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1 IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR.JUSTICE V. SRISHANANDA
CRL.RP. NO.118 OF 2018
BETWEEN:
SRI. MAHADEVAIAH (WRONGLY SHOWN AS MADESHA IN COURTS BELOW) S/O VENKATAPPA AGED ABOUT 45 YEARS R/AT MUDDINA PALYA DODDANNA CIRCLE YASHWANTHAPURA HOBLI VISHWANEEDAM POST BENGALURU – 560 091
... PETITIONER
(BY SRI. PRASANNA V. R., ADVOCATE)
AND:
SRI. M. JAGADEESH S/O MADAPPA AGED MAJOR R/AT BTS LAYOUT HEROHALLI ULLALA MAIN ROAD NEAR BYADARAHALLI BENGALURU – 560 091
… RESPONDENT
(BY SRI. R. SRINIVAS, ADVOCATE [ABSENT])
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 12.12.2017 IN CRL.A.NO.32/2017 PASSED BY THE
2 LEARNED I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE AND ORDER DATED 25.02.2017 IN C.C.NO.8492/2015 PASSED BY THE LEARNED CHIEF JUDICIAL MAGISTRATE, BANGALORE RURAL DISTRICT, BANGALORE CONVICTING THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT AND THE PETITIONER BE ACQUITTED BY ALLOWING THIS REVISION PETITION.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Though this matter is listed for admission, with the consent of both parties, the matter is taken up for final disposal. 2. Heard Sri.Prasanna V.R., learned counsel for the revision petitioner and perused the records.
Learned counsel for the respondent is absent.
This revision petition is filed against the order passed by the learned Magistrate whereby accused came to be convicted for the offence punishable under Section 138 of Negotiable Instrument Act,
3 1881 (hereinafter referred to as ‘N.I. Act’ for short) and ordered to pay fine of Rs.3,25,000/- with simple imprisonment for a period of three months and with default sentence of simple imprisonment for a period of one month and out of the fine imposed on accused i.e., Rs.3,25,000/-, a sum of Rs.3,00,000/- was ordered to be paid as compensation to the complainant, which was confirmed in Criminal Appeal No.32/2017.
The brief facts of the case are as under:-
Accused stood trial for the offence punishable under Section 138 of N.I. Act. As admittedly, the cheque passed on by him got dishonored and he failed to comply with callings of statutory notice.
The trial Magistrate after considering the oral and documentary evidence on record including the oral testimony of DW-1, the accused was convicted for the offence punishable under Section 138 of N.I. Act and passed an order
4 of sentence whereby, accused was required to undergo Simple Imprisonment for a period of three months for the offence punishable under Section 138 of N.I. Act and ordered to pay fine of Rs.3,25,000/- out of which, a sum of Rs.3,00,000/- was ordered to be paid as compensation to the complainant and remaining amount of Rs.25,000/- shall vest with the State towards defraying expenses, which was confirmed by the First Appellate Court. The accused has challenged the orders passed by the trial Court as well as First Appellate Court on the following grounds:- 1. “The Judgment and Orders impugned in this petition are opposed to law, facts and circumstances of the case.
The Judgment and orders impugned passed by the Courts below are unsustainable and passed without proper appreciation of the entire case of the parties.
The Judgment and orders of conviction are based on assumption and presumption without there being any independent
5 documentary evidence except cheque in question.
The Respondent has filed Complaint under Section 138 of the N.I.Act, 1881. The burden is on the Respondent complainant to prove the fact that the said Cheque was issued in order to discharge a legally enforceable debt. Admittedly, there is no documentary evidence by the Complainant on order to prove the existence of legally recoverable debt from the Accused, except the cheque in dispute. Even there is no whisper either in the legal notice or in the Complaint or in his affidavit in lieu of examination in chief, when and where he advanced the loan of Rs.2,50,000/- to the accused, what are the documentary proof thereof showing agreed rate of interest and payable and at what time, etc., In the absence of the above, the Courts below ought not to have order for conviction of the accused merely because presumption under Section 118 & 139 of N.I.Act, 1881 is in favour of the Complainant unless there are supporting evidence. Under the circumstances, therefore, the Courts below are erred in holding that the provisions of Section.138 of the NI Act is attracted.
6 5. The actual name of the Petitioner/Accused is Mahadevaiah whereas notice of demand under Section 138 of NI Act was addressed in the name of Madesha which has not been duly served on the Accused but some body else must have been received vide Ex.P-5, as such, there is no cause of action to institute the complaint. However, the Courts below assumed that since summons in CC No.8492/2015 is served on the Accused in the same name of Madesha who appeared, the demand notice is served and his defense is untenable. The fact remains that the summons was served the Police who insisted the Accused to appear in the case and on the other hand, the cause title in the Order of conviction show as Madesha, the Petitioner was made to mention his name as Madesha only even in the appeal and in this revision petition in order to avoid technical office objections. Therefore, the Judgment and Orders impugned are liable to set-aside.
