Karnataka High Court
Mahadevi W/O Nagnath Mulge, vs Putlabai W/O Anneppa Mallasure, on 16 August, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 16TH DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL REVISION PETITION No.2607/2011
C/W
CRIMINAL REVISION PETITION No.2606/2011
IN CRL.R.P. No.2607/2011
Between:
Mahadevi W/o Naganath Mulge
Age: 41 years, Occ: Teacher in
Govt.Higher Primary School
Inchoor Taluk: Bhalki
R/o Near Karanja Office
Bhalki Taluk: Bhalki
District: Bidar
... Petitioner
(By Sri Shivanand V.Pattanshetti, Advocate)
And:
Putlabai W/o Anneppa Mallasure
Age: 55 years, Occ: Household
R/o Bhalki, Taluk: Bhalki
District: Bidar
... Respondent
(Notice served)
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This Criminal Revision petition is filed under Section
397 R/w 401 of Cr.P.C. praying to set aside the judgment
dated 26.11.2011 of Fast Track Court-II Bidar (Camp at
Bhalki) in Crl. Appeal No.58/2010 and further set aside the
judgment of conviction and order of sentence dated
28.08.2010 of JMFC Court, Bhalki in C.C.No.115 of 2005 for
the offence punishable under Section 138 of NI Act and
consequently acquit the petitioner.
IN CRL.R.P. No.2606/2011
Between:
Mahadevi W/o Naganath Mulge
Age: 41 years, Occ: Teacher in
Govt.Higher Primary School
Inchoor Taluk: Bhalki
R/o Near Karanja Office
Bhalki Taluk: Bhalki
District: Bidar
... Petitioner
(By Sri Shivanand V.Pattanshetti, Advocate)
And:
Anneppa S/o Tippanna Mallasure
Died by LRs.
Shivakumar S/o Anneppa Mallasure
Age: 36 years, Occ: Business
R/o Bhalki, Taluk: Bhalki
District: Bidar
... Respondent
(Notice served)
This Criminal Revision petition is filed under Section
397 R/w 401 of Cr.P.C. praying to set aside the judgment
dated 26.11.2011 of Fast Track Court-II Bidar (Camp at
Bhalki) in Crl. Appeal No.59/2010 and further set aside the
judgment of conviction and order of sentence dated
28.08.2010 of JMFC Court, Bhalki in C.C.No.114 of 2005 for
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the offence punishable under Section 138 of NI Act and
consequently acquit the petitioner.
These petitions coming on for final hearing, this day,
the Court made the following:
ORDER
The petitioner is common in both the revision petitions. Therefore both the cases are taken together and a common judgment is passed. I have heard the arguments of the learned counsel for the petitioner in both the cases. Respondents though served with the notice remained unrepresented. Before adverting to the grounds urged before this Court and argument submitted by the learned counsel for the petitioner, it is just and necessary to have the brief factual matrix of the case involved in the above said cases.
2. A lady by name Putlabai respondent in Crl.R.P.No.2607/2011 filed a Private Complaint against the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred to as ' NI' Act), in respect of a cheque alleged to have 4 been issued by the petitioner-accused for a sum of Rs.1,50,000/- and the said cheque was presented on 02.12.2004 before the Canara bank and same was returned as bounce on 18.01.2005. The complainant has issued a notice to the accused dated 11.12.2005 as the same has not been complied, the complainant lodged a case in CC No.115/2005.
3. So far as Criminal Revision Petition No.2606/2011 is concerned, one Mr. Anneppa (respondent) has filed a similar complaint against the accused (petitioner herein) for the said offences under Section 138 of NI act, that the accused has taken an amount of Rs.1,50,000/- and issued a cheque for the repayment of the same on the same day 08.12.2004 and the same was presented on 21.12.2004 and bank has issued an endorsement on 18.01.2005 stating insufficient funds. In the above said case a notice was issued on 11.12.2005 as no compliance was made by the accused. A criminal complaint was lodged in 5 C.C.No.114/2005.
4. The accused has contested the above said proceedings in both the criminal cases and specifically taken up the defence that, said cheques were not issued for repayment of any debt or liability, on the other hand, the accused has lost his cheque book and the same has been misused by the complainants in both the cases by misusing the cheque leaves for the purpose of wrongful gain by filling up the amount in the cheques.
5. In both the cases, the accused was tried and the trial Court has convicted the accused for the offence under Section 138 of NI Act and levied a fine of Rs.1,50,000/-in both the cases and in default, he shall undergo simple imprisonment for six months in both the cases and also awarded compensation of Rs.1,00,000/- to the complainant in each case with default sentence to under go imprisoment for six months and also ordered confiscation of an amount of Rs.5,000/- towards expenses of the case to the State. 6
6. Being aggrieved by the said judgment of conviction and sentence passed by the trial Court, the accused has preferred two appeals before the Fast Track Court-II at Bidar in Criminal Appeal Nos.58/2010 and 59/2010. The first appellate Court clubbed both the appeals and passed a common judgment on 26.11.2011 and dismissed the appeals by confirming the judgment of conviction and order of sentence passed by the trial Court.
