In a criminal revision petition under Sections 401 r/w 397 Cr.P.C., the High Court of Karnataka confirmed the conviction and sentence of the accused for an offence under Section 138 of the Negotiable Instruments Act, dismissing the challenge to the lower courts' findings.
Revision petition dismissed; conviction and sentence confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T CRIMINAL REVISION PETITION NO. 514 OF 2016
BETWEEN:
SMT. M. G. SWARNAMBA W/O. SRI. VIJAYA KUMAR AGED ABOUT 51 YEARS RESIDING AT No.106 AISHWARYA LAKSHMI NILAYA, 4TH CROSS, VISHWAPRIYA NAGAR 2ND BLOCK, OFF: BEGUR MAIN ROAD BANGALORE - 560 068.
…PETITIONER
(BY SRI GANESH BHAT Y H, ADVOCATE)
AND:
SRI M. SANJEEV RAJU
Digitally signed by DHARMALINGAM Location: HIGH COURT OF KARNATAKA
S/O. LATE MUNISWAMAIAH
SINCE DEAD BY HIS LRs.
BOTH ARE RESIDING AT No.7, 3RD CROSS
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SRI. VINAYAKA LAYOUT K.R. PURAM EXTENSION BANGALORE - 560 034.
…RESPONDENTS
(BY SRI M N UMASHANKAR, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET-ASIDE THE ORDER DATED 17.01.2015 IN C.C.No.2475/2014 PASSED BY THE XIII ADDITIONAL C.M.M., BANGALORE AND SET-ASIDE THE ORDER DATED 24.02.2016 IN CRL.A.No.220/2015 PASSED BY THE LXVI ADDITIONAL CITY CIVIL AND S.J. (CCH-67) AT BANGALORE; AND ALLOW THIS REVISION PETITION BY DISMISSING THE COMPLAINT IN C.C.No.2475/2014 ON THE FILE OF THE XIII ADDITIONAL C.M.M., BANGALORE AND ACQUITTING THE PETITIONER FOR THE OFFENCE UNDER SECTION 138 OF THE N.I.ACT.
THIS REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel Sri Ganesh Bhat.Y.H, for
the petitioner and Sri M.N.Umashankar, learned counsel for the respondent.
under Section 401 r/w Section 397 of Cr.P.C. praying to set aside the judgment of conviction and sentence passed by the learned 13th Addl. Chief Metropolitan Magistrate, Bangalore in CC No.2475/2014 and judgment passed by
the learned LXVI Addl. City Civil and Sessions Judge (CCH 67) Bangalore in Crl.A.No.220/2015 and prayed to acquit the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act.
The complainant filed a private complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of the Negotiable Instruments Act (for short “N.I.Act”), contending that he is a retired account officer in ITI. The complainant and accused are well known to each other and they were good friends since many years. It is contended that the accused husband was doing building contract work and was well acquainted with complainant and he used to borrow and repay some loans. As such, in
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the month of September, 2012, accused approached the complainant to advance loan of Rs.2,00,000/- for his business need. Hence, on 06.09.2012 accused borrowed loan of Rs.2,00,000/- and promised to repay the said amount within six months. After couple of months when the complainant demanded to repay the loan amount accused issued a cheque bearing No.652823 dated 08.03.2013 for Rs.2,00,000/- drawn on the State Bank of India, Koramanagala Branch, Bangalore and on being presentation of said cheque on 08.03.2013 and 28.03.2013, cheque was dishonoured twice with an endorsement as “funds insufficient” vide memo dated 15.03.2013 and 30.03.2013, then the complainant got issued legal notice calling upon the accused to pay the amount due under the cheque. Though notice was duly served on the accused, accused failed to repay the amount, hence the complainant filed private complaint under Section 200 of Cr.P.C., for the offence punishable under Section 138 of N.I.Act.
recorded the sworn statement of complainant, took cognizance under Section 190(1)(a) of Cr.P.C., secured the presence of accused and recorded plea of accused; accused pleaded not guilty and claimed to be tried.
evidence, the trial court convicted the accused for the offence punishable under Section 138 of the N.I.Act and directed the accused to pay a sum of Rs.2,05,000/- and in default of payment of fine amount, he shall undergo simple imprisonment for six months.
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sentence passed by the trial court, the accused had filed an appeal in Crl.A.No.220/2015 before First Appellate Court, in turn, the Appellate Court confirmed the order of trial Court, thus, dismissed the appeal. Now, aggrieved by order of both the Courts, the accused filed this revision petition contending that conviction of sentence passed by
the trial court is not in accordance with law, the complainant failed to prove the requirement of Section 138 of N.I. Act, as accused disputed the cheque in question. It is contended that the transaction was held in the year 2009 and cheque was issued in the year 2009, for security of the said transaction accused issued one cheque
but the complainant has misused the said cheque and presented the same in the year 2013 whereby he has misused the said cheque.
the amount received from Sri M.Sanjeeva Raju as per Ex.D2. Therefore no amount was due to the complainant
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and hence there is no legal enforceable debt or liability due and payable by accused to Sri M.Sanjeeva Raju, but the trial court as well as the First Appellate Court have not considered these factual and legal aspects, convicted the petitioner for the offence punishable under Section 138 of the N.I. Act. It is contended that though accused established the fact that cheque in question was issued as
a security on 01.11.2009 itself as per the contents of Ex.D1, D7, D7(a), D(9) and the present transaction is not towards discharge of debt as claimed by the complainant.
