Partly allowed

Sri H K Ramesh v. Sri B a Srinivas Murthy

Karnataka HC10 Jan 2023CRL.RP/1300/2018

Case brief

AI extract

What is this about?

The revision petition challenging a conviction under the Negotiable Instruments Act for cheque bounce was allowed in part. The court confirmed the conviction but modified the irrational sentence, directing payment of fine with imprisonment only in default of payment.

What did the court decide?

Conviction confirmed; sentence modified to pay fine of Rs. 8,10,000/- with simple imprisonment for one year if fine remains unpaid.

Sri H K Ramesh Vs Sri B a Srinivas Murthy — Cheque Dishonour | Karnataka HC (2023)

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CRL.RP No. 1300 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL REVISION PETITION NO. 1300 OF 2018

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BETWEEN:

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SRI. H.K. RAMESH S/O LATE H.D. KRISHNE GOWDA, AGED ABOUT 53 YEARS, PROPRIETOR OF JAYASHRI PLASTIC FACTORY, NEAR RTO OFFICE, BHATTARAHALLI, OLD MADRAS ROAD, BENGALURU-560049.

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…PETITIONER

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(BY SRI. PRASANNA B.R., ADVOCATE)

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AND:

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SRI. B.A. SRINIVAS MURTHY S/O ANJANEYAPPA, AGED ABOUT 40 YEARS, R/AT SHILLANGERE VILLAGE, HUTHUR HOBLI, KOLAR TALUK-590031.

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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…RESPONDENT

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(BY SRI. RAVI H.K., ADVOCATE)

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THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 14.11.2017 IN C.C.NO.151/2013 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C., KOLAR WHICH IS CONFIRMED IN THE JUDGMENT DATED 01.10.2018 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, KOLAR IN CRL.A.NO.52/2017 AND ACQUIT THE PETITIONER.

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CRL.RP No. 1300 of 2018

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed challenging the judgment of conviction dated 14.11.2017 passed by the Principal Civil Judge and JMFC., Kolar in CC.No.151/2013, convicting him for an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881' for short) and the consequent sentence of simple imprisonment for a period of one year and to pay a fine of Rs.8,10,000/- and in default of payment of fine, he was ordered to undergo simple imprisonment for a period of three months. The petitioner has also challenged the judgment dated 01.10.2018 passed by the I Additional Sessions Judge, Kolar in Crl.A.No.52/2017, by which, the judgment of conviction passed by the trial Court was upheld.

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The respondent claimed that he knew the petitioner and that the petitioner had requested for a hand loan of Rs.8,00,000/- and assured to repay it within 8 months. Accordingly, the respondents paid a sum of Rs.8,00,000/- by

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CRL.RP No. 1300 of 2018

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cash, which he drew from his account. After eight months when he requested the petitioner to repay the loan, the latter issued a cheque bearing No.335202 dated 25.06.2012 for a sum of Rs.8,00,000/-. However, when the cheque was presented for encashment, it returned unpaid on 27.06.2012 as the account was closed. The respondent caused a notice of demand on 07.07.2012, which was served on the petitioner, who replied denying his liability. The respondent therefore initiated proceedings for prosecution of the petitioner for the offence punishable under section 138 of NI Act, 1881. The sworn statement of the respondent was recorded and CC.No.151/2013 was registered. The petitioner was served with the process, who pleaded not guilty and claimed to be tried. The respondent was examined as PW.1 and he marked Exs.P1 to P9. The statement of the petitioner was recorded under Section 313 of Cr.P.C., but he denied the incriminating evidence against him. The petitioner was examined as DW.1 and he marked Ex.D1 and D2. He contended that the sister of the respondent had also filed a case as per Ex.D2.

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CRL.RP No. 1300 of 2018

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Based on the oral and documentary evidence, the

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trial Court held that the issuance of cheque was admitted by the petitioner. It held that the petitioner was not able to establish his defense that he had issued the cheque in question to a person named Srinivasa Gowda and not to the respondent. It held that the petitioner was unable to rebut the presumption under section 139 of NI Act, 1881 and therefore, convicted him for the offence and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.8,10,000/-. Being aggrieved by the said judgment, the petitioner filed Crl.A.No.52/2017, which too was dismissed.

