Allowed

B S Krishnamurthy v. Moosa Kalimulla

Karnataka HC11 Jun 2024CRL.RP/144/2021

Case brief

AI extract

What is this about?

High Court in criminal revision, allowing it in part, maintained conviction for cheque dishonour but modified fine by deleting Rs. 5,000 State expenses, ruling it inappropriate in private disputes.

What did the court decide?

Conviction maintained; Rs. 5,000 State expense component of fine set aside; total fine reduced to Rs. 3,00,000 payable as compensation.

B S Krishnamurthy Vs Moosa Kalimulla — Cheque Dishonour | Karnataka HC (2024)

¶1

NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶2

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 11^TH DAY OF JUNE, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 144 OF 2021

¶7

BETWEEN:

¶8

B.S. KRISHNAMURTHY, S/O V.G. SATHYANARAYANA SETTRU, AGED ABOUT 70 YEARS, OCC.BUSINESS, R/O INFRONT OF SHARADAMMA RUDRAPPPA KALYANA MANTAPA, HOLALKERE ROAD, CHITRADURGA TOWN-577 501

¶9

…PETITIONER

¶10

(BY SRI. KANTHARAJAPPA M G., ADVOCATE)

¶11

AND:

¶12

Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

¶13

MOOSA KALIMULLA, S/O ABDUL GAFUR SAB, AGED ABOUT 62 YEARS, OCC. BUSINESS AND AGRICULTURIST, R/O OLD HOSPITAL, HOLALKERE TOWN-577 526

¶14

…RESPONDENT

¶15

(BY SRI. MAHAMMAD ANWAR, ADVOCATE FOR SRI. R. KOTHWAL, ADVOCATE)

¶16

THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED 1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE,

¶17

2 - NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶18

CHITRADURGA IN CRL.A.NO.38/2020 DATED 02.01.2021 AND THE ORDER PASSED IN C.C.NO.399/2018 DATED 28.02.2020 BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, HOLALKERE AND ACQUIT THE PETITIONER FROM THE CHARGES LEVELED AGAINST HIM, BY ALLOWING THIS CRL.RP.

¶19

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

¶20

ORDER

¶21

Parties are present before the Court. They reported that settlement failed. As such, the matter is heard on merits by consent of the parties.

¶22

The present revision petition is filed by the accused challenging the order of conviction and sentence passed in CC No.399/2018, who has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act which was confirmed by learned Judge in the First Appellate Court in Criminal Appeal No.38/2020.

¶23

¶24

NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶25

Brief facts of the case which are utmost

¶26

necessary for disposal of the present revision petition are as under:

¶27

3.1. A complaint came to be filed under Section 200 of Cr.P.C. by the complainant against the accused contending that accused is acquainted with the complainant for last thirty years and in that relationship, accused approached the complainant for financial help in a sum of Rs.3,00,000/- for domestic and business purposes on 30.01.2013. The said financial assistance was agreed

¶28

to be repaid within a period of two months but accused failed to repay the same and ultimately, issued a cheque on 30.03.2013 for a sum of Rs.3,00,000/- drawn on Merchant Souharda Sahakari Bank Ltd., Chitradurga Brnach, which is a posted dated cheque. Thereafter, on 03.04.2013 cheque came to be dishonored with an endorsement 'funds insufficient'.

¶29

3.2. In that regard, legal notice was issued and said

¶30

legal notice though served neither complied nor replied to

¶31

¶32

NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶33

the callings of the notice and resulted in complainant taking action against the accused.

¶34

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

¶35

In order to prove the case of the complainant, complainant got examined himself as P.W.1 and one witness by name A. V. Gurunatha Gupta as P.W.2 and relied on 10 documents which were exhibited and marked as Exs.P.1 to Ex.P.10 comprising of original cheque as Ex.P.1, signature of the accused as Ex.P.1(a), pay-in-slip as Ex.P.2, endorsement issued by Canara Bank, CTA as Exs.P.3 and 5, endorsement issued by the Merchants Souharda Sahakara Bank Niyamitha, CTA as Ex.P.4, certified copy of the legal notice as Ex.P.6, two postal receipts as Exs.P.7 and 8, postal acknowledgement as Ex.P.9, certified copy of the order sheet in PC No.67/2013 as Ex.P.10.

¶36

¶37

NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶38

As against the evidence placed on record by the complainant, accused got examined himself as D.W.1 and one more witness - Rajeevalochana as D.W.2 and relied on five documents which were exhibited and marked as Exs.D.1 to Ex.D.5 comprising of certified copy of the account opening form as Ex.D.1, cheque issuance register extract as Ex.D.2, relevant portion of Ex.D.2 as Ex.D.2(a), cheque issuance register extract as Ex.D.3, relevant portion of Ex.D.3 as Ex.D.3(a), certified copy of account opening form of account No.121 as Ex.D.4 and certified copy of cheque issuance register extract of account No.121 of the Merchants Souharda Sahakara Bank

¶39

Niyamitha, CTA as Ex.D.5.

¶40

Thereafter, the learned Trial Magistrate recorded the accused's statement as is contemplated under Section 313 of Cr.P.C. wherein, the accused has denied all the incriminatory circumstances that were put to him which were available in the case of the complainant.