It is further contended that PW1 Sri Jaykeerthi had personal knowledge about the alleged transaction, both the courts have erred in coming into conclusion the complaint has established his case and passed impugned orders. On all these facts, learned counsel for the petitioner prays to allow the petition.
that both the courts have given concurrent finding and the respondent as is convicted for the offence under Section
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138 of the N.I. Act. The complainant has proved his case beyond doubts and hence the trial court as well as the first appellate court drawn presumption under Section 138 of Negotiable Instrument Act. The learned counsel for the respondent submits that if loan was discharged in the year 2010 itself, the accused ought to have issued legal notice to complainant and insist for return of cheque, but the accused failed to do so. Further if accused were discharged the loan in question, he would have instructed the bank authorities for stop payment, as amount was completely discharged but the accused failed to instruct his bankers. Therefore, the complainant has proved his case. Thus the trial court as well as the first appellate court passed the impugned orders. Hence, the learned counsel justified the judgment of conviction and sentence passed by the trial court as well as the first appellate court and thus prayed for dismissal of the revision petition.
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(1) Whether the revision petitioner proved that there is apparent error on the face of record in the judgment of the trial court as well as the first appellate court in convicting the accused for offence punishable under Section 138 of the Negotiable Instruments Act?
(2) Whether the judgment of conviction and sentence passed by the trial court as well as first appellate court is perverse and called for interference?
complaint under Section 200 of Cr. P.C. against the accused for the offence punishable under Section 138 of
the Negotiable Instruments Act. After the death of original complainant, his son Jaykeerthi examined on oath as PW1
and got marked in all 17 documents. Ex.P1 is cheque, Exs.P2 and P3 are bank endorsements, Exs.P4 and P5 are bank challans, Exs.P6 and P7 are bank endorsements, Ex.P8 is copy of the legal notice issued to the accused and called upon him to pay the amount due under the cheque, Exs.P9 to P12 are RPAD receipts, Exs.P13 and P14 are RPAD postal acknowledgements, Ex.P15 is reply notice, Ex.P16 is complaint and Ex.P17 is death certificate of the complainant.
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appears that the accused had borrowed a sum of Rs.2,00,000/- from complainant and in consideration
thereof, she had issued Ex.P1 cheque for a sum of Rs.2,00,000/- and on 08.03.2013 and 28.03.2013 the complainant presented the cheque for encashment to the banker and the cheque was dishonoured twice for the reason “funds insufficient” in the account of the accused. Inspite of issuance of legal notice as per Ex.P8, accused failed to repay the said amount due under Ex.P1 cheque.
produced cheque in question and it is maked as Ex.P1. The signature of the accused is also marked as Ex.P1(a). The
bank endorsements also marked as Ex.P2 and P3. On
perusal of all these documents it clearly establishes that the accused has not disputed the issuance of cheque and she has not disputed service of legal notice on her. As per the presumption available under the NI Act, the complainant has complied the legal requirements under
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Section 138 of the Act. Now burden shifts on the accused to disprove the case of the complainant.
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the legally enforceable debt towards loan borrowed by her in this regard, accused has not produced any contra evidence to disbelieve the case of the complainant.
the Hon’ble Apex Court clearly held that if cheque issued towards discharge of any debt or any other liability, it is to be called as legally enforceable debt or other liability, it is to be called as legally enforceable debt within the meaning of Section 138 of N.I.Act. In the instant case as the matter of fact the existence of debt or liability was never in dispute. On the contrary it was acknowledged by
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accused and she has simply taken a contention that the cheque was issued in the year 2009 and she discharged the earlier transaction in the month of May, 2010.
that on the relevant date, he lent loan to the accused and in consideration thereof, accused issued cheque in favour of complainant. Further the accused has not placed any
material before court to prove under what circumstances she issued cheque in favour of the complainant. Further the accused has taken a contention that she discharged the loan in the year 2009 itself, but she never called upon
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the complainant to return the cheque in question if she were discharged the loan in complete, further she also failed to instruct her banker for stop payment but she failed in instructing her banker.
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invoking Section 20 of the N.I.Act filled up the cheque in question and presented for encashment. Hence the trial court as well as the first appellate court drawn presumption under Section 118 of N.I.Act as to consideration, as to debt, as to time of acceptance, as to time of transfer and as to stamps and that the holder in due course.
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punishable under Section 138 of N.I.Act and he has fulfilled the ingredients as required under Section 138 of N.I.Act.
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material on clinching aspect on the peculiar circumstances of the case, then the conviction under Section 138 of
N.I.Act can be sustained.
ORDER
(i) The revision petition filed by the accused is dismissed.
(ii) The judgment of conviction and sentence passed by the XIII Addl. Chief
Metropolitan Magistrate, Bangalore, in C.C.No.2475/2014 is confirmed.
Sd/JUDGE
KLY/-
2 issues framed by the court
Whether the revision petitioner proved that there is apparent error on the face of record in the judgment convicting the accused for offence under Section 138 of the Negotiable Instruments Act?
Whether the judgment of conviction and sentence passed by the trial court and first appellate court is perverse and called for interference?
Colour shows how this judgement treated each authority
Don Ayenga Vs. State of Assam and AnotherExplained¶92
Don Ayenga vs. State of Assam and Another reported in 2016 Criminal Law Journal 1346
Vijay Mohan Singh Vs. State of KarnatakaRelied on¶114
Vijay Mohan Singh vs. State of Karnataka reported in (2019) 5 SCC 436 · Who else cites this
5 provisions across 2 enactments
Smt. M. G. Swarnamba
Sri M. Jayakeerthi
Smt. Lakshmishree
Venkatesh Naik T
As recorded by the court registry
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