Partly allowed

Smt. Sangeetha C S v. Sri. Mohan Kumar N

Karnataka HC7 Jun 2024CRL.RP/448/2021

Case brief

AI extract

What is this about?

Revision against conviction under Section 138 NI Act where trial and appellate courts concurrently convicted the accused despite her plea that the complainant misused her stolen cheque. The High Court upheld the conviction, finding no positive action by the accused to counter alleged misuse, but reduced the fine by setting aside Rs.10,000/- imposed towards State defraying expenses.

What the court decided

AI extract

Smt. Sangeetha C S Vs Sri. Mohan Kumar N — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^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. 448 OF 2021

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BETWEEN:

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SMT. SANGEETHA C S W/O M NOORULLASHARIEF AGED ABOUT 37 YEARS, R/AT CHELUR VILLAGE GUBBI TALUK TUMKUR DISTRICT

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…PETITIONER

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(BY SRI. THYAGARAJA S.,ADVOCATE)

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AND:

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Digitally signed by LAKSHMI T Location: High Court of Karnataka

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SRI. MOHAN KUMAR N S/O NARAYANAPPA AGED ABOUT 37 YEARS, R/AT 133, 18TH B MAIN 7TH CROSS, 2ND PHASE, J P NAGAR, BENGALURU - 560 078

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…RESPONDENT (BY SRI. NANJUNDARADHYA B G., ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO A. SET ASIDE THE JUDGMENT AND CONVICTION DATED 11.03.2019 PASSED IN C.C.NO.13926/2017 ON THE FILE OF THE XVI ACMM, BANGALORE AND SET ASIDE THE ORDER DATED 07.03.2020 PASSED IN CRL./A.NO.838/2019 ON THE FILE OF THE LXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGLAORE (CCH-76) AND CONSEQUENTLY ACQUIT THE ACCUSED BY ALLOWING THE APPEAL. B. EXAMINE THE LEGALITY, PROPRIETY OF THE PROCEEDINGS AND IMPUGNED JUDGMENT.

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NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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

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ORDER

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Heard Sri Thyagaraja.S, learned counsel for the petitioner and Sri Nanjundaradhya B.G., for the

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respondent.

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Accused who has been convicted for the offence under Section 138 of the Negotiable Instruments Act, in C.C.No.13926/2017 by judgment dated 11.03.2019 and directed to pay fine of Rs.4,75,000/of which Rs.4,65,000/- is to be paid as compensation to the complainant and balance amount of Rs.10,000/- to be appropriated towards the defraying expenses of the State confirmed in Crl.A No.838/2019 has preferred this revision petition.

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Facts in brief which are utmost necessary for the disposal of the revision petition as under:

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A complaint came to be lodged under Section 200 Cr.P.C., by the respondent against the accused alleging the commission of offence under Section 138 of the

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3 - NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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Negotiable Instruments Act by contending that accused took financial assistance for a sum of Rs.4,50,000/- in the month of September 2016 with a promise to repay the same within a short period of time. Towards the repayment of the said financial assistance, accused parted away a cheque bearing No.069505 dated 14.11.2016 for a sum of Rs.4,50,000/- drawn on IDBI Bank, Tumkur Branch which on presentation came to be dishonoured with an ‘endorsement funds insufficient’.

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A legal notice was issued on 18.02.2017 through RPAD which was returned unserved with an endorsement ‘Address insufficient’. Thereafter, the complainant filed a complaint and sought for action against the accused.

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Learned trial Magistrate took cognizance of the offence alleged against the accused and secured the presence of the accused. Plea was recorded. Accused pleaded not guilty and therefore, trial was held.

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NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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In order to prove the case of the complainant,

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complainant got examined himself as PW.1 and placed on record seven documents which were exhibited and marked as Exs.C1 to C7.

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To rebut the evidence placed on record by the complainant, accused got herself examined as DW.1 and Sri Noorulla Sharief as DW.2. Accused statement as contemplated under Section 313 Cr.P.C., was recorded by the trial Magistrate wherein, accused has denied all the incriminatory circumstances. Thereafter, the trial Magistrate heard the parties and considering the oral and documentary evidence placed on record prove the presumption as is contemplated under Section 139 of the Negotiable Instruments Act and convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed the fine of Rs.4,75,000/- of which sum of Rs.4,65,000/- was ordered to be paid as compensation to the complainant.

