1) R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE
ORDER PASSED BY THE FAST TRACK COURT-I, BELLARY,
DATED 16.04.2013 PASSED IN CRL.RP.NO.192/2012 AND
THE ORDER PASSED BY THE PRL. CIVIL JUDGE & JMFC,
BELLARY, DATED 10.10.2012 PASSED IN
C.C.NO.1138/2008 CONVICTING THE PETITIONER FOR
THE ALLEGED OFFENCE U/S 138 OF NI ACT, AND ACQUIT
THE PETITIONER FOR THE OFFENCES P/U/S 138 OF NI
ACT.
THESE PETITIONS COMING ON FOR ORDERS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
These revision petitions are directed against the judgment confirming the order of conviction passed by the Fast Track Court-I, Ballari dated 16.04.2013 in :3: Crl.A.No.129/2012 in Crl.R.P.No.2215/2013 and Crl.R.P.No.192/2012 in Crl.R.P.No.2214/2013 and the order passed by the Prl. Civil Judge and JMFC, Ballari dated 10.10.2012 in C.C.No.1138/2008 convicting the petitioner for the offences punishable under Section 138 of N.I. Act.
2. For the purpose of convenience, the parties are referred to as per their ranking before the trial Court.
3. The terms of the complaint are that a cheque came to be issued by the accused to the complainant in discharge of the liability of Rs.6,00,000/-. The complainant claims that the cheque was issued on 10.06.2008 by the accused and was dated the same day. On presentation of the same for payment by the complainant, it came to be dishonored with an endorsement stating that "insufficient funds" on 09.09.2008 and thereafter the complainant issued a notice to the accused on 22.09.2008 calling upon the accused to pay the cheque amount within 15 days. The :4: learned JMFC found the accused guilty and convicted for the offence punishable under Section 138 of N.I. Act and the accused is sentenced to pay fine of Rs.6,05,000/-. In default to deposit the fine amount, he shall undergo simple imprisonment for 6 months. Acting under Section 357(1)(b) of Cr.P.C. Out of fine amount, an amount of Rs.6,00,000/- is ordered to be paid to the complainant as compensation amount. Insofar as the complainant is concerned, he sought for enhancement of the amount and insofar as the accused, who is sought for setting aside the entire order passed by the learned Prl. Civil Judge and JMFC, Ballari in C.C.No.1138/2008.
4. The complainant in order to establish his case got himself examined as PW1 and another witness as PW2 and got marked the documents as Exs.P1 to P8. After the evidence of complainant side, statement of the accused under Section 313 of Criminal Procedure Code was recorded.
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The defence of the accused was one of the total denial. On behalf of the defence, the accused got himself examined as DW1 and got marked the documents as Ex.D1 and D2 during the course of cross- examination of PW1. After examination of the oral and documentary evidence on record, the learned Judge has come to the conclusion that the prosecution has established the case against the accused beyond all reasonable doubt. Accordingly, the Trial Judge has convicted the accused for the aforesaid offence and sentenced him accordingly.
5. Learned counsel for the complainant submits that there was no legally recoverable debt nor the complainant was man of resources to lend an amount of Rs.6,00,000/-. Further the defence that a cheque was lost when he was traveling in a bus in respect of which he also lodged the complaint.
6. Learned counsel for the complainant submits that the accused disputing the presence of legally recoverable debt. For which the learned counsel :6: for the accused submits that insofar as negotiable instrument is concerned, it is wholly marked as legally recoverable debt and misuse of cheque or other instrument is concerned the debt cannot be created.
7. Learned counsel for the petitioner in both the petitions places reliance on the judgment in the case of Rangappa Vs. Mohan reported in 2010 AIR SCW 2946, wherein it is held that and in the case of John K.Abraham vs. Simon C.Abraham and another reported in (2013) 14 Scale 589 and submits that dishonor of cheque on account of stop payment instructions sent by the accused to Bank in respect of post dated cheque, Section 138 of N.I. Act is attracted. Existence of legally recoverable debt or liability is matter of presumption under Section 139 of N.I. Act.
8. The key points are i) the cheque is a negotiable instrument; ii) the benefit of presumption under Section 118 of N.I. Act. In such cases the aggrieved person, who issued the said instrument can :7: seek for setting aside of the instrument. Thus, the value of the negotiable instrument becomes zero.
The learned counsel for the accused submits that the complainant is an income tax assessee and should maintain records regarding the payment of Rs.6,00,000/- from his account, it is not within the scope of the case. However, for any violation of the Income Tax Act, competent authorities are there to take care of.
A negotiable instrument is vulnerable to lose the presumption under Section 118 of N.I. Act. More particularly, when the fraud is established. But in the context of the case, there is no trick or fraud is appeared to have played by the accused.
9. Further, the learned counsel for the petitioner submits that the cheque was lost when he was traveling in a bus on 05.07.2008, but whether it was blank cheque or filled cheque is not mentioned and he has also not mentioned that only the cheque or :8: cheque book was lost or the entire baggage was lost during traveling.
Learned counsel for the petitioner would submit that whether the petitioner signed all the cheques when the cheque book was lost. It was clarified that it was the only one cheque that was signed and the amount and name of the payee was not filled and also lodged a complaint regarding the said incident.
If the cheque was really lost, there was no impediment for the accused to file police complaint against the complainant for having illegally connecting the document as valuable to cheat the petitioner. However, the learned counsel would submits that the complainant had no source of income to possess Rs.6,00,000/- to lend it to others. In this connection, the learned counsel for the complainant would submit that the petitioner is a professor and having handsome salary.
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It is also necessary to mention that copy of the complaint said to have been lodged by the accused is not produced before the Court.
10. Learned counsel for the complainant would submit that he is supported by presumption, whether the presumption was rebutted or it got vanished in the wind because the flaws in consent is to the satisfaction of the Court on the strength of the evidence before it, and not on the basis of the claim of the complainant or the accused.
11. Learned counsel for the accused would submit that he requested for clubbing of both matters to dispose of the same through common order and the learned Judge, Fast Track Court-I, Ballari did not accept. If that were to be the case, not clubbing connected cases by the learned Judge is neither proper nor justifiable.
In the overall circumstances of the case, I do not find any irregularity, illegality or infirmity in the order passed by the Fast Track Court-I, Ballari. : 10 :
12. At the same time, in the appeal preferred in Crl.A.No.129/2012, the learned Judge has enhanced the fine amount to Rs.10,25,000/- from Rs.6,05,000/-. Learned counsel for the petitioner/accused would submit that levy of fine amount is high and exorbitant.
However, the learned counsel for the complainant/respondent defends it.
13. The amount of fine marked at Rs.10,25,000/ is very much on the higher side and requires to be reduced to Rs.7,50,000/-. In default of deposit of the said fine amount, he shall undergo S.I. for one year. Out of the above said amount Rs.25,000/- shall be paid towards fine amount and the remaining amount of Rs.7,25,000/- shall be paid to the complainant as compensation.
Accordingly, the revision petition No.2215/2013 is rejected and the revision petition No.2214/2013 is partly allowed.
Sd/-
JUDGE Vnp*/Msr