7. As could be seen from the entire materials on record, there is no much dispute by the accused with regard to the cheques involved in the above said two cases belonged to the accused and also there is no dispute with regard to the signature found on the cheques. The only defence taken up by the accused is that, the said cheques were lost by the accused and she infact made a complaint to the concerned police and also informed the Bank authorities. Inspite of that, the 7 said cheques were presented by the complainants knowing fully well that, the Bank has informed them that, an intimation has been given by the accused with regard to the loss of the cheques.
8. On the above said defence, she has infact examined herself as DW.1 in both the cases and examined the Manger of the Bank one Sharnappa S/o Tukaram as DW.2 and produced four documents as Exs.D1 to D4 in C.C. No.115/2005. In the said case, the complainant Putlabai examined herself as PW.1 and one Chandrakanth as PW.2 and also got marked Exs.P1 to P6.
9. In another case i.e., in C.C. No.114/2005 also, similarly the complainant Anneppa was examined himself as PW.1 and a person by name Chandrakanth S/o Madhavrao was examined as PW.2 and got marked Exs.P1 to P6 and C1 and C1(a), the register etc. In the said case also, the accused examined as DW.1 and the 8 Bank Manager was examined as DW.2 and got marked Ex.D1 and D2. Therefore, in both the cases, similar defence has been taken and similar evidence has been led and appreciation has been made by the trial Court and the first appellate Court.
10. It is well recognized principal of Criminal Jurisprudence that, whenever the trail Court and the first appellate Court gave their concurrent findings on appreciation of the facts, normally during the course of revision petition, such concurrent findings of facts should not be disturbed by the appellate Court or the revisional Court, unless it is shown to the Court that a great miscarriage of justice or prejudice has been occurred to the accused. In this case, no submissions have been made with regard to the prejudice occurred to the accused.
11. On evaluation of the entire materials on record, the accused was given with a notice by the 9 complainants prior to filing of the compliant, but no reply has been given by the accused, nor the same has been got marked during the course of evidence of the accused. Therefore, it goes without saying that, at the earliest point of time, the factum of presentation of the said cheques and dishonor of the said cheques has been brought to the notice of the accused providing her an opportunity to reply the same, but she has not chosen to give any reply to the said notice.
12. After appearance before the Court, the accused has been given with an opportunity to cross- examine the complainants and also to lead her evidence and argue the matter. During the course of cross- examination of the complainants, the said defence has been taken by the accused for the first time and she also led evidence in both the cases as noted above. Therefore, the fact remains that, whether the accused 10 has established the defence taken at least by preponderance of probabilities.
13. It goes without saying that, the statutory presumption under Section 139 of the Negotiable Instruments Act (hereinafter referred to as 'N.I. Act' for short) has to be raised in favour of the complainants, as there is no dispute by the accused with regard to the cheques belonged to the accused and the signature found on the cheques are that of the accused. In such an eventuality, the presumption that has to be raised in favour of the complainant is to the effect that, the said cheques were issued by the accused for the repayment of any part or whole of a debt. Unless the said presumption is rebutted, the Court has to accept the case in favour of the complainants, who have produced sufficient materials in compliance with Section 138 (a),
(b) and (c) of N.I. Act.
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14. There is no ground taken up either before the first appellate Court or before this Court with regard to any non compliance of Section 138 (a), (b) and (c) of the N.I. Act by the complainant is concerned. However, a strong defence has been taken up by the accused with regard to the loss of cheques and misuse of the cheques by the complainants. In this background, as could be seen from the records of the trial Court and the first appellate Court, both have considered the defence taken up by the accused and also considered the evidence led by the accused.
15. On overall analysis of the oral and documentary evidence on record, the counsel for the accused has submitted that, accused has lodged a complaint before the PSI, Bhalki as per Ex.D1 with regard to the loss of cheques. Ex.D1 is the document, which shows that, a complaint was lodged before the jurisdictional police for loss of cheques, but peculiarly 12 not enough no connecting documents have been produced before the Court to show that, the police have registered any first information report and investigated the matter and filed any report to the concerned Court. If at all any such information was given to the police reporting commission of a cognizable offence, it is the bounden duty of the police to register a first information report and investigate the matter and thereafter submit a report to the jurisdictional Court. In the absence of such material before the Court, it gives raise to a serious suspicion whether as on the date as alleged by the accused, any complaint was actually given to the police. Therefore, mere production of Ex.D1 will not in any manner establish that, a complaint has been lodged before the police. In this context, the police officer, who received the complaint was also not examined before the Court.
