Partly allowed

Sri B Rajesh Jain v. Sri K C Manjunatha

Karnataka HC8 Nov 2024CRL.RP/109/2024

Case brief

AI extract

What is this about?

Revision against conviction under Section 138 NI Act for two dishonoured Rs.4 lakh cheques issued for a Rs.8 lakh loan. Court found defence of forcibly taken cheques unsupported, upheld conviction, reduced fine from Rs.10 lakh to Rs.9.90 lakh and set aside Rs.10,000 State defraying expense.

What did the court decide?

Conviction under S.138 NI Act maintained; fine reduced from Rs.10,00,000 to Rs.9,90,000 payable as compensation by 10.12.2024 else six months simple imprisonment; Rs.10,000 defraying expense set aside

Sri B Rajesh Jain Vs Sri K C Manjunatha — Cheque Dishonour | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 8^TH DAY OF NOVEMBER, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 109 OF 2024

¶6

BETWEEN:

¶7

SRI. B. RAJESH JAIN, S/O LATE K. JINARAJA MUDYA, AGED ABOUT 43 YEARS, NO. 367, 6TH MAIN, BEML LAYOUT, 5TH STAGE, R.R. NAGAR, BENGALURU - 560 098.

¶8

…PETITIONER

¶9

(BY SRI. H. MALTHESH, ADVOCATE)

¶10

AND:

¶11

Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

¶12

SRI. K.C. MANJUNATHA, S/O LATE K. CHANNABASAPPA, AGED ABOUT 52 YEARS, R/A NO. 131, 2ND CROSS, TELECOM LAYOUT, K.P. AGRAHARA, VIJAYANAGAR, BENGALURU - 560 023.

¶13

(BY SRI. HEMANTH KUMAR G.M, ADVOCATE)

¶14

…RESPONDENT

¶15

THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO A. SET ASIDE THE JUDGMENT OF CONVICTION DATED 21.10.2021 PASSED BY THE COURT OF SMALL CAUSES AND ACMM AT BENGALURU IN C.C.NO.5869/2019.

¶16

¶17

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶18

THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

¶19

CORAM: HON'BLE MR JUSTICE V SRISHANANDA

¶20

ORAL ORDER

¶21

Heard the learned counsel for the revision petitioner Sri. H. Malthesh and the counsel for the respondent Sri. Hemanth Kumar G.M.

¶22

Accused/Petitioner has suffered an Order of conviction in CC No.5869/2019 confirmed in Crl.A.

¶23

No.919/2021, has filed the present revision petition.

¶24

Facts in the nutshell for the disposal of the revision petition are as under:

¶25

A complaint came to be lodged under Section 200 of the Code of Criminal Procedure alleging the commission of offence punishable under Section 138 of the Negotiable Instruments Act by the complainant contending that the complainant and accused acquainted to each other and

¶26

¶27

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶28

accused borrowed a sum of Rs.8,00,000/- to meet his financial difficulties. The said loan transaction was on 01.06.2019 with a promise to repay the same. Towards the repayment, accused issued two Cheques bearing No.393756 and 393757 dated 06.07.2019 for a sum of Rs.4 Lakhs each. Both the cheques on presentation dishonoured with an endorsement "payment stopped by the drawer". Callings of the legal notice was not complied by the accused. However, he sent an untenable reply, therefore, the complainant sought for action.

¶29

4. After completing the necessary formalities, the

¶30

presence of the accused was secured by the learned Trial Magistrate and plea was recorded. Accused pleaded not guilty. Therefore, trial was held.

¶31

In order to prove the case of the complainant, complainant got examined himself as PW1 and placed on record eight documents comprising of dishonoured

¶32

4 - NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶33

cheques, bank endorsement, legal notice, postal receipt, bank endorsemen, whatsapp messages.

¶34

Detailed cross-examination of PW1 did not yield

¶35

any positive material so as to disbelieve the case of the complainant not to dislodge the presumption available to the complainant under Section 139 of the Negotiable Instruments Act. Defence of the accused in the nutshell is that Exs.P1 and P2 are forcibly taken by the complainant and his wife by threatening the accused. In that regard, Exs.D1 and D2 photographs and D3 and D11 compact disks were placed on record. Complainant has denied the same in his cross-examination.

¶36

Thereafter, accused statement as is

¶37

contemplated under Section 313 of Cr.P.C. was recorded by the learned Magistrate. Accused has denied all the incriminatory materials and did not chose to place any written statement as is contemplated under Section 313(4) of Cr.P.C.