¶41

¶42

NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶43

Subsequent there to, learned Trial Magistrate heard the parties in detail and convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed fine in a sum of Rs.3,05,000/-, out of which sum of Rs.3,00,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.5,000/- is ordered to be paid as defraying expenses of the State.

¶44

Being aggrieved by the said order of conviction and sentence passed by the learned Trial Magistrate, the accused preferred an appeal before the First Appellate Court in Criminal Appeal No.38/2020.

¶45

The learned Judge in the First Appellate Court after securing the records and hearing the arguments, vide judgment dated 02.01.2021, dismissed the appeal and confirmed the order of conviction and sentence.

¶46

Being further aggrieved by the same, the accused is before this Court.

¶47

7 - NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶48

Reiterating the grounds urged in the revision petition, learned counsel for the petitioner vehemently contended that material evidence placed on record would go to show that the cheque in question was misused by the complainant and same is established by placing cheque issuance register vide Exs.D.2 and 3 and account opening form which clearly shows that cheque in question was not issued as is contended by the complainant and therefore, accused needs to be acquitted.

¶49

He also pointed out that there was no transaction at all between the complainant and the accused as is contended by him and the cheque that has been issued by the complainant, at an earlier point of time when they were good friends, has been misused by the complainant and therefore, accused needs to be acquitted.

¶50

Per contra, learned counsel for the respondent supports the impugned judgments.

¶51

¶52

NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶53

In the light of the arguments that has been put forth on behalf of the petitioner, this Court perused the material on record meticulously.

¶54

On such perusal of the material on record, it is crystal clear that the cheque vide Ex.P.1 bears the signature of the accused. Cheque has been dishonored with an endorsement that 'funds are insufficient'.

¶55

As such, the initial burden cast on the complainant in order to raise the presumption as is contemplated under Section 139 of the Negotiable Instruments Act in favour of the complainant has been discharged by the complainant with his oral testimony of documentary evidence.

¶56

The defence of the accused is that the cheque was given earlier and the same has been misused. To establish the same, Exs.D.2 and Ex.D.3 has been produced before the Court.

¶57

¶58

NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶59

No doubt, on perusal of Exs.D.2 and Ex.D.3 there appears to be a fact that the cheque has issued by the Bank to the accused much earlier to the transaction as is contended by the complainant in this complaint. But, why the accused was keeping such an old cheque in his custody is not explained by him.

¶60

Oral evidence of Nagaraja and Rajeevalochana did not advance the case of the accused in establishing that there was misuse of the cheque.

¶61

If the accused is of the definite opinion, atleast

¶62

when he appeared before the learned Magistrate with the help of legal assistance that the cheque has been misused,

¶63

as an normal prudent person would have taken positive action against the complainant by filing a police complaint or atleast issuing a legal notice about the alleged misuse.

¶64

No such positive action has been taken by the accused against the complainant till today. Therefore, mere say of the accused that the cheque has been

¶65

10 - NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶66

misused has been rightly discounted by the learned Trial Magistrate by convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act which has been rightly reappreciated by learned Judge in the First Appellate Court.

¶67

Therefore, in the absence of any material evidence on record by the accused to establish that there was misuse of the cheque, this Court is of the considered opinion that the conviction order passed by both the Courts, needs no interference that too in the limited scope of the revisional jurisdiction,

¶68

Now coming to the question of sentence. As against the cheque amount of Rs.3,00,000/-, learned Trial Magistrate has imposed fine in a sum of Rs.3,05,000/without there being any amount towards the further compensation to the complainant. Out of which, sum of Rs.3,00,000/- is ordered to be paid as compensation to the complainant and balance sum of Rs.5,000/- to be paid as defraying expenses of the State.

¶69

11 -

¶70

NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶71

Since, the lis is privy to the parties, awarding sum of Rs.5,000/- towards the defraying expenses of the State needs interference as no State machinery is involved.

¶72

26. Accordingly, the following:

¶73

ORDER

¶74

i. Criminal Revision Petition is allowed in part .

¶75

ii. While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, the fine amount ordered by the learned Trial Magistrate confirmed by the First Appellate Court in a sum of Rs.3,05,000/- is modified to the sum of Rs.3,00,000/and sum of Rs.5,000/imposed as fine towards the State is hereby set aside.

¶76

12 -

¶77

NC: 2024:KHC:20386 CRL.RP No. 144 of 2021

¶78

iii. Entire amount of Rs.3,00,000/- is to be paid as compensation to the complainant.

¶79

iv. In default of payment fine amount, accused shall undergo simple imprisonment for a period of one year.

¶80

Sd/JUDGE

¶81

KAV List No.: 1 Sl No.: 58

B S Krishnamurthy v. Moosa Kalimulla

Case brief

What is this about?

What did the court decide?

B S Krishnamurthy v. Moosa Kalimulla

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

Sri. Abdul Rasheed M Vs Sri. Raghu. R

M C Vijayakumar Vs P Nanjundappa

Smt Meenakshi Vs G N Vyramudi

Sri Ramanathan S Vs Sri Olesha

Sri M v Krishna Vs Manchegowda

Sri Ashwin Vs Late Sri Prabhakar H