The courts below have failed to appreciate the fact that the judgment in Rangappa’s case passed by the Hon’ble Apex Court is applicable and erred in holding that the judgment of Hon’ble Apex court in K Subramani’s case is not applicable to the facts of the case. It is not the facts of the
7 case to be applicable but ratio and law declared by Hon’ble Apex Court is relevant.
The finding of the Courts below to the effect that the complainant has proved that there exist legally recoverable debt is erroneous in the absence of materials other than the presumption available. The PW-1 admits that he did not reported the factum of alleged loan to the Department of income tax and not shown in his returns which I sufficient to disbelieve the case of the Complainant. On the other hand, the Courts below proceeded on the bases that the Accused has failed to rebut the presumption even though the Complainant has not discharged his burden. There is no dispute that the Complainant had advanced Rs.20,000/- earlier which amount has been repaid, but the dispute is as to whether the Cheque in question stated to be collected towards security is returned to the Accused or not. When such being the position, it was the burden of the Complainant what are the documentary evidence to prove when and what date he advanced the money of Rs.2,50,000/- other than, Rs.20,000/- earlier.
The admission of PW-1 during his cross examination as to non mentioning date of
8 alleged advance, purpose of alleged advance, non product of document in proof of contract reg. payment of interest, his source of money to advance, no independent witness except his wife, etc., and non examination of his wife the alleged witness to the transaction are fatal to the case of the Complainant.
Though the Courts below have referred several Judgments of both the Hon’ble Supreme Court as well as this Hon’ble Court, the same have not been appreciated in its proper perspective. In the peculiar facts and circumstances of the present case, the burden of proving the legally enforceable debt or liability is on the Respondent Complainant since the Petitioner has pleaded that the cheque was issued towards security.”
Reiterating the above grounds, learned counsel for the revision petitioner contended that both the Courts have wrongly convicted the accused. Alternatively, Sri.Prasanna V.R., learned counsel for the revision petitioner contended that even if this Court were to hold that the accused is
9 guilty of the offence punishable under Section 138 of N.I. Act, a sum of Rs.25,000/- ordered towards defraying expenses of the State needs to be set aside so also imprisonment may be set aside.
Learned counsel for the respondent – complainant remained absent on the previous occasion as well as on today. 7. In the light of the arguments advanced by the counsel for the revision petitioner, following points would arise for consideration:- "1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offence punishable under Sections 138 of N.I. Act, which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference? 2. Whether the sentence is excessive?"
In the case on hand, issuance of cheque and the signature found on the cheque at Ex.P1, as such, the complainant enjoys the presumption
10 available to him under the provisions of Sections 118 and 139 of N.I. Act is not in dispute. In order to rebut the said presumption, accused got examined himself as DW-1. However, in his evidence there is no cogent and convincing evidence on record to rebut the presumption available to the complainant. As such, trial Magistrate was justified in holding that accused is guilty of the offence punishable under Section 138 of the N.I. Act which has been rightly re- appreciated and confirmed by the First Appellate Court even after reconsideration of the entire materials on record.
Hence, this Court is of the considered opinion that there is no compelling reasons for this Court to hold that the finding recorded by the trial Magistrate as well as First Appellate Court is suffering from legal infirmity, perversity and thus,
11 calls for interference. Accordingly, point No.1 is answered in the Negative.
Point No.2:- 10. Insofar as sentence is concerned, admittedly cheque is in a sum of Rs.2,50,000/-. The trial Magistrate in its discretion imposed fine of Rs.3,25,000/- along with simple imprisonment for a period of three months.
It is submitted at the Bar that already a sum of Rs.1,62,500/- has been deposited by the revision petitioner before the trial Court. Taking note of the said fact and he is also willing to pay balance sum, out of Rs.3,00,000/-, this Court is of the considered opinion that simple imprisonment for a period of three months needs to be set aside.
Primarily, the amended N.I.Act is to serve the purpose of compensating the complainant or the holder of the cheque and it is not intended to
12 punish anybody. It is only in a extreme circumstances the imprisonment is sought for. Therefore, taking note of the said aspect of the matter, simple imprisonment for a period of three months ordered by the trial Magistrate needs to be set aside as it is excessive. Further, since it is a private affair between complainant and accused, ordering Rs.25,000/- towards defraying expenses for the State also needs to be interfered with. Accordingly, the said portion of the sentence also need to be set aside. In view of the same, point No.2 is answered in the Affirmative and pass the following:- ORDER
(i) This Criminal Revision Petition is allowed-in-part. (ii) While maintaining the conviction of the accused for the offence punishable under Section 138 of N.I. Act, infact the order
13 of sentence is modified by directing the revision petitioner to pay a sum of Rs.1,37,500/- on or before 15.01.2022.
(iii) If there is failure to pay the said sum within the stipulated time, the order of the trial magistrate stands restored automatically.
Sd/- JUDGE
MH/-