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Being aggrieved by the same, the present revision petition is filed.

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Learned counsel for the petitioner submitted that the respondent did not prove that he had the financial ability to advance a hand loan of a sum of Rs.8,00,000/-. He contended that the sister of Srinivasa Gowda had filed a proceeding before the Court at Hosur against the wife of the petitioner as per Ex.D2 for an offence punishable under Section 138 of NI Act,

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CRL.RP No. 1300 of 2018

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He therefore submitted that the said Srinivasa Gowda was the person who was misusing the cheques lying with him and the respondent herein was set up by the said Srinivasa Gowda. The learned counsel submitted that the trial Court could not have sentenced the petitioner to undergo simple imprisonment for one year and also order fine of Rs.8,10,000/-.

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Per contra , learned counsel for the respondent submitted that the petitioner did not mention his defense when he issued the reply at Ex.P7 to the notice of demand at Ex.P4. He submitted that the petitioner did not make any efforts to secure the said Srinivasa Gowda to depose before the Court. Even otherwise, he submitted that the respondent had drawn a sum of Rs.8,00,000/- from his account on 10.10.2011, which is evident from Ex.P9 and the said amount was paid to the petitioner. Therefore, he contended that the financial ability of the respondent to advance hand loan of Rs.8,00,000/- cannot be disputed.

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The fact that the respondent was in possession of sufficient funds is evident from Ex.P9, which also shows that he

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CRL.RP No. 1300 of 2018

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had withdrawn a sum of Rs.8,00,000/- on 10.10.2011. The cheque in question was dated 25.06.2012 and the signature thereon is undisputedly the signature of the petitioner. Though the petitioner claimed that this cheque was given to Srinivasa Gowda, he made no effort to secure his presence before the Court. Even otherwise, the petitioner did not take any such contention in the reply to the notice of demand issued by the respondent. Therefore, the trial Court was justified in drawing a presumption under Section 139 of NI Act, 1881. The petitioner was running a factory and as per his own evidence, he was purchasing materials worth Rs.12-13 Lakhs every month. Therefore, it is probable that the petitioner had raised a loan from the respondent and had passed on the cheque in question towards repayment of the said loan. Hence, the judgment of conviction passed by the trial Court and upheld by the Appellate Court do not warrant interference by this Court.

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However, the trial Court had sentenced the petitioner to undergo simple imprisonment of one year and also to pay a fine of Rs.8,10,000/-, which was wholly irrational having regard to the punishment prescribed under Section 138

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CRL.RP No. 1300 of 2018

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of NI Act, 1881, which could extend up to two years or with fine that could extend up twice the cheque amount or with both. Having regard to the fact that a proceeding under Section 138 of NI Act, 1881 is quasi-criminal in nature intended to recover the amount payable under the cheque and the purpose of the punishment by way of imprisonment is to enforce the payment. Thus, the trial Court ought to have awarded fine and in default of payment of fine, it must have ordered the petitioner to undergo simple imprisonment.

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In view of the above, this revision petition is allowed-in-part .

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The impugned judgment of conviction dated 14.11.2017 passed by the Principal Civil Judge and JMFC, Kolar in C.C.No.151/2013, which was upheld by the I Additional Sessions Judge, Kolar in Crl.A.No.52/2017 is confirmed. However, the order of sentence passed by the trial Court is modified and the petitioner is directed to pay a fine of Rs.8,10,000/- and in default, he shall undergo simple imprisonment for a period of one year. Out of the fine amount,

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CRL.RP No. 1300 of 2018

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a sum of Rs.8,05,000/- shall be paid to the respondent as compensation under Section 357(3) of Cr.P.C. The balance amount of Rs.5,000/- shall be appropriated as cost to the State.

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The petitioner is granted two months time to pay the fine amount, failing which, the respondent is entitled to execute the order of default sentence.

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Sd/JUDGE

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NR/-

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List No.: 1 Sl No.: 43

Sri H K Ramesh v. Sri B a Srinivas Murthy

Case brief

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Sri H K Ramesh v. Sri B a Srinivas Murthy

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