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5 - NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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Being aggrieved by the said judgment of conviction and order of sentence passed by the trial Magistrate, accused preferred an appeal before the First Appellate Court in Crl.A No.838/2019.

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Learned Judge in the First Appellate Court secured the records and after hearing the parties in detail, by judgment dated 07.03.2020, dismiss the appeal filed by the accused and confirmed the judgment of conviction and order of sentence. Being further aggrieved by the same, accused is before this Court in this revision petition.

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Learned counsel for the petitioner vehemently contended that the oral evidence of DWs.1 and 2 placed on record would sufficiently establish that the complainant has stolen away the cheque from the custody of the accused and misused the same.

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He also pointed out that the legal notice is admittedly not served on the accused on the basis as is found from the endorsement on the registered cover that ‘address is insufficient’.

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6 - NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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As such, no offence was committed by the accused and the same has not been properly appreciated by both the Courts and sought for allowing the revision petition.

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Per contra, learned counsel for respondent not only supported the judgment of conviction passed by both the Courts but also contended that sentence imposed is on the lower side and sought for dismissal of the revision petition.

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Having heard the parties in detail, this Court perused the material on record meticulously. On such perusal of the material on record, it is seen that there is no dispute that the signature found in Ex.C1 – cheque is that of the accused. Bank memo marked at Ex.C2 shows

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that the cheque is dishonoured with an endorsement ‘Funds insufficient’.

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Copy of the legal notice and returned postal envelope shows that the legal notice has been issued, but

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NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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notice could not be served on the accused on the ground

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that address found on the cover is ‘address insufficient’.

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A photocopy of the sale agreement and photocopy of the sale deed were also marked before the Court as Exs.N1 and N2 which are to be construed as neutral documents.

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The said documents are marked only for the purpose of probabilising the theory that the cheque has been issued towards the legally recoverable debt. The cross-examination of the complainant did not yield any such material so as to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act.

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Further, DW.1 is the accused who deposed before the Court that cheque in question has been misused. In support of her case, she also examined one Noorulla Sharief as DW.2. The oral evidence of DWs.1 and 2 would go to show that there is misuse of the cheque in question by the complainant.

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NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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In that regard, it is pertinent to note that if there is any misuse as is alleged by the accused, some positive action should have been taken by the accused atleast after she put her appearance before the learned trial Magistrate. No such positive action has been taken by the accused like filing the police complaint or issue of legal notice etc.

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Under such circumstances, oral testimony of DWs.1 and 2 are held to be not sufficient enough to advance the theory of misuse of the cheque propounded by the accused and the same is also not sufficient enough to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act, the finding recorded by the trial Magistrate while passing the order of conviction.

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Learned Judge in the First Appellate Court reappreciated the material evidence on record in the light of the grounds urged in the appeal memorandum and found that none of the grounds urged in the appeal

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9 - NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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memorandum were sufficient enough to upset the sound and categorical finding recorded by the trial Magistrate and thus rightly dismissed the appeal.

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Therefore, this Court does not find any infirmity whatsoever in the judgments of the both the Courts so as to interfere in the revisional jurisdiction.

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Having said so, it is pertinent to note that sum of Rs.10,000/- is imposed by the trial Magistrate as the fine to be appropriated towards the defraying expenses of the State.

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Since the lis is privy to the parties and no State machinery is involved, imposing the fine of Rs.10,000/towards the State for the defraying expenses would not arise and to that extent both the judgments are suffering from legal infirmity which needs interference by this Court in this revision. Accordingly, the following:

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ORDER

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Revision petition allowed in part.

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10 -

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NC: 2024:KHC:19857 CRL.RP No. 448 of 2021

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While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, fine amount awarded by the trial Magistrate in a sum of Rs.4,75,000/- is reduced to Rs.4,65,000/-. Amount of Rs.10,000/- imposed by the trial Magistrate to be appropriated towards the defraying expenses of the State is hereby set aside.

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Rest of the sentence stands unaltered.

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SD/JUDGE

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List No.: 1 Sl No.: 39

Smt. Sangeetha C S v. Sri. Mohan Kumar N

Case brief

What is this about?

What the court decided

Smt. Sangeetha C S v. Sri. Mohan Kumar N

Case brief

What is this about?

What the court decided

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