Karnataka High Court
N Sukanya vs S Nagaraj on 19 November, 2021
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
1 CRL. RP NO.692/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL REVISION PETITION NO.692/2016
BETWEEN:
N. SUKANYA,
D/O LATE NARASIMHAIAH,
AGED ABOUT 43 YEARS,
TYPIST, BASEMENT FLOOR,
ADVOCATE"S ASSOCIATION BUILDING
CITY CIVIL COURT COMPOUND,
BANGALORE-560 009
... PETITIONER
(BY SRI. E. RAJAGOPAL, ADVOCATE)
AND:
S. NAGARAJ,
S/O LATE ADINARAYANA CHETTY,
NO.171, 2ND FLOOR,
1ST CROSS, 4TH MAIN,
RAJAJINAGAR INDUSTRIAL TOWN,
BANGALORE-560010.
... RESPONDENT
(BY SRI S.NAGARAJ, PARTY-IN-PERSON V/O
DT:24/09/2021)
(SRI. AMIT DESHPANDE, AMICUS CURIAE V/O
DT:04/10/21)
THIS CRL.R.P. IS FILED UNDER SECTION 397 R/W
401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
SET ASIDE THE IMPUGNED JUDGMENT AND SENTENCE OF
CONVICTION DATED 04.02.2015 PASSED AGAINST THE
PETITIONER BY XIX A.C.M.M., BANGALORE IN C.C.
NO.24031/2012 AND SET ASIDE THE JUDGMENT DATED
2 CRL. RP NO.692/2016
16.12.2015 PASSED BY THE LXVII ADDL. CITY CIVIL AND
S.J., BANGALORE IN CRL.A.NO.313/2015 AND ACQUIT THE
PETITIONER AND REMAND THE MATTER TO THE TRIAL
COURT FOR FRESH CONSIDERATION PERMITTING
PETITIONER TO LEAD DEFENCE EVIDENCE.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The present Criminal Revision Petition is preferred under Sections-397 and 401 of Cr.P.C., questioning the legality and propriety of the judgment of conviction and order on sentence passed in C.C.No.24031/2012, dated 04.02.2015, by the 19th ACMM, at Bengaluru ('Trial Court' for brevity) which is confirmed in Criminal Appeal No.313/2015, dated 16.12.2015, by the learned LXVII Additional City Civil and Sessions Judge at Bengaluru ('Sessions Court' for brevity).
2. The ranking of the parties are referred to as before the trial court for convenience and easy reference.
3. It is stated that the complainant is an Advocate and the accused is a Typist working in the City Civil Court, 3 CRL. RP NO.692/2016 Bengaluru. It is stated that the complainant had advanced a hand loan to the accused totaling Rs.1,72,000/- on different occasions. It is stated that initially the complainant had lent a sum of Rs.1,00,000/- as hand loan to the accused and subsequently Rs.18,000/- on four different dates. Therefore, the complainant has lent a total sum of Rs.1,72,000/-.
4. It is stated that the accused had executed a promissory note along with the consideration receipt, at Exhibit-P3 and P4, agreeing to repay the said amount to the complainant. Inspite of the same, when the accused had not repaid the amount and when the complainant started to demand the amount, the accused issued a Cheque (Exhibit- P1) for a sum of Rs.1,72,000/- by putting signature on it and when the complainant had presented the said cheque to the bank, it was returned with an Endorsement 'Funds Insufficient' (Exhibit-P2).
5. Thereafter, the complainant issued a legal notice to the accused and the accused has issued reply. Thereafter, the complainant has also once again issued a rejoinder to the said reply. Further, it is the case of the 4 CRL. RP NO.692/2016 complainant that the accused had issued a letter of undertaking for repayment of the loan amount of Rs.1,72,000/-. Therefore, the complainant was constrained to file a complaint before the Trial Court since the cheque was dishonored with a bank endorsement as 'Funds Insufficient'.
6. The complainant himself examined as PW-1 and got marked Exhibit-P1 to P13. After completion of the evidence the complainant, the accused was examined under Section-313 of Cr.P.C. and she denied all the incriminating circumstances. During the course of the evidence of the complainant as PW-1, the accused cross-examined the complainant and confronted and got marked Exhibit-D1 and D4 and did not lead in any oral evidence.
