No AI summary yet for this case.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF AUGUST, 2021 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO CRIMINAL REVISION PETITION No.716/2017 BETWEEN:
SMT. B.S MANJULA DEVI W/O GANGADHARAIAH AGED ABOUT 47 YEARS R/AT BORALINGANAPALYA VILLAGE KASABA HOBLI KUNIGAL TALUK TUMKUR DISTRICT-572 130.
...PETITIONER (BY SRI. S. VINOD, ADVOCATE)
AND:
SRI. B.V. ARUN KUMAR S/O VENKATACHALA SHASTRY AGED ABOUT 33 YEARS R/AT SHAMANNA BLOCK RAILWAY STATION ROAD CHINTAMANI TALUK CHIKBALLAPUR DISTRICT-563 125.
...RESPONDENT
(BY SRI A.C. MANJUNATH, ADVOCATE -ABSENT)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED:10.12.2015 PASSED IN C.C.NO. 26/2013 BY THE PRL. CIVIL JUDGE AND J.M.F.C., CHINTAMANI WHICH IS CONFIRMED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA IN CRL.A.NO.09/2016 DATED: 28.02.2017.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION, THIS DAY, THROUGH VIDEO CONFERENCING THE COURT MADE THE FOLLOWING: ORDER
This revision petition is directed against the Judgment dated 28.02.2017 passed in Criminal Appeal No. 9/2016 on the file of II Additional District and Sessions Judge, Chickballapur (sitting at Chintamani) wherein the appeal preferred against judgment and order dated 10.12.2015 passed in C.C.No.26/2013 came to be dismissed.
Earlier, the accused was convicted by the learned trial Judge for an offence punishable under Section 138 of NI Act and sentenced to pay a fine of Rs.7,20,000/- and in default of pay fine, the accused shall undergo simple imprisonment for a period of one year.
In order to avoid confusion, the parties herein addressed according to their stand and ranking as referred in the trial Court.
The summary of the case of the complainant in the trial Court reads as under: “The accused borrowed a sum of Rs.7,00,000/- during the last week of July 2012 for her urgent family needs, legal necessities and for agricultural operation and for repayment of the same had issued cheque for Rs.7,00,000/- on 05/09/2012 bearing No.167223 drawn on Indian Overseas Bank. Kunigal Branch in favour of the complainant. On presentation, the said cheque came to be returned with an endorsement “Funds insufficient”. Thereafter, the complainant got issued legal notice on 03.10.2012 to the accused, demanding for repayment of cheque amount of Rs. 7,00,000/-. The notice sent by RPAD was served to the accused. Inspite of receipt of legal notice, she neither complied the notice nor replied to the same and thus accused committed an offence punishable u/s. 138 of NI Act and punish the accused in accordance with law and to award suitable compensation, in the interest of justice and equity”.
On service of notice, the accused appeared before the Trial Court through her counsel.
The learned Trial Judge was accommodated with the oral and documentary evidence as under:- List of witnesses examined for the complainant: PW-1 : Arun Kumar
List of witnesses examined for the accused: DW-1 : B.S.Manjula Devi
List of documents marked for the complainant: Ex.P1
: Cheque Ex.P2 & 3 : Endorsements Ex.P4
: Legal notice Ex.P5
: Postal receipt Ex.P6
: Postal acknowledgement Ex.P7
: Reply notice Ex.P8
: partnership deed Ex.P9
: Vat registration certificate Ex.P10
: Partnership deed Ex.P11
: Vat registration certificate Exs.P12-P15 : Paper publications Exs.P16 & P18 : Indian income tax return
acknowledgements Ex.P19
: Statement of accounts Ex.P20
: Photo Ex.P21
: CD Ex.P22
: C/c. Judgment in CC 775/2013 Ex.P23
: C/c. complaint in CC 775/2013 Ex.P24
: Sworn statement Ex.P25
: C/c. cheque Ex.P26
: C/c return memorandum Ex.P27
: C/c endorsement Ex.P28
: C/c. legal notice
Ex.P29
: C/c postal receipt and acknowledgement Ex.P30
: C/c reply notice Ex.P31
: C/c judgment in CC 641/2013 Ex.P32
: C/c complaint in CC 641/2013 Ex.P33
: C/c evidence in CC 641/2013 Ex.P34
: C/c Cheque at Ex.P34 Ex.P35
: C/c of endorsement Ex.P36
: C/c legal notice Ex.P37
: C/c of Postal receipt and
acknowledgement Ex.P38
: C/c reply notice
List of documents marked for the accused: -Nil-
On conclusion of the trial, the complaint came to be allowed, the accused was found guilty for an offence punishable under Section 138 of NI Act and was sentenced to pay fine of Rs.7,20,000/-, failing which, the accused shall under go simple imprisonment for a period of one year and out of the said amount Rs.7,20,000/-, Rs.20,000/- was ordered to be paid by way of compensation to the complainant.
