Karnataka High Court
Seetharama Gowda A vs Isubu on 12 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 2231, 2021 (1) AKR 468
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL REVISION PETITION No.667/2015
C/W
CRIMINAL REVISION PETITION No.572/2015
CRL.R.P.No.667/2015:
BETWEEN:
SEETHARAMA GOWDA A.,
S/O BABU GOWDA
AGED ABOUT 40 YEARS
R/AT: NAKARANA HOUSE
KUDMARU VILLAGE AND POST
PUTTUR TALUK,
D.K.DISTRICT-574204 ..PETITIONER
(BY SRI.G.RAVISHANKAR SHASTRY, ADVOCATE)
AND:
ISUBU
S/O KUNHAMMADE
AGED ABOUT 57 YEARS
BELANDOOR VILLAGE AND HOUSE
KUDMAR POST,
PUTTUR TALUK,
D.K.DISTRICT-574208 ..RESPONDENT
2
(BY SRI.HARISH BHANDARY, ADVOCATE FOR SRI.NISHITH
KUMAR SHETTY, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W SECTION 401 OF CR.P.C. BY
THE ADVOCATE FOR PETITIONER PRAYING TO SET ASIDE
THE JUDGMENT DATED 06.04.2015 PASSED BY THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE SITTING AT PUTTUR, D.K. IN
CRL.A.NO.392/2013, IN SO FAR AS REDUCING THE
COMPENSATION AMOUNT TO RS.68,938/- FROM
RS.1,10,000/- BY ALLOWING THIS REVISION PETITION.
CRL.R.P.No.572/2015:
BETWEEN:
ISUBU
S/O KUNHAMMADE
AGED ABOUT 55 YEARS
BELANDOOR HOUSE AND VILLAGE
KUDMARU POST,
PUTTUR TALUK,
D.K.DISTRICT-574201 ..PETITIONER
(BY SRI.HARISH BHANDARY, ADVOCATE FOR SRI.NISHITH
KUMAR SHETTY, ADVOCATE)
AND:
SEETHARAMA GOWDA A.,
S/O BABU GOWDA
AGED ABOUT 40 YEARS
R/AT: NAKARNA HOUSE
KUDMARU VILLAGE AND POST
PUTTUR TALUK,
D.K.DISTRICT-574201 ..RESPONDENT
3
(BY SRI.G.RAVISHANKAR SHASTRY, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397(2) OF CR.P.C. BY THE ADVOCATE
FOR PETITIONER PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 23.11.2013 MADE IN
C.C.NO.1570/2003 BY THE COURT OF PRL. CIVIL JUDGE
AND JMFC PUTTUR, D.K. AND THE JUDGMENT AND ORDER
DATED 06.04.2015 MADE IN CRL.A.NO.392/2013 BY THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.
MANGALURU SITTING AT PUTTUR, D.K., AND ACQUIT THE
PETITIONER.
THESE CRIMINAL REVISION PETITIONS COMING ON
FOR ADMISSION THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE AT BENGALURU MADE THE FOLLOWING:
ORDER
This matter is taken up through Video
Conference today.
With the consent of the learned counsel
appearing for the parties, matter is taken up for final disposal.
4
2. Heard learned counsel Sri.Ravi Shankar Shastry for petitioner and heard Sri.Harish Bhandary, learned counsel for respondent through VC.
3. These are the two criminal revision petitions filed under Section 397 of Cr.P.C against the Judgment passed in Criminal Appeal No.392/2013 wherein learned District Judge partly allowed the appeal and same came to be modified insofar as appellant therein is the petitioner in Crl.R.P.No.572/2015 was sentenced to pay a sum of Rs.40,000/- plus Rs.28,938/- in default to undergo simple imprisonment for a period of three months. It is also ordered that in case the amount is deposited an amount of Rs.39,000/- is ordered to be paid to the complainant by way of compensation and also Rs.28,938/- deposited by virtue of order dated 30.12.2013 to be given to the complainant as 5 compensation as per the provision under Section 357 of Cr.P.C.
4. Originally the learned trial Judge, Puttur allowed the complaint filed under Section 200 Cr.P.C for the offence punishable under Section 138 of Negotiable Instruments Act and found the accused guilty for committing the offence and by way of sentence directed him to pay fine of Rs.1,10,000/- in default to undergo simple imprisonment for a period of three months. At the same time Rs.1,05,000/- was ordered to be paid by way of compensation to the complainant. Being aggrieved by the said Judgment accused preferred Criminal appeal No.392/2013 and appeal came to be partly allowed. Hence both the parties have come in revision.
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5. In order to avoid confusion and overlapping parties are addressed in accordance with their ranks as stood in the trial court.
