Partly allowed

Sri K Prakash v. Sri v Ramaiah

Karnataka HC21 Jun 2024CRL.RP/307/2021

Case brief

AI extract

What is this about?

High Court allowed revision petition in part, upholding conviction for cheque dishonour but set aside the portion of fine allocated for defraying state expenses. Court held that in cheque disputes involving private parties, no state machinery is involved.

What did the court decide?

Fine modified to Rs. 4,80,000 as compensation; Rs. 3,000 state expenses fine set aside. Conviction maintained.

Sri K Prakash Vs Sri v Ramaiah — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:22442 CRL.RP No. 307 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 307 OF 2021

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BETWEEN:

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SRI. K. PRAKASH, AGED ABOUT 48 YEARS, S/O KRISHNAPPA, RESIDING AT NO.21, 1ST "B" MAIN ROAD, G.K.V.K POST, CHIKKABOMMASANDRA, BENGALURU - 560 065.

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…PETITIONER

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(BY SRI. PRAKASHA M, ADVOCATE)

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AND:

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Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA

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SRI. V. RAMAIAH, AGED ABOUT 58 YEARS, S/O VEERANNA, R/O VISHWANATHAPURA VILLAGE, KUNDANA HOBLI, DEVANAHALLI TALUK - 562 110, BENGALURU RURAL DIST.

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…RESPONDENT

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(BY SRI. M.N. UMESH, ADVOCATE FOR SRI. S.D.N. PRASAD, 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 IMPUGNED CONVICTION ORDER DATED 06.03.2019 IN C.C.NO.264/2010 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, DEVANAHALLI AND THE SAME WAS CONFIRMED BY THE V ADDITIONAL DISTRICT AND

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NC: 2024:KHC:22442 CRL.RP No. 307 of 2021

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SESSIONS JUDGE, DEVANAHALLI IN CRL.A.NO.15004/2019 BY ITS JUDGMENT DATED 25.11.2020.

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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.Prakash M., learned counsel for the revision petitioner and Sri.M.N.Umesh, learned counsel for Sri.S.D.Narasimha Prasad, learned counsel for the respondent.

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The present revision petition is filed by the revision petitioner challenging the order of conviction and sentence passed in CC No.264/2010 dated 06.03.2019 which was confirmed in Criminal Appeal No.15004/2019 dated 25.11.2020 for the offence punishable under Section 138 of the Negotiable Instruments Act.

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Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:

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3.1. A complaint came to be lodged with the

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jurisdictional Magistrate under Section 200 of Cr.P.C. by

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NC: 2024:KHC:22442 CRL.RP No. 307 of 2021

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the complainant against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act by contending that to complete the construction of the unfinished house, accused approached the complainant for financial assistance and borrowed sum of Rs.4,30,000/- on 10.04.2009 with a promise to repay the same within four months. Towards the repayment, a cheque bearing No.310107 for a sum of Rs.4,00,000/drawn on UTI Bank Ltd., New Town Yelahanka, was parted and another cheque bearing No.014208 for a sum of Rs.30,000/- drawn on Union Bank of India, Yelahanka was issued. Both the cheques on presentation came to be returned with an endorsement 'account closed' and 'funds insufficient' respectively. Thereafter, legal notice was issued. There was no reply nor compliance to the callings of the notice. Therefore, complainant sought for action against the accused.

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The learned Trial Magistrate after taking cognizance, secured the presence of the accused and

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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 himself as P.W.1 and one more witness by name Dinesh was examined as P.W.2 and relied on 12 documentary evidence on record which were exhibited and marked as Exs.P.1 to Ex.P.12 comprising of cheques as Exs.P.1 and P.2., signature of the accused as Exs.P.1(a) and Ex.P.2(a), bank endorsements as Exs.P.3 and 4, legal notice as Ex.P.5, postal receipts as Exs.P.6, 7 and 9, postal acknowledgement as Ex.P.8, receipt as Ex.P.10, returned postal cover as Ex.P.11, legal notice as Ex.P.12.

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As against the evidence placed on record by the complainant, accused got examined himself as D.W.1 and one witness by name Prakash was examined as D.W.2 and marked invitation card of house warming ceremony as Ex.D.1 to establish that there was no necessity for the

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accused to borrow the said loan as is contended in the complaint in view of Ex.D.1.