The appeal preferred by the accused against the Judgment of conviction and order of sentence came to
be dismissed. Against which, the accused has presented this revision petition.
Learned counsel for the accused/revision petitioner submits that the accused did not issue any cheque in favour of the complainant during 2002. However, with reference to chit transactions cheque was issued to the father-in-law of the complainant by way of security and the same is misused by the complainant to make wrongful gain. The complainant is not at all having capacity to accumulate the amount of Rs.7,00,000/- and the case is filed in this connection in order to harass the accused. Learned counsel further submits that the notice sent by the accused marked as Ex.P4 is defective as the time mentioned for repayment therein it is stated as “within forth night”. The learned counsel further submitted that spelling is not mentioned for the term “forth night” as to whether notice has been issued forthwith or forth night. It was further submitted that the appellate judge has discussed in the judgment at paragraph 19, wherein it is
stated that the complainant is the partner of the Shastri Automobiles firm and the gross income of the said firm as per Ex.P16 is shown as Rs.1,25,480/- and gross income of the Sapthagiri Enterprises is Rs.94,550/- for the year 2013-14.
It was further submitted that the learned appellate judge has found that the grounds regarding financial capacity were not taken.
However, on reading it shows that the accused has no financial capacity. The relevant portion has been reproduced as hereunder: “19. The Shastry Autombiles is a partnership firm consisting of five partners at Ex.P8 and as per Ex.P9 the Sapthagiri Enterrises is consisting of complainant himself and one Vasala. The gross income of the Shastry Automobiles as per Ex.P16 is Rs.1,25,480/- and gross income of Sapthagiri enterprises is Rs.94,550/- for the year 2013-14. So it clearly shows that whether the complainant is having financial capacity to pay sum of Rs. seven lakhs. Because there are no other IT returns produced by complainant. Unfortunately appellant has not taken any defence or grounds in this regard.”
In case of Negotiable Instrument, merely allegation by one and denial by other would result in onus on the person to establish. But when it is a specific or separate plea or defense by the denying party and when he pleads the special defense, onus is on the denying party to discharge the burden on special plea. Because in this case, it is the case of the accused that the cheque was given to the father-in-law of the complainant during the year 2012 as a security. In this connection, it is necessary on the part of the accused to say what was the amount which he owed to father-in-law of the complainant in the form of monetary obligation or in any form and as a security for payment of what amount the cheque was issued. This is not explained. Thus, the said defense appears as a defense without there being corroborating or substantiating evidence. In the overall facts and circumstances, there are no separate evidence by the accused towards his stand and in the light of facts and circumstances of the case.
However, the accused has stated in the chief- examination that the liability or the debt was Rs.78,000/- to the father-in-law of the complainant. The learned trial judge and the appellate judge have found liability of the accused to pay the amount of Rs.7,00,000/-, the said cheque is addressed to B.V.ArunKumar and the amount of Rs.7,00,000/- mentioned in the words, digits and the date is not mentioned. The counsel submits that date is not mentioned in the cheque. On observation, the date of the cheque is clearly mentioned as 05/09/2012. It is submitted by the learned counsel that the year is mentioned as ‘12’ after three digits i.e., 200. Thus, it becomes 2012. The digits 200 are printed and it should have been mentioned as one digit because after 200 it cannot be rectified into 2012 without overwriting. Thus, it appears that accused in the habit of glittering trouble man and making mistakes.
Further contention of the counsel is that, in the legal notice, no date is mentioned regarding the date of
the cheque. But I do not know whether the learned counsel has lost his sight of reading the date on Ex.P4 wherein it is darkly and clearly mentioned as 03/10/2012. Thus, the accused is considering everything from the angle of sensitivity and he is not in a position to read the words with reference to context. In the overall context and circumstances of the case, I find the defense is forwarded to avert the liability. Both the trial court and appellate court were right in coming to the conclusion that the accused was guilty of the alleged offence. I do not find any infirmity, perverse or illegality in the judgment of the trial Court which was confirmed by the Appellate Court by dismissing the appeal.
The learned counsel submits that the petitioner is a lady and imprisonment of one year is ordered and prays to reduce the same.
In the ends of principle of natural justice, the sentence is liable to be reduced to six months.
The petition is allowed-in-part. The Judgment of conviction and order of sentence is modified to the above extent.
Sd/- JUDGE Mkm