¶38

¶39

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶40

However, in order to rebut the evidence of the complainant and to establish the defence, accused got examined himself as DW1 and his wife as DW2. Accused placed on records eleven documents comprising of photographs, compact disks, letter, complaint and endorsement, notice and reply notice, postal receipt and copy of the complaint.

¶41

In Cross-examination of DW1, he specifically

¶42

admits that there is no action taken by the police on the complaint nor there is any endorsement on the complaint lodged by the police. He admits that he has not taken any action with regard to Cheque No.393755. He also admits that in Ex.D3, videograph, there is no visuals which are found whereby complainant and his wife is forcibly taking the cheque from the accused. So also, there is no visuals which could depict that accused was threatened to part away the cheques at Exs.P1 and P2.

¶43

¶44

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶45

Taking note these aspects of the matter, learned Trial Judge heard the parties in detail and convicted the accused for the offence punishable under Section 138 of the N.I. Act, interalia holding at paragraphs 21 to 26 as under:

¶46

"21. Further as per the defense of accused, complainant and his wife have trespassed his house on 19.06.2019 at about 10.30 p.m., and by threatening him they have taken signed blank cheques. But, immediately after 19.06.2019 he has not lodged any complaint before the Police against complainant or against S.S.Garments. If really, complainant has taken the cheques as contended by accused by force why he has not approached the Police on the next day itself. On perusal of Ex.D4 document, it shows complaint was lodged to the Rajarajeshwari Nagar Police Station. But, in the said Ex.D4 no date is mentioned and no endorsement is made by the Police authority for having received the said complaint. It shows the said Ex.D4 is not genuine document and it creates doubt regarding the defense of accused. Further, if the police authority have not taken any action on his complaint, accused could have immediately filed a private complaint before the Court for the alleged act of complainant and his wife and S.S.Garments. But, he has not taken any such immediate action. So, it crystal clear that the said defense of accused is not acceptable and believable one.

¶47

¶48

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶49

22. On perusal of Ex.D1 & 2 document, it appears somebody is writing on the cheque and accused is standing near by the said person, if really the cheque was forcibly taken by complainant and his wife why he has not objected while writing the said cheques and they have simply taken photographs as per Ex.D1 & 2 and no prudent man would keep silent if really his cheque was forcibly taken and some writings were made on the said cheques, definitely he would have objected it, while writing the cheques. The intention of accused taking of photographs itself clearly shows in order to create some evidence he has taken such a photographs. As discussed above, if really the complainant and his wife have taken the cheques forcibly, the immediate reaction of accused would be lodging of complaint to the Police or to the Court and pursuing the same till the end. Except some oral assertion accused has not placed any acceptable evidence to show that complainant and his wife have forcibly taken his signatures on cheques by threatening him.

¶50

23. Further, on perusal of Ex.D11(a) telephonic conversation between complainant and accused, it clearly establishes accused had borrowed loan and for due discharge of said loan he issued the cheques in dispute. If really, he has not borrowed any amount by the complainant why he has stated in his telephonic conversation that he is due of Rs.12,00,000/- that itself clearly establishes accused has borrowed amount from the complainant. Further, Ex.P8 WhatsApp message, which is admitted by accused himself establishes that accused voluntarily stated the complainant to present the

¶51

¶52

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶53

cheque bearing No.393758 and to encash the amount of Rs.2,00,000/- on 02.08.2019. While confronting this Ex.P8 attention of accused was drawn to the said message and he himself admitted his wife has sent the said message to the complainant and further he stated on the same day, the came and made galata etc., so the said evidence of accused and Ex.P8 document clearly establishes that there was some loan transaction between complainant and accused. Even telephonic conversation, which is marked under Ex.D11(a) also establishes there was some loan transaction between complainant and accused. So, the defense of accused that complainant and her wife have taken the cheques forcibly for the alleged loan of S.S.Garments etc., is not acceptable one.

