Partly allowed

Sri. Abdul Rasheed M v. Sri. Raghu. R

Karnataka HC10 Jun 2024CRL.RP/309/2021

Case brief

AI extract

What is this about?

High Court partly allowed revision in cheque bounce case. Conviction maintained as no positive rebuttal evidence shown. Order directing Rs. 5,000 payment to State expenses for defraying costs quashed as impermissible in private litigation.

What did the court decide?

Fine reduced to compensation amount; order directing Rs. 5,000 to State expenses set aside; time granted to pay balance.

Sri. Abdul Rasheed M Vs Sri. Raghu. R — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:20184 CRL.RP No. 309 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^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. 309 OF 2021

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BETWEEN:

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SRI. ABDUL RASHEED M, S/O LATE MASTAN SAB, AGED ABOUT 61 YEARS, ASST. AGRICULTURAL OFFICER, AGRICULTURE OFFICE, HOSADURGA, HOSADURGA TALUK, CHITRADURGA DISTRICT - 577 527.

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…PETITIONER

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(BY SRI. LOKESH K, ADVOCATE FOR SRI. VIJAYA KUMAR K, 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. RAGHU. R, S/O KALAIAH, AGED ABOUT 40 YEARS, R/O TARASU ROAD, BALAGADI, KOPPA TOWN, KOPPA TALUK, CHIKKAMAGALURU DISTRICT - 577 126.

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…RESPONDENT

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(BY SRI. CHETHAN KUMAR B.A, 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 AND ORDER DATED 18.03.2020 PASSED IN CRL.A.NO.241/2019 AND ALSO THE JUDGMENT AND ORDER PASSED IN C.C.NO.74/2016 PASSED BY THE CIVIL JUDGE AND JMFC, KOPPA DATED 15.10.2019 AND ALLOW THE REVISION PETITION, BY ACQUITTING THE PETITIONER FOR THE OFFENCE U/S 138 OF N.I ACT.

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NC: 2024:KHC:20184 CRL.RP No. 309 of 2021

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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.Vijaya Kumar K., learned counsel for the

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petitioner. None present on behalf of the respondent.

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The present revision petition is filed by the

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accused challenging the order of conviction and sentence passed in CC No.74/2016, who has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act which was confirmed in Criminal Appeal No.241/2019 vide judgment dated 18.03.2020.

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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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3.1. A complaint came to be filed by the respondent under Section 200 of Cr.P.C. alleging the offence committed by the accused for the offence punishable under Section 138 of the Negotiable Instruments Act by contending that accused has borrowed Rs.3,50,000/- as a

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NC: 2024:KHC:20184 CRL.RP No. 309 of 2021

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hand loan on 19.07.2015 with a assurance to repay the same within 15 days.

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3.2. Despite repeated demands, accused failed to repay the amount and ultimately, issued a cheque bearing No.052531 dated 25.08.2015 in a sum of Rs.3,50,000/-, drawn on S.B.M. Koppa Branch. Same on representation came to be dishonoured with an endorsement 'funds insufficient'. Thereafter, legal notice was issued and same is deemed to have been served as the notice returned with an endorsement 'not claimed'. There was no compliance nor reply to the notice. Therefore, complaint was filed under Section 138 of the Negotiable Instruments Act as per the complaint averments.

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The learned Magistrate took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act and secured the presence of the accused. Plea was recorded and accused pleaded not guilty. Therefore, the trial was held.

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NC: 2024:KHC:20184 CRL.RP No. 309 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 06 documentary evidence which were exhibited and marked as Exs.P.1 to Ex.P.6 comprising of original cheque for a sum of Rs.3,50,000/- as Ex.P.1, signature of the accused as Ex.P.1(a), Bank endorsement as Ex.P.2, Court foil dated 20.11.2015 as Ex.P.3, copy of the legal notice as Ex.P.4, postal receipt as Ex.P.5, returned legal notice as Ex.P.6 and RPAD cover as Ex.P.6(a).

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To rebut the evidence placed on record by the complainant, accused got examined himself as D.W.1 and did not place any documentary evidence on record.