7. After considering the evidence and appreciating the material on record, the Trial Court has convicted the accused for the offence punishable under Section-138 of N.I. Act and imposed fine amount of Rs.2,50,000/-, and in default to pay the fine amount, the accused has to undergo simple imprisonment for a period of six months. 5 CRL. RP NO.692/2016
8. Being aggrieved by the same, the accused preferred a criminal appeal before the Sessions Court and the Sessions Court has dismissed the criminal appeal filed by the accused confirming the judgment of conviction and the order on sentence. Therefore, the accused being aggrieved by the orders passed by the courts below, has filed the present revision petition calling in question the orders passed by both the courts below, as they are illegal and suffering from impropriety.
9. The learned counsel for the appellant is absent.
10. The respondent even though served with notice but has not engaged the service of an Advocate. Therefore, this Court on 18.10.2021 appointed Sri. Amit Deshpande, Advocate as Amicus Curiae in the present case to assist the Court. The learned amicus curiae fairly submitted that in the present case the accused has not led-in any evidence and therefore there is no defence evidence on the part of the accused. Therefore, the matter be remanded to the trial court enabling the accused to lead her evidence. Further, submitted the relationship between the complainant and the accused is that, the plaintiff is an Advocate and the 6 CRL. RP NO.692/2016 accused is a Typist, doing job tying in Advocate Association, Bengaluru. When there was such acquaintance, the Advocate has given a blank Cheque and the same was misused by the complainant and the same is not appreciated by both the courts below.
11. Further, submitted that the amount due to the complainant is only Rs.26,000/-, but not Rs.1,72,000/-. Therefore, on this account it is necessary to give an opportunity to the accused to lead her evidence. Therefore, prays to remand the matter to the trial court.
12. Further, submitted that there are discrepancies between the averments made in the complaint and also in the cross-examination. In the complaint, it is not averred that the accused had requested the complainant to give money for purchasing the site, but the same is reflected in the cross-examination of the complainant - PW-1 as the accused had put the said suggestion to the said complainant. Even though the complainant has given reply, that 'he does not remember', it is the finding revealed that the complainant had lent the said amount to the accused helping the accused to purchase a site. Therefore, in this 7 CRL. RP NO.692/2016 regard, there is a discrepancy found in the complaint and also in the evidence and this is not considered by both the courts below. Hence for all these reasons, the learned amicus curiae prays to remand the matter to the trial court for fresh consideration.
13. Upon hearing the learned Amicus Curiae and upon perusal of the records, the following points arise for consideration:
i) Whether the Judgment Of Conviction, passed by the Trial Court, which is confirmed by the Sessions Court, suffers from any illegality or error?
ii) Whether the Order On Sentence, recorded by the Trial Court, which is confirmed by the Sessions Court requires interference by this Court?
14. The complainant has lodged a complaint before the Trial Court making allegation against the accused that he has handed over a hand loan of Rs.1,00,000/- to the accused and for a repayment of the said sum, the accused had issued a Cheque at Exhibit-P1 for a sum of Rs.1,72,000/- and when the said cheque was presented to the bank, it was returned with an endorsement as 8 CRL. RP NO.692/2016 'Insufficient Funds'. Therefore, it is the contention of the complainant that the accused has committed offences under Section-138 of N.I. Act and the trial court has convicted and imposed proper sentence, which order is also confirmed by the Sessions Court in the criminal appeal
15. In order to find out whether there is any legally enforceable debt and discharge towards legally enforceable debt, evidences are perused. Exhibit-P1 is the cheque issued by the accused and it is not an 'Inchoate Negotiable Instrument', which is admitted by the accused. The cheque amount is mentioned as Rs.1,72,000/-. In this regard, the accused has also executed on Demand of Promissory Note, as per Exhibit-P3 and Consideration Receipt as per Exhibit- P4, promising to pay a sum of Rs.1,72,000/- to the complainant, which proves the fact that there is a 'legally enforceable debt'. Therefore, the complainant has not filed a complaint before the Trial Court only on the basis of the cheque, but in support of his case, he has presented Promissory Note and Consideration Receipt.
16. As stated above, issuance of the cheque, execution of the promissory note and consideration receipt 9 CRL. RP NO.692/2016 is not disputed by the accused. The accused had issued a reply notice to the complainant. When the complainant has issued the statutory legal notice and in the said reply to the notice, she has stated in the reply that a space was allotted to the accused in the Advocates Association Building to work as a Typist. In reply to the notice, at Exhibit-P8 the accused herein has stated that the complainant came forward voluntarily for giving financial assistance of Rs.1,00,000/- as hand loan and sought repayment of the same in 25 monthly equitable installment of Rs.4,000/- and accepted the said amount of Rs.1,00,000/-. It is stated in the said reply that the complainant has received this blank cheque of her bank account. Therefore, in the reply notice as above stated, it is the case of the complainant that subsequently he has given a sum of Rs.18,000/- on four occasion amounting to Rs.72,000/-. Therefore, totally an amount of Rs.1,72,000/- was given to the accused.