¶54

24. Further, during the cross-examination accused

¶55

has admitted ZÉPï £ÀA§gï 393755 gÀ ¸ÀA¨sÀAzÀ ¦üAiÀiÁð¢ £À£Àß ªÉÄÃ¯É PÀæªÀÄ PÉÊUÉÆArzÀÝgÁ JAzÀgÉ E®è. ¸ÀzÀj ZÉPï £À£Àß §½ E®è. ¸ÀzÀj ¦üAiÀiÁð¢ §½ EzÉ. ªÁ¥À¸ï PÉÆr JAzÀÄ PÉÃ½¢ÝÃgÁ JAzÀgÉ E®è. "

¶56

On perusal of above said admission, it is crystal clear that accused himself has voluntarily issued the cheques for due discharge of loan. If really, he has not issued the said cheques and complainant and his wife have forcibly taken the cheques why he has not demanded for return of said cheque No.393755 from the complainant. Further, he has not taken any action for misusing said cheques against complainant and he clearly admitted in his evidence, in this regard. So, when such

¶57

¶58

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶59

being the case the contention of accused that cheques were taken forcibly by threatening him is not acceptable one. In fact, during the cross-examination accused has specifically admitted -

¶60

" ¤.r.3gÀ «ÃrAiÉÆÃ £ÉÆÃrzÉÝÃ£É. ¸ÀzÀj «ÃrAiÉÆÃzÀ°è £À£ÀUÉ

¶61

§®ªÀAvÀªÁV ºÉzÀj¹ ZÉPÀÄÌUÀ¼À£ÀÄß ¥ÀqÉzÀ ¸ÀA§AzsÀ E®è JAzÀgÉ ¸Àj. 2019 -06-

¶62

2019 2.2.1 0 3 vÉUÉzÀ ¸ÀA§AzsÀ zÁR¯É EzÉAiÀiÁ JAzÀgÉ E®è. D ¸ÀA§AzsÀ ªÉÆ¨ÉÊ¯ï ºÁUÀÆ ªÉÄªÉÆj PÁqÀð£ÀÄß £ÁåAiÀiÁ®AiÀÄPÉÌ ºÁdgÀÄ¥Àr¸À®Ä vÉÆAzÀgÉ EzÉAiÀiÁ JAzÀgÉ E®è. ¤.¦.1 ªÀÄvÀÄÛ 2 ZÉPÀÄÌUÀ¼À£ÀÄß ¦üAiÀiÁð¢UÉ PÉÆlÖ, ¸ÀA§AzsÀ, ¤.r.3gÀ°è E®è JAzÀgÉ ¸Àj."

¶63

25. This portion of evidence clearly establishes that there was no threatening of forcible taken of cheques by the complainant and his wife as contended by accused.

¶64

26. As discussed above, accused has not taken any serious action against complainant or against S.S.Garments for misusing his cheques for the loan of S.S.Garments. As stated above, no prudent man would keep quite, if really his cheques were forcibly taken for the loan of other person. So, the defense of accused is totally false and not acceptable one. On the other hand, the evidence placed by the accused clearly establishes in order to escape from liability and in order to cheat the complainant he has created documentary evidence like photographs and complaints before filing the complaint and also given 'Stop Payment' application to the bank. All

¶65

10 - NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶66

these acts of accused clearly establishes just to defraud the claim of complainant and to escape from the liability he has taken such a defense. There is no substance in the defense of accused and on overall considering the defense of the accused it clearly establishes the intention of the accused in cheating the complainant."

¶67

The learned Trial Magistrate imposed fine of Rs.10 Lakhs as against the cheque amount of Rs.8 Lakhs and ordered to pay Rs.9,90,000/- as compensation to the complainant and balance sum of Rs.10,000/- towards the defraying expense of the State.

¶68

Being aggrieved by the same, accused preferred an appeal before the District in Crl.A.No.919/2021. The learned Judge in the First Appellate Court after securing records, heard the parties in detail and by judgment dated 05.10.2023 dismissed the appeal filed by the accused.

¶69

Being further aggrieved by the same, accused has preferred the present revision petition.

¶70

11 -

¶71

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶72

Learned counsel Sri. H. Maltesh for the revision

¶73

petitioner reiterating the grounds urged in the revision petition contending that the material on record was sufficient enough to show that there is no legally recoverable debt covered under Exs.P1 and P2, in view of photographs marked at Exs.D1 and D2, Videograph recorded in Ex.D3 Compact Disk, coupled with the complaint lodged by the accused with the Rajarajeshwari Nagar Police Station and sought for allowing the revision petition.

¶74

Per contra, the learned counsel for the

¶75

respondent supports the impugned judgment.

¶76

Having heard the parties in detail, this Court

¶77

perused the material on record meticulously. On such perusal of the material on record, the following points are arise for consideration :

¶78

12 -

¶79

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶80

(i) Whether the revision petitioner establishes that the impugned judgment is suffering from patent factual error or error of jurisdiction whereby the impugned judgment can be termed as perverse?