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Thereafter, the learned Trial Magistrate

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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 Judge heard the arguments of the parties in detail and after considering the oral and documentary evidence placed on record, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed fine in a sum of Rs.4,83,000/-, out of which sum of Rs.4,80,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.3,000/- 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

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NC: 2024:KHC:22442 CRL.RP No. 307 of 2021

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accused preferred an appeal before the First Appellate Court in Criminal Appeal No.15004/2018.

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The learned Judge in the First Appellate Court after securing the records and hearing the arguments, vide judgment dated 25.11.2020, 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 revision petitioner vehemently contended that both the Courts have not properly appreciated the material evidence on record resulting in miscarriage of justice and thus, sought for allowing the revision petition.

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He further pointed out that Ex.D.1 clearly shows that as on the date of alleged loan, the building was already complete and therefore, there was no necessity for the accused to borrow the amount as is contended in the

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NC: 2024:KHC:22442 CRL.RP No. 307 of 2021

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complaint and therefore, there was sufficient rebuttal evidence placed on record which was ignored by both the Courts and thus, sought for allowing the revision petition.

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Per contra, learned counsel for the respondent 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, it is crystal clear that the cheques which are in question are issued by the complainant and signature found there in is that of the complainant. No doubt, the cheques drawn on UTI Bank, came to be dishonored with an endorsement 'account closed' but in respect of the cheque drawn in a sum of Rs.30,000/- on Union Bank of India came to be dishonored with an endorsement 'funds insufficient'.

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When once the cheques are issued by the accused and when once the cheques are parted away by the accused and it has reached the hands of the

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complainant and signature found therein is that of the accused, presumption as is available to the complainant under Section 139 of the Negotiable Instruments Act can be invoked by the learned Trial Magistrate. However, the said presumption is a rebuttable presumption. But to rebut the said presumption accused has examined himself as D.W.1 and one witness by name Prakash as D.W.2 and marked invitation card of house warming ceremony as Ex.D.1.

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No doubt, from the perusal of Ex.D.1, it is crystal clear that the date of loan is subsequent to the date of house warming ceremony that has been mentioned in Ex.D.1.

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However, mere marking the invitation card at Ex.D.1, would not be sufficient enough to establish that the construction of the house was completed in toto. Any way, it is for the accused to say why he parted away Ex.P.1 and Ex.P.2, if there was no transaction at all between him and the complainant.

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NC: 2024:KHC:22442 CRL.RP No. 307 of 2021

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If it is a case of misuse of cheques, some positive action should have taken by the accused as a normal prudent person. Even that is not forthcoming on record.

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Under such circumstances, raising the

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presumption available under Section 139 of the Negotiable Instruments Act in favour of the complainant is just and proper. The same is properly appreciated by learned Judge in the First Appellate Court.

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Accordingly, this Court, that too, in the revisional jurisdiction cannot interfere with the factual aspects of the matter and does not find any legal infirmity in recording order of conviction by both the Courts.

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Having said thus, both the Courts have misdirected themselves in imposing sum of Rs.3,000/- to be paid as defraying expenses of the State which is impermissible having regard to the fact that lis is privy to the parties and no State machinery is involved.

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As such, to that extent, this Court needs to interfere in the revisional jurisdiction.

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25. Accordingly, the following:

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ORDER

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i. Criminal Revision Petition is allowed in part .

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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.4,83,000/- is modified to the sum of Rs.4,80,000/- and sum of Rs.3,000/- imposed as fine towards the State is hereby set aside.

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iii. Entire amount of Rs.4,80,000/- is to be paid as compensation to the complainant.

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NC: 2024:KHC:22442 CRL.RP No. 307 of 2021

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

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v. Accused is granted time till 10.07.2024 to pay the balance fine amount.

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Sd/JUDGE

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KAV List No.: 1 Sl No.: 20 CT: BHK

Sri K Prakash v. Sri v Ramaiah

Case brief

What is this about?

What did the court decide?

Sri K Prakash v. Sri v Ramaiah

Case brief

What is this about?

What did the court decide?

What the court decided

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