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Thereafter, the accused's statement as contemplated under Section 313 of Cr.P.C. was recorded and accused denied all the incriminatory materials.

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Thereafter, learned Magistrate heard the parties

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and on consideration of the material evidence placed on record, convicted the accused for the offence punishable

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NC: 2024:KHC:20184 CRL.RP No. 309 of 2021

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under Section 138 of the Negotiable Instruments Act and imposed fine of Rs.4,00,000/-, out of which Rs.3,95,000/was ordered to be paid as compensation to the complainant and balance sum of Rs.5,000/- is to be remitted to the State for defraying the expenses.

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Being aggrieved by the same, the accused preferred an appeal before the First Appellate Court in Criminal Appeal No.241/2019.

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Learned Judge in the First Appellate Court after securing the records and hearing the parties in detail, reappreciated the material evidence on record and did not find any infirmity in the judgment of the trial Court and therefore, confirmed the judgment of the trial Court and sentence by dismissing the appeal vide order dated 18.03.2020.

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

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6 - NC: 2024:KHC:20184 CRL.RP No. 309 of 2021

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Sri.Vijaya Kumar K., learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused and imposed the sentence. Thus, sought for allowing the revision petition.

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He also pointed out that the cheque that has been issued by the accused in some other context has been misused by the complainant and said oral evidence of the accused has not been properly appreciated by the Trial Court and has sought for reduction of the sentence.

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14. None present on behalf of the respondent.

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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, issuance of the cheque and signature found there in is not

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7 - NC: 2024:KHC:20184 CRL.RP No. 309 of 2021

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in dispute. The only defence of the accused is that the cheque that has been issued in some other context has been misused by the complainant. To establish the same, accused got himself examined as D.W.1 and placed oral evidence on record.

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The oral evidence of the accused has been considered by learned Trial Magistrate in detail and so also, learned Judge in the First Appellate Court and noted that there is no positive action on the part of the accused so as to hold that the rebuttable evidence under Section 139 of the Negotiable Instruments Act has not been placed by the accused as is held in Rangappa V/s Sri. Mohan reported in AIR 2010 SC 1898 and K.N.Beena V/s. Muniyappan reported in AIR 2001 SC 2895 .

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In the absence of any positive action, atleast after the appearance of the accused before the learned Trial Magistrate in filing the criminal complaint or at least issuing a legal notice, this Court is of the considered opinion that the finding recorded by the learned Trial

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8 - NC: 2024:KHC:20184 CRL.RP No. 309 of 2021

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Magistrate confirmed by the First Appellate Court that accused is guilty of the offence punishable under Section 138 of the Negotiable Instruments Act does not call for interference.

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Insofar as sentence is concerned, admittedly,

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cheque is in a sum of Rs.3,50,000/- and learned Trial Magistrate has imposed fine in a sum of Rs.4,00,000/- out of which Rs.3,95,000/- is to be paid as compensation to the complainant. Balance sum of Rs.5,000/- was ordered to be appropriated towards the expenses of the State towards the defraying expenses of the State which cannot be countenanced in law inasmuch as lis is privy to the parties. As such, same needs to be set aside.

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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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ii. While maintaining the order of conviction of the accused for the offence punishable

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9 - NC: 2024:KHC:20184 CRL.RP No. 309 of 2021

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under Section 138 of the Negotiable Instruments Act, awarding fine in a sum of Rs.4,00,000/- is reduced to the extent of Rs.3,95,000/and imposing sum of Rs.5,000/- as fine towards the State is hereby set aside.

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iii. Entire amount of Rs.3,95,000/- is to be paid as compensation to the complainant. Failing which, the accused shall undergo imprisonment for a period of six months.

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iv. Office is directed to return the Trial Court Records with copy of this order forthwith.

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v. Time is granted to pay the balance fine amount till 30.06.2024.

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KAV List No.: 1 Sl No.: 46 CT: BHK

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Sd/JUDGE

Sri. Abdul Rasheed M v. Sri. Raghu. R

Case brief

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Sri. Abdul Rasheed M v. Sri. Raghu. R

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