¶81

(ii) Whether the sentence is excessive?

¶82

(iii) What order?

¶83

17. Regarding point No.1 :

¶84

In the case on hand, issuance of the cheque and signature of the accused found therein is not in dispute. On the contrary, the stand taken by the accused is that the Exs.P1 and P2 were forcibly snatched from the hands of the accused as is visible from Exs.D1 to D3. It is also

¶85

the case of the accused that the accused was threatened by the complainant and his wife while snatching Exs.P1 and P2.

¶86

To establish the same, apart from the oral

¶87

testimony of DW1, the documents that are placed on record by the accused is Exs.D1 to D3 and copy of the complaint said to have been lodged with the

¶88

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶89

13 -

¶90

Rajarajeshwari Nagar Police Station. Learned Trial Judge took into consideration these aspects of the matter and the aforesaid paragraphs in detail and has noted that the accused has failed to establish that Exs.P1 and P2 cheques were forcibly taken away by the complainant and his wife. Therefore, he recorded an order of conviction against the accused by raising the presumption as is available under Section 139 of the Negotiable Instruments Act.

¶91

Learned Judge in the First Appellate Court has

¶92

re-appreciated the material evidence on record.

¶93

This Court also took into consideration the

¶94

material on record in the light of the arguments put-forth on behalf of the accused. On such consideration of material on record, it is crystal clear that DW1 has clearly admitted in his cross-examination that in Ex.D3 the videograph, there are no visuals which would depict that the accused was either threatened, nor the complainant

¶95

14 -

¶96

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶97

and his wife forcibly snatching the signed cheque from the

¶98

hands of the accused.

¶99

These aspects of the matter has been rightly

¶100

appreciated by both the Courts and taking note of the scope of revisional jurisdiction, this Court does not find any ground whatsoever much less good grounds to interfere with the well-reasoned orders of both the Courts. Accordingly, the point No.1 is answered 'in the negative'.

¶101

22. Regarding point No.2 :

¶102

As against the cheque amount of Rs.8,00,000/-, learned Trial Magistrate has awarded a sum of Rs.10,00,000/- as the fine amount of which Rs.9,90,000/is ordered to be paid as fine amount to the complainant which requires no interference.

¶103

However, imposing the fine of Rs.10,000/towards defraying expense of the state needs to be set-

¶104

15 -

¶105

NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶106

aside in view of the fact that lis is privy to the parties that

¶107

no State Machine is involved.

¶108

Accordingly, point No.2 is answered 'partly in the affirmative'.

¶109

25. Regarding point No.3:

¶110

In view of the findings of this Court on Point Nos.1 and 2 as above, following Order is passed :

¶111

ORDER

¶112

(i) Criminal Revision Petition is allowed in part.

¶113

(ii) While maintaining the conviction of the accused for the offence punishable under Section 138 of Negotiable Instruments Act, fine amount

¶114

ordered by the Trial Magistrate confirmed by

¶115

16 - NC: 2024:KHC:45364 CRL.RP No. 109 of 2024

¶116

the First Appellate Court in a sum of

¶117

Rs.10,00,000/- is reduced to Rs.9,90,000/-.

¶118

(iii) Entire amount of Rs.9,90,000/- is ordered to be paid as compensation on or before 10.12.2024 failing which the revision petitioner shall undergo simple imprisonment for a period of six months.

¶119

(iv) A sum of Rs.10,000/towards defraying expenses of the State imposed by the learned Trial Magistrate confirmed by the First Appellate Court is hereby set-aside.

¶120

Office is hereby directed to return the TCR with copy of this Order forth with.

¶121

Sd/(V SRISHANANDA) JUDGE

¶122

SNC

¶123

List No.: 2 Sl No.: 27 CT: BHK

Sri B Rajesh Jain v. Sri K C Manjunatha

Case brief

What is this about?

What did the court decide?

Sri B Rajesh Jain v. Sri K C Manjunatha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Greemi Vs State by Sakharayapatna Police

Sri Balaji Builders and Developers Vs Sri.Mahesh A.B.

Smt D R Madalambike Vs Smt B S Sumangala Prakash

N Harinath Babu C v Vs Neethi v

N Venkatesh Vs B M Uttappa

Sri. Aswathaiah Vs Sri. Nagesh N