Karnataka High Court
M. Narasimhalu vs Sri. S. Narasimharaju on 6 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 2232
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRL.R.P. No.944/2015
BETWEEN:
M.Narasimhalu, S/o. late M.Penchalaiah
Aged about 52 years
R/o.No.15, 13th Cross, 6th Main
MSR Nagar, Mathikere
Bangalore - 560 054.
... Petitioner
(By Sri. K.Dhiraj Kumar, Advocate)
AND:
Sri. S.Narasimharaju, S/o. Ramaraju
Aged about 47 years
R/o. No.359, 6th Cross
60 feet Main Road, MEI Layout
Hesarghatta Road, Bagalgunte
Nagasandra Post
Bangalore - 560 073.
...Respondent
(By Sri. P.Raju, Advocate)
This Crl.RP is filed under Section 397 read with 401
Cr.P.C. by the advocate for the petitioner praying that this
Hon'ble Court may be pleased to set aside the judgment
dated 31.07.2015 passed by the VIII Addl. District and
Sessions Judge C/c VII Addl. District and Sessions Judge,
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Bengaluru Rural District, Bengaluru in Crl.A.No.34/2014,
dismissing the appeal filed by the petitioner, thereby
confirming the judgment and sentence dated 19.05.2014
passed by the CJM, Bengaluru Rural District, Bengaluru, in
C.C.No.4931/2011 and acquit the petitioner for the offence
punishable under Section 138 of N.I.Act.
This Crl.RP coming on for Admission this day, the
Court passed the following:
ORDER
This Criminal Revision Petition is directed against the judgment and sentence dated 31.07.2015 passed by the VIII Addl. District and Sessions Judge C/c VII Addl. District and Sessions Judge, Bengaluru Rural District, Bengaluru in Crl.A.No.34/2014, dismissing the appeal filed by the petitioner, thereby confirming the judgment and sentence dated 19.05.2014 passed by the CJM, Bengaluru Rural District, Bengaluru, in C.C.No.4931/2011.
2. In order to avoid confusion and overlapping, parties are referred to as per their rankings before the Trial Court.
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3. The facts leading to the case are that, the accused agreed to sell the schedule property to the complainant under the agreement dated 25.01.2010 and received the total consideration of Rs.9,75,000/-. However, the documents were not handed over. Later the complainant came to know that the accused had already sold the said land to one Smt. Beena Sunil, the complainant and informed the accused about the act of commission of cheating and suppression of the said fact and requested the accused to refund the amount of Rs.9,75,000/-, accused agreed to refund the same together with interest at the rate of 24% p.a. and the accused also issued a cheque No. 072216 dated 25.05.2011 for Rs.12,87,000/- in favour of the complainant drawn on State Bank of Mysore, Mattikere.
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4. On presentation of the cheque for payment, it came to be dishonoured with an endorsement insufficient funds. Thereafter, the complainant complied with the legal formalities as contemplated in law and filed a criminal complaint against the accused under Section 138 of Negotiable Instruments Act.
5. The accused denied the claim of the complainant. The defence of the accused has been that, he borrowed an amount of Rs.1,00,000/- by way of hand loan from the complainant and repaid the same by alienating the schedule property under the alleged sale agreement, and the complainant had obtained blank cheques and papers from the accused. It was not returned by the complainant and on being demanded to return, the complainant stated that the documents and the blank cheques were misplaced. In this connection, letter was written by the accused to 5 the complainant, marked as Ex.D.1, demanding the complainant to return the documents and blank cheques.
6. On behalf of the complainant, he got examined himself as P.W.1 and produced 13 documents which were marked as Exs. P.1 to P.13. The accused examined himself as D.W.1 and produced two documents which were marked as Exs. D.1 and D.2.
7. The trial Judge after hearing the parties, considering the claim of the complainant and accused, allowed the petition filed by the complainant and found the accused guilty of the offence under Section 138 of Negotiable Instruments Act and imposed punishment of R.I. for two years and to pay fine amount of Rs.13,00,000/-; in default of payment of fine amount to further undergo S.I. of one year, and 6 out of the fine amount, Rs.12,97,000/- to be paid to the complainant as compensation.
8. Appeal was preferred against the said judgment passed by the learned Trial Judge before the VIII Additional District and Sessions Judge, Bangalore Rural District, Bangalore, in Crl.A.No.34/2014, which came to be dismissed confirming the judgment passed by the learned Trial Judge.
9. Being aggrieved by the said judgment, the accused has come in appeal.
10. Learned counsel Sri.K.Dhiraj Kumar, appearing for the appellant - accused would submit that the contention of the accused has been that, there does not exist any debt. He further submits that the complainant has converted the valuable documents against the accused as valuable security and has 7 deliberately not returned the blank cheques, but used them as valuable security to recover the money. The complainant further has not discredited the contention of the accused regarding the plea of the accused to the effect of blank cheque being handed over as security to the amount of Rs.1,00,000/- borrowed.
11. The documents produced by the complainant, include the cheque - Ex.P.1, bank memo - Ex.P.2, GPA
- Ex.P.8 and P.9 and agreement - Ex.P.10 and others. Out of the documents stated above, the major document in connection with the present case is the cheque. It is the contention of the complainant that the said amount mentioned in the cheque includes the amount of sale consideration paid by the complainant at Rs.9,75,000/-. Apart from the contention that the cheque for Rs.9,75,000/- was not issued to the complainant and that the same relates to the blank 8 cheque taken by the complainant containing signature of the accused, there is no acceptable material placed before the Court.
12. It is considered fact that apart from denial at the time of complaint till the accused sets up a case, it is incumbent on him to mention the same or establish the same. Apart from that, the complainant is supported by the provisions relating presumption under the Negotiable Instruments Act. The sale agreement and power of attorney would corroborate the contention of the complainant.
13. In the over all circumstances, I find the ingredients for the offence under Section 138 of Negotiable Instruments Act is established and I do not find, either the trial Judge or the appellate Judge have 9 committed infirmity or illegality in passing the judgment.
14. However, it is seen from the operative portion of the judgment, which is in Kannada language, its translation states as "two years R.I. and to pay a fine of Rs.13,00,000/-; in default to pay fine amount to undergo further S.I. of one year and in case of payment of fine amount, compensation amount there from of Rs.12,97,000/- to be given to the complainant".
15. In the above circumstances, the language of Section 138 of Negotiable Instruments Act is clear and it reads as under:
"138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for 10 payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to one year, or with fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless -
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;11
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return or the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."
16. In the over all circumstances, the irregularity in the circumstances is that the sentence imposed on the accused has to be read in accordance with Section 138 of Negotiable Instruments Act.
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17. Accused is stated to be 70 years. Thus, it appears to be proper to impose fine amount and in default to pay the fine amount, to undergo imprisonment as stated in the order. Petition is rejected.
18. However, considering the legality of the sentence imposed, I find that the learned Trial Judge should have confined the sentence for payment of fine of Rs.13,00,000/- including the compensation amount of Rs.12,97,000/- to the complainant. The sentence is hereby corrected to that extent.
Sd/-
JUDGE Mgn/-