6. Before adverting the attention on the other aspects, originally the complaint was ordered to be registered as C.C.No.1570/2003 on the file of learned Principal Civil Judge and JMFC, Puttur, wherein the complainant-Seetharama Gowda A., claimed that accused-Isubu borrowed an amount of Rs.40,000/- on 17.10.2000 and executed an D.Pro-note agreeing to repay the loan together with interest at the rate of 15% p.a. After several requests accused issued a cheque in favour of complainant on 02.06.2003 for a sum of Rs.55,750/- drawn on Savanoor Co-operative Agricultural Bank Limited. As the amount borrowed and undertook to be repaid was not returned, the complainant presented the cheque for payment. 7 However it came to be dishonoured for want of sufficient funds on 06.06.2003 and endorsement was issued by the complainant bankers Syndicate Bank. As required by law complainant issued a legal notice calling upon the accused to pay a sum of Rs.55,750/-. Accused sent a false reply on 23.06.2003 and complainant presented his case. Complainant before the trial court examined himself as PW-1 and presented the following documents: Ex.P-1- Cheque, Ex.P-1(a)- Signature, Ex.P-2-3 -Dishonour of Memo, Ex.P-4- Demand Notice, Ex.P-5-Postal receipt, Ex.P-6- A.D.Card, Ex.P-7-Reply, Ex.P-8- Letter dated 18.09.2002, Ex.P-9-D.P.Note, Ex.P-10-12 -RTC. Defendant examined himself as DW-1 and no documents were presented.
7. Learned trial Judge allowed the complaint in the first instance on 05.10.2007 and convicted the 8 accused for the offence punishable under Section 138 of Negotiable Instruments Act. It is necessary at this stage to mention the criminal appeal No.309/2007 was presented by the accused and learned appellate Judge dismissed the appeal and confirmed the order. Against said Judgment the accused preferred criminal revision petition before this court in Crl.R.P.No.1350/2010 -M.Isubu Vs Seetharama Gowda A. which came to be allowed by this court on 01.07.2011 and the matter was remanded to trial court. This court observed regarding the D.Pro-note and also financial capacity of the accused.
8. During the second phase of proceedings after remand the trial court found the accused guilty and convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act and by its order dated 23.11.2013 sentenced the accused 9 to pay a sum of Rs.1,10,000/-. In default to pay to undergo simple imprisonment for a period of three months against the said order appeal was preferred by the accused wherein appellate court partly allowed the appeal and insofar as conviction of the accused for the offence punishable under Section 138 of Negotiable Instruments Act confirmed and insofar as sentencing aspect of imposing fine is concerned it ordered the fine amount at Rs.68,938/-. The complainant was ordered to be paid the amount of Rs.67,938/- by way of compensation. It is against this Judgment both complainant and accused have come in revision.
9. Insofar as complainant is concerned he has preferred Crl.R.P.No.667/2015 where in he claims the reduction of fine amount from Rs.1,10,000/- to Rs.68,938/- is very much less and insufficient and 10 prays for enhancement of the same considering the transaction is of the year 2000.
10. Insofar as Crl.R.P.No.572/2015 is concerned it is preferred by the accused against conviction for the offence punishable under Section 138 of Negotiable Instruments Act and sentence of imposing fine of Rs.1,10,000/-.
11. Learned counsel for complainant-Sri.Ravi Shankar Shastry would submit that the accused took inconsistent stand and he has admitted the signature on the cheque but took contradictory stand and also complainant established offence punishable under Section 138 of Negotiable Instruments Act. It was also submitted by the counsel for complainant to the effect that ingredients of offence punishable under Section 138 of Negotiable Instruments Act are present in the 11 case. Further they are duly established by oral and also documentary evidence and transaction is of the year 2000 nearly 20 years old. Under the circumstances the complainant ought to have been reasonably compensated and present quantum of compensation is unreasonably low.
12. Learned counsel Sri.Harish Bhandary for accused would submit that he is appearing for the petitioner- accused as the earlier counsel Sri.Vishwajith Shetty has been elevated as Judge of High Court of Karnataka. Learned counsel submits that he has been asked to appear for the accused and he has been instructed to represent the accused. The representation of learned counsel is accepted. He further submits he has to obtain further instructions from the accused and sought for time to file vakalath. Considering the age and stage of the case the prayer 12 for adjournment is rejected. However, learned counsel is permitted to file vakalath.
13. Learned counsel for accused would submit that the complainant has miserably failed to make out a case for the offence punishable under Section 138 of Negotiable Instruments Act. Accused is living under below poverty line and never borrowed the amount of Rs.40,000/- as claimed by the complainant. Complaint also suffers from contradictory stand wherein complainant himself admits that the amount borrowed was Rs.40,000/- on 17.10.2000 and issuance of cheque for the amount of Rs.55,750/- as such the material difference is admitted in the beginning itself. Learned counsel would also submit that the accused had borrowed a sum of Rs.1,000/- earlier from the complainant and cheque issued by that time was being misused by the complainant and has committed 13 offence by making wrongful prosecution. It was also submitted that the complainant has not established legally recoverable debt and there is no acceptable reasons on the D.Pro-note as claimed by the complainant. Learned counsel for accused also submitted that the complainant absolutely has no financial capacity to garner amount of Rs.40,000/- during the year 2000 and to lend the same. Thus, the case of the complainant is mixed bag of misrepresentation, fraud and wrongful assertions.
