Partly allowed

Sri Jagadish G v. Smt. Kavitha Devaraj

Karnataka HC13 Jun 2024CRL.RP/277/2021

Case brief

AI extract

What is this about?

Accused convicted under Section 138 NI Act for cheque dishonoured for insufficiency of funds; conviction confirmed on appeal and in revision. Court held evidence insufficient to rebut Section 139 presumption, but set aside the impermissible Rs.10,000 defraying expenses, reducing fine to Rs.5,00,000 payable as compensation.

What did the court decide?

Conviction maintained; fine reduced from Rs.5,10,000 to Rs.5,00,000 as compensation to complainant; Rs.10,000 defraying expenses set aside; default simple imprisonment one year.

Sri Jagadish G Vs Smt. Kavitha Devaraj — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^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. 277 OF 2021 (397)

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BETWEEN:

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SRI JAGADISH G., S/O GURUBASAPPA, AGED ABOUT 54 YEARS, R/AT OLD NO.4-1, NEW NO.794, 1ST MAIN, 2ND CROSS, AISHWARYA ROAD, BANNERGHATTA ROAD, BENGALURU - 560 076.

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…PETITIONER

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(BY SRI. NAYEEM PASHA S., ADVOCATE)

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AND:

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

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SMT. KAVITHA DEVARAJ, W/O LATE DEVARAJ, AGED ABOUT 32 YEARS, R/AT NO.61/1E, MAHENDRA SINGH LAYOUT, CHUNDHAGHATTA MAIN ROAD, KONANAKUNTE POST, PUTTENAHALLI, BENGALURU - 560 062.

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…RESPONDENT

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(BY SRI.MALLIKARJUN D. K., LEARNED ADVOCATE FOR SRI.C.SHANKAR REDDY, LEARNED ADVCOATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE IMPUGNED ORDER DATED 07.01.2021 IN

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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CRL.A..NO.1064/2019, PASSED BY THE HONBLE LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU AND THEREBY ALSO SET ASIDE THE JUDGMENT AND SENTENCE DATED 09.04.2019, PASSED IN C.C.NO.126/2018, BY THE HONBLE XX A.C.M.M., AT BENGALURU AND ACQUIT THE 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.Naveen Pasha S., learned counsel for the revision petitioner and Sri.Mallikarjun D. K., learned counsel for Sri.C.Shankar Reddy, learned counsel for the respondent.

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The present revision petition is filed by the accused challenging the order of conviction and sentence passed in CC No.126/2018, who has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, which was confirmed by the learned Judge in the First Appellate Court in Criminal Appeal No.1064/2019.

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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Brief facts of the case which are utmost

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

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A cheque said to have been given by the accused towards the repayment of the debt that was borrowed by the accused, which on presentation came to be dishonored with an endorsement 'funds insufficient'. Thereafter, legal notice was issued by the complainant to the accused, which has been returned with an endorsement 'addressee refused'. Thereafter, complaint came to be filed by the complainant.

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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.

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In order to prove the case of the complainant, complainant got examined herself examined as P.W.1 and relied on five documents which were exhibited and marked as Exs.P.1 to Ex.P.5 comprising of cheque as Ex.P.1,

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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signature of the accused as Ex.P.1(a), bank endorsement as Ex.P.2, copy of the legal notice as Ex.P.3, postal receipt as Ex.P.4, unserved postal cover as Ex.P.5.

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On closure of the evidence of the complainant, accused stepped into the witness box and examined himself as D.W.1 and relied on three documents which were exhibited and marked as Exs.D.1 to Ex.D.3 comprising of notarized copy of the Aadhar card as Ex.D.1, notarized copy of the passport as Ex.D.2, original bank pass book as Ex.D.3.

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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.

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Subsequent there to, learned Trial Magistrate heard the parties in detail and vide judgment dated 09.04.2019 convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed fine in a sum of

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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Rs.5,10,000/-, out of which, sum of Rs.5,00,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.10,000/- is ordered to be paid as defraying expenses of the State.

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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.1064/2019.