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16. The next circumstance relied upon by the accused is that, she has intimated the Bank authorities much before the presentation of the cheques by the complainants i.e., prior to 02.12.2004.
17. The learned counsel for the petitioner drawn my attention to the evidence of PW.1 which is marked as Ex.D3 in C.C. No.114/2005, wherein, he relies upon a portion of the evidence at paragraph 4 of the cross- examination. Wherein, PW.1 has admitted that, after issuance of the cheques, about 3 to 4 months the complainant has demanded for repayment of the said amount from the accused and thereafter, he presented the cheque to the concerned Bank. When he presented the said cheque, the Bank has infomred him that there was an intimation received by the Bank from the accused with regard to loss of the cheque. However, there is no material placed before the Court that, as on the date of the presentation of the cheque itself, any 14 endorsement was issued by the Bank informing that, the accused has informed the Bank with regard to loss of cheques.
18. In both the cases, it is the case of the complainants that, subsequently on 17.01.2005 and 18.01.2005, the complainants have received the endorsements from the Bank, wherein it is stated that, the cheques were dishonored on two counts, one is with regard to in sufficient funds and another is with regard to loss of cheques. When two endorsements have been issued, it should be made known to the complainant that, as on the date of presentation of the cheque itself, it was brought to the notice of the complainants with regard to the loss of cheques or the accused would have produced the materials before the Court, as to on which date exactly, such intimation was given to the Bank and inspite of that intimation, the Bank has issued the endorsement to the effect that funds insufficient. 15
19. In this regard, it is worth to mention here that, the accused herself chose to examine DW.2 before the Court, who is none other than the Bank Manager of the said concerned Bank by name Sharanappa S/o Tukaram. During the course of examination-in-chief, nothing has been elicited from the mouth of this witness that, as to on which date the accused has given such intimation to the Bank with regard to loss of cheques. He categorically stated that, Ex.C1 is the Register available in the Bank to show that, they will make such entry in the said register. It is seen that, the said endorsement was made on 17.01.2005 and 18.01.2005. But, no material is there to show that, on which date exactly the accused has intimated the Bank with regard to the loss of cheques. Even it is not elicited in the course of examination of this witness about the same as to why the Bank has issued the endorsement to the effect that the cheques were dishonored for insufficiency of funds. Except the above said material, no other 16 material is available that, the accused has actually lost the cheques much prior to the date of presentation of the said cheques to the Bank. In the absence of registration of any criminal case against the accused by the police and in the absence of any investigation thereon, the accused has to discharge his responsibility before the trial Court in these two criminal cases. Though there is an attempt made by the accused to discharge his onus in rebutting the presumption raised under Section 139 of N.I. Act, but both the courts on appreciation of factual aspects, came to the conclusion that, the said materials are not sufficient to pre-ponder over the presumption raised in favour of the complainant.
20. Under the above said circumstances, when on facts, the courts below have given such findings, even on re-appreciation of the materials on record, this Court is also of the opinion that, the above said 17 materials are not so strong enough to rebut the presumption raised in favour of the complainants.
21. Under the above said facts and circumstances, I do not find any strong reason to interfere with the judgment of conviction and order of sentence passed by the trial Court and as affirmed by the first appellate Court.
22. However, while perusing the judgment of the trial Court and the first appellate Court, this Court found some clerical mistake in sentencing the accused and awarding compensation to the complainants. The trial Court has sentenced the accused to pay fine of Rs.1,50,000/-. Out of that amount, it awarded compensation of Rs.1,00,000/- to the complainants and also appropriated Rs.5,000/- towards expenses to the State. But, it has not passed any order with regard to remaining amount of Rs.45,000/-. Because, out of Rs.1,50,000/- if an amount of Rs.1,00,000/- is awarded 18 as compensation to the complainants, a sum of Rs.50,000/- would remain. Out of it if Rs.5,000/- is appropriated to the State, again a sum of Rs.45,000/- would remain. No opinion has been expressed by the trial Court or the first appellate Court, what should happened to Rs.45,000/-. Perhaps, the trial Court has intended to award a compensation of Rs.1,45,000/- in favour of the complainants. Therefore, it only appropriated an amount of Rs.5,000/- to the State. The trial Court and the first appellate Court have lost the sight of this discrepancy in the sentence portion. The same requires to be clarified by this Court. Hence, the following:
ORDER Both the criminal revision petitions are hereby dismissed, confirming the judgment of conviction and order of sentence of fine passed by the trial Court and as affirmed by the first appellate Court. However, the compensation awarded by the trial Court in favour of 19 the complainants in both the cases is modified to the extent of Rs.1,45,000/- instead of Rs.1,00,000/-. The rest of the order passed by the trial Court and the first appellate Court are not disturbed.
Sd/-
JUDGE VNR/LG