17. Therefore, the accused herself admitted that she has received Rs.1,00,000/- from the complainant. Therefore, the documentary evidence at Exhibits-P3 and P4 and also Exhibit-P12, Promissory Note, Consideration Receipt and Letter Of Undertaking, respectively, the 10 CRL. RP NO.692/2016 accused admitted that she would repay the entire loan amount of Rs.1,72,000/- to the complainant. Therefore, the complainant is able to prove there is legally enforceable debt and towards discharge of the said legally enforceable debt, the accused had issued the cheque as per Exhibit-P1. Therefore, it is not the case of the complainant that his case is based on Exhibit-P1, Cheque only, but he has also produced documentary evidence, i.e., Promissory Note, Consideration Receipt and Letter Of Undertaking as per Exhibits-P3, P4 and P12 respectively.
18. The accused participated in the proceedings from the inception by engaging the services of an Advocate and cross-examined the complainant and after completion of the evidence of PW-1, she has also participated in the cross-examination under Section-313 of Cr.P.C. also and to the specific question put by the Trial Court, whether the accused has any defence evidence, she has not adduced any defence evidence and accordingly it is recorded by the Trial Court.
19. Inspite of it, the accused filed an application under Section-311 of Cr.P.C. for recalling PW-1 for further 11 CRL. RP NO.692/2016 cross-examination and also to lead evidence and the Trial Court has even allowed the application, in order to give an opportunity to the accused to lead evidence. But she did not avail it. Therefore, it cannot be said that the Trial Court has not given proper opportunity to the accused. Hence, for all these reasons, evidence is correctly appreciated by the Trial Court, as well as the Sessions Court, and the Trial Court has rightly convicted the accused for the offence punishable under Section - 138 of NI Act, which is rightly confirmed by the Sessions Court.
20. Further, even the Sessions Court has in detail discussed the evidence on record and the conduct of the accused. Even though it is the defence of the accused that she has received a sum of Rs.25,000/- is liable to pay the same, the accused has not placed any evidence in order to rebut the amount claimed by the complainant. As observed above, even the Trial Court has given sufficient opportunity to the accused but she has not led in any evidence. Therefore, I do not find any perversity, illegality or impropriety in the judgment of conviction recorded by the Trial Court which is confirmed by the Sessions court. Accordingly, I answer the point for consideration No.i, that 12 CRL. RP NO.692/2016 the Judgment Of Conviction, passed by the Trial Court, which is confirmed by the Sessions Court, do not suffer from any illegality or error. Hence, answered in Negative.
21. So far as awarding sentence is concerned, the Trial Court has imposed a fine amount of Rs.2,50,000/- and in default to pay the fine amount she has to undergo simple imprisonment for a period of six months. Considering the status of the accused, she is a woman working as job typing and in the Advocates Association Building, the sentence awarded is little bit harsh and therefore it is appropriate to reduce the sentence of fine amount of Rs.2,50,000/- to a sum of Rs.1,80,000/-, keeping the default clause recorded by the Trial Court in tact. Therefore, the order on sentence needs to be modified and accordingly a fine amount of Rs.1,80,000/- (Rupees One Lakh Eighty Thousand Only) is imposed as against Rs.2,50,000/-. In default to pay the sum of Rs.1,80,000/-, the accused shall undergo a simple imprisonment for a period of Six Months. Therefore, the point for consideration No.(ii) is answered affirmative, accordingly the order on sentence is modified. Accordingly, I proceed to pass the following: 13 CRL. RP NO.692/2016
ORDER i. Criminal Revision Petition is allowed in part.
ii. The judgment of conviction passed in C.C.No.24031/2012, dated 04.02.2015, by the 19th ACMM, at Bengaluru, which is confirmed in Criminal Appeal No.313/2015, dated 16.12.2015, by the learned LXVII Additional City Civil and Sessions Judge at Bengaluru, is hereby upheld.
iii. The order on sentence passed in C.C.No.24031/2012, dated 04.02.2015, by the 19th ACMM, at Bengaluru, which is confirmed in Criminal Appeal No.313/2015, dated 16.12.2015, by the learned LXVII Additional City Civil and Sessions Judge at Bengaluru, is hereby modified.
iv. The accused shall pay a fine amount of Rs.1,80,000/- (Rupees One Lakh Eighty Thousand Only) to the complainant and in default to pay the sum of Rs.1,80,000/-, the accused shall undergo a simple imprisonment for a period of Six Months.
Sd/-
JUDGE JJ