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The learned Judge in the First Appellate Court after securing the records and hearing the arguments, vide judgment dated 07.01.2021, dismissed the appeal and confirmed the order of conviction and sentence.

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

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Reiterating the grounds urged in the revision petition, learned counsel for the petitioner strenuously contended that the cheque that has been issued in favour of the husband of the complainant, has been misused by

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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her, after the death of her husband and a false case has

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been foisted against the accused.

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He further pointed out that the number of Ex.P.1 is to be looked into and subsequent cheques issued by the accused has been honoured and to evidence the same, Ex.D.3 copy of the bank pass book has been produced and marked by the accused which shows that accused was never intending to dishonor the cheque, if it has been issued by him for the legally recoverable debt. But in the case on hand, it has been dishonored as it was not meant to be given for legally recoverable debt, which shows that cheque has been misused.

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He also pointed out that the financial capacity

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of the complainant is not established inasmuch as she has specifically stated that she received LIC bond amount and other financial aspects that will be subsequent to date of issuing of the cheque and therefore, cheque has been misused which has been ignored by both the Courts and sought for allowing the revision petition.

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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Per contra, learned counsel for the respondent

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supports the impugned judgments.

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Having heard the parties in detail, this Court perused the material on record, meticulously.

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On such perusal of the material on record, issuance of Ex.P.1 and signature found there in is not in dispute. According to the accused, the cheque was actually given to the husband of the complainant by name Devaraj, who died in the year 2015.

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In other words, it is the defence of the accused that the cheque that was given to the husband of the complainant has been misused by her, taking advantage of the death of her husband. If that is so, atleast after the accused put in appearance before the learned Trial Magistrate, some positive action should have been taken by him in prosecuting the complainant for misuse of the cheque or atleast issuing a legal notice narrating these aspects of the matter. No such positive action has been taken by the accused in this regard.

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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When once the cheque has reached the hands of the complainant and the signature there in is not disputed by the accused and the bank has returned the cheque with an endorsement 'funds insufficient' and legal notice having been refused by the accused, the presumption as is available to the complainant under Section 139 of the Negotiable Instruments Act comes into play and same has been invoked by learned Trial Magistrate in favour of the complainant in the trial.

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No doubt, the said presumption is a rebuttable presumption. In order to rebut the same, accused have stepped into the witness box and examined himself as D.W.1 and placed on record three documents. The oral and documentary evidence placed on record by the accused would only go to show that the complainant has tried to misuse the cheque and such evidence was not sufficient to rebut the presumption available to the complainant under this statue.

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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In view of the above factual aspects of the matter, the learned Trial Magistrate was justified in convicting the accused and passing the sentence as aforesaid.

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Learned Judge in the First Appellate Court on reappreciation of the material on record, did not find any good grounds to interfere with the order of the learned Trial Magistrate and accordingly, dismissed the appeal.

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This Court, that too, in the revisional jurisdiction, does not find any good grounds to interfere with the order of the conviction.

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So far as the sentence is concerned, learned Trial Magistrate has imposed sum of Rs.10,000/- to be paid as defraying expenses to the State which is impermissible, having regard to the fact that the lis is privy to the parties and no State machinery is involved. Accordingly, same needs to be set aside.

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Hence, the following:

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10 - NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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ORDER

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i. Criminal Revision Petition is allowed in

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part .

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ii. While maintaining the order of 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.5,10,000/is modified to sum of Rs.5,00,000/and sum of Rs.5,000/imposed as fine towards the State for defraying the expenses is hereby set aside.

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iii. Entire amount of Rs.5,00,000/- is to be paid as compensation to the complainant.

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

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NC: 2024:KHC:20932 CRL.RP No. 277 of 2021

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v. Time is granted for the accused to pay the

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balance fine amount till 30.06.2024.

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Sd/JUDGE

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KAV/List No.: 1 Sl No.: 32

Sri Jagadish G v. Smt. Kavitha Devaraj

Case brief

What is this about?

What did the court decide?

Sri Jagadish G v. Smt. Kavitha Devaraj

Case brief

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What did the court decide?

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