Partly allowed

Mr Dhanvanth. R v. M Gurudath Prabhu

Karnataka HC14 Jun 2024CRL.RP/254/2021

Case brief

AI extract

What is this about?

Revision petition against conviction under Section 138 NI Act for dishonoured cheques issued to repay a loan. Court upheld conviction and appellate confirmation, finding presumption unrebutted, but reduced total fine to compensation amount and set aside the fine payable to State.

What did the court decide?

Conviction maintained; fine reduced from Rs.1,17,000/- to Rs.1,12,000/- payable as compensation to complainant (default: 6 months simple imprisonment); Rs.5,000/- defraying-expense fine set aside.

Mr Dhanvanth. R Vs M Gurudath Prabhu — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:21184 CRL.RP No. 254 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 254 OF 2021

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BETWEEN:

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MR. DHANVANTH R., S/O K. RAGHUVEER, AGED ABOUT 51 YEARS, R/AT NISHMA HOUSE, MRPL ROAD, OPP. DEEPAK BAR, KANA, IDDYA, SURATHKAL, MANGALURU-575 014

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…PETITIONER

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(BY SRI. JEEVAN K., ADVOCATE)

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AND:

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M. GURUDATH PRABHU, Digitally signed by V S/O LATE DAMODHAR PRABHU, KRISHNA R/AT 'AHSRAYA' Location: High NEAR THEREE HOUSES, Court of Karnataka PACHANADY, BONDEL, MANGALURU-575 008

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…RESPONDENT

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(BY SRI. G.J. MOHAN MAIYA, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANGALORE, D.K., IN CRL.A.NO.49/2019 DATED 28.10.2020 AND ALSO THE

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NC: 2024:KHC:21184 CRL.RP No. 254 of 2021

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JUDGMENT OF CONVICTION DATED 11.03.2019 IN C.C.NO.2944/2016 PASSED BY THE LEARNED IV-JMFC, MANGALORE, D.K., AND TO DIRECT THE ACQUITTAL OF THE ACCUSED/PETITIONER.

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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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Heard Sri.Jeevan K, learned counsel for the

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petitioner.

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The present revision petition is filed challenging the order of conviction and sentence passed in CC No.2944/2016, whereby the accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to pay Rs.1,17,000/- out of which sum of Rs.1,12,000/- is ordered to be paid as compensation to the complainant and balance sum of Rs.5,000/- is to be paid towards the defraying expenses of the State which was confirmed in Criminal Appeal No.49/2019, has preferred this revision petition.

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3 - NC: 2024:KHC:21184 CRL.RP No. 254 of 2021

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3. Facts in brief are as under:

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3.1 A complaint was filed by the complainant

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contended that he lent a sum of Rs.1,20,000/- for financial assistance with an assurance to repay the same within a reasonable time. Towards the repayment of the debt, the accused has issued two cheques bearing No.345761 dated 23.03.2015 for a sum of Rs.92,000/- was drawn on Axis Bank, Mangaluru another cheque bearing No.345767 dated 20.02.2015 for a sum of Rs.20,000/- drawn on Axis Bank, Mangaluru, was issued by the accused in favour of the complainant, which on presentation came to be dishonored with an endorsement "Funds Insufficient". Thereafter, the legal notice came to be issued. There is no compliance, as such, the complainant was constrained to file the complaint to take action for the offence punishable under Section 138 of the Negotiable Instruments Act.

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Presence of the accused was secured before the

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Trial Court and the plea was recorded. Accused pleaded not guilty. Therefore, the trial was held.

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NC: 2024:KHC:21184 CRL.RP No. 254 of 2021

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In order to prove the case of the complainant, complainant got examined himself as P.W.1 and relied on 7 documentary evidence on record which are exhibited and marked as Exs.P.1 to Ex.P.7. As against the evidence placed on record by the complainant, accused got examined himself as D.W.1 and did not choose to place any documentary evidence on record.

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Thereafter, the learned Trial Judge recorded the accused statement as contemplated under Section 313 of Cr.P.C. wherein, the accused has denied all the incriminatory circumstances and arguments were heard. The Trial Judge noticed regard that the amount lent by the complainant to the accused through account pay cheques some amount in cash, raised the presumption in favour of the complainant under Section 139 of Negotiable Instrument Act, in view of the fact, Ex.P1 and Ex.P2 cheques were returned with endorsements funds insufficient there is no compliance for calling for the notice.

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NC: 2024:KHC:21184 CRL.RP No. 254 of 2021

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No doubt, the said presumption is a rebuttable presumption but the no contra evidence placed on record in the form of oral testimony of the accused, so as to rebut the said presumption. Accordingly, convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act is thus justified.

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Being aggrieved by the said order of conviction and sentence passed by the learned Trial Magistrate, accused filed an appeal before the First Appellate Court in Criminal Appeal No.49/2019, learned Judge of First Appellate Court after securing the records re-appreciated the material evidence on records, in light of the appeal grounds dismissed the appeal of the accused vide judgment dated 28.10.2020.

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

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Sri.Jeevan K, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, vehemently contended that both the Courts have failed to appreciate the material evidence on record,

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6 - NC: 2024:KHC:21184 CRL.RP No. 254 of 2021

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resulted in mis-carriage of justice sought for allowing the revision petition.

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Notice to respondent served and engaged service of learned counsel Shri. G.M.Mohan Maiya, who is absent today.

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

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On such perusal of the material on record, there is no dispute that the cheques were issued by the accused in favour of the complainant and signature of the accused found therein. According to the accused, the cheques were given as security and the same has been misused. No positive action has been taken by the accused about the alleging issue.

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Under the circumstance, the material on records is being appreciated by the Trial Magistrate to the effect that amount was lent through account pay cheques and cash, as raised presumption available to the complainant under Section 139 of Negotiable Instrument Act. It is

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7 - NC: 2024:KHC:21184 CRL.RP No. 254 of 2021

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notice that the there is no rebuttal evidence were placed on record. Accordingly, convicting the accused for the offence punishable under Section 138 of the Negotiable Instruments Act is thus justified.

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Learned Judge in the First Appellate Court after reappreciating the material on record, categorically recorded a finding that the conviction of the accused is just and proper. Therefore in this revision petition this Court does not find any good reasons to interference with impugned judgment.

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Having said thus, the Trial Magistrate has awarded sum of Rs.5,000/- as the fine amount to be paid to the State towards the defraying expenses which is impermissible in law, since, the lis is privy to the parties. To that extent, impugned judgment needs interference.

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Accordingly, the following:

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ORDER

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i. Revision petition is allowed in part.

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NC: 2024:KHC:21184 CRL.RP No. 254 of 2021

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ii. While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instrument Act, fine amount order by the Trial Magistrate of Rs.1,17,000/- is reduced to Rs.1,12,000/- to paid as compensation to the complainant, in default under go simple imprisonment for a period of Six months.

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iii. Awarding sum of Rs.5,000/- as fine amount towards defraying expenses of State is hereby set aside.

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ii. Office is directed to transmit the Trial Court Records and First Appellate Court Records forthwith along with copy of this Order.

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Sd/JUDGE

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ASN List No.: 1 Sl No.: 29

Mr Dhanvanth. R v. M Gurudath Prabhu

Case brief

What is this about?

What did the court decide?

Mr Dhanvanth. R v. M Gurudath Prabhu

Case brief

What is this about?

What did the court decide?

What the court decided

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