14. The points that would emerge from the case are the complainant claimed that on 17.10.2000 accused borrowed amount of Rs.40,000/-. In this connection executed a D.Pro-note agreeing to repay the amount together with interest at 15% p.a. It was in this context subsequently on 02.06.2003 accused issued a cheque for Rs.55,750/- as accused did not make 14 payment inspite of repeated requests and demand. Said cheque came to be issued to the complainant and rest is that the cheque was presented and it was dishonoured, notice was issued as per Ex.P-4.
15. It is prime contention of the accused that he never issued the cheque for Rs.55,750/- to the complainant more over he had never borrowed amount as claimed by complainant. Learned counsel for accused at this stage submitted there is alteration in the cheque which is not explained.
16. The issuance of cheque by the accused is not disputed. However the accused has come up with inconsistent stand insofar as cheque is concerned. At one stage he contends that he borrowed only Rs.1,000/- and cheque was issued blank and during cross examination to a suggestion when the cheque 15 was issued towards repayment of loan amount along with interest he denied the same. On the other hand he tells about his weak economic situation and financial burden. The execution of D-Pro-note Ex.P-9 or if the same was received from the accused in favour of the complainant it does not dilute the case under Section 138 of Negotiable Instruments Act as it is nowhere connected or establishes a different material claim. It is also floated during the evidence that there was a compromise that took place in a temple in respect of amount payable by the accused to the complainant and the contents of the said compromise was also admitted by the accused. Accused has not initiated any proceedings against the complainant regarding misuse of cheque or forgery or making wrongful claim. It is also necessary that the D.Pro-note is not proved. In this connection the case is filed on the strength of a cheque that came to be 16 dishonoured which was stated to have been issued towards the repayment of debt that existed. The portion of answer to the suggestion is also mentioned in the Judgment of the trial court at page No.13 under paragraph 16 which is as under:
"It is false to suggested that I have executed the D.P note but the witness volunteers I have given the D.P note by just signing as mentioned in the contents."
17. In the whole context and circumstances of the case issuance of cheque by the accused is established. His signature is established. However it is necessary to place on record that mere admission or establishing of signature does not amount to proving of execution of cheque and where a person claims that he got the cheque towards repayment of debt that was legally recoverable from the accused. Under such circumstances it is incumbent on the part of the 17 complainant to establish that a legally recoverable debt existed and cheque-Ex.P-1 was issued towards payment of the same and same came to be dishonoured by the bank. Regard being had to the fact that the procedure for prosecuting the complaint was followed. No doubt that there is no obligation of the accused to prove the case beyond reasonable doubt. Mere denial will not serve the purpose. Further whenever special plea is taken by the accused apart from denial it is incumbent upon his part that he has to establish special plea. In the circumstances special plea that accused borrowed a sum of Rs.1,000/- from the complainant and issued the cheque at that time. But that plea exists and stops at the stage of plea itself and no further progress. Thus, having a special plea apparently the accused has failed to establish. Insofar as partly allowing of the appeal regarding quantum I find that the transaction 18 is of the year 2000 and amount borrowed was Rs.40,000/- and the amount for which the cheque was issued during the year 2003 is for a sum of Rs.55,750/-. Considering the facts and circumstances of the case I find that it is not a civil litigation wherein matter is tried and rate of interest is to be calculated and petitioner was entitled for the remedy at law. Regard being had to the fact, fact remains that legally recoverable debt was Rs.40,000/- during 2000. I find the learned appellate Judge miserably failed to come to a appropriate finding by reducing the amount of Rs.1,10,000/- to Rs.67,938/-. I find it was reasonable that the amount should have been quantified at Rs.75,000/-.
18. In the circumstances having heard about the entire case and on perusal of records I find that both the trial court and appellate court were right in 19 convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act but erred in quantifying the amount of fine. I find the trial court exceeded the reasonable amount in the circumstances of the case by fixing the same at Rs.1,10,000/- at the same time the appellate court went far below in fixing it at Rs.67,938/-. I find by virtue of the records available and having heard the submissions, I find the criminal revision petition No.572/2015 filed by accused does not qualify for admission and for proceeding further as it is void on merits on the face itself. Accordingly Crl.R.P.572/2015 is rejected.
19. However insofar as complainant's revision Crl.R.P.No.667/2015 is concerned by virtue of rejection of the revision petition filed by the accused and in the circumstances it deserves to be disposed of 20 in accordance with the rejection of criminal revision petition of the accused. However, the amount of fine is modified at Rs.80,000/- and compensation payable to the complainant is fixed at Rs.75,000/-. Insofar as default sentence of simple imprisonment is concerned the case does not require variance.
Crl.R.P.No.667/2015 is disposed of.
Sd/-
JUDGE SBN