Partly allowed

Sri Srikanthamurthy a H v. Sri Gururaj M

Karnataka HC5 Jun 2024CRL.RP/469/2021

Case brief

AI extract

What is this about?

High Court allowed criminal revision petition in part against conviction under Section 138 of N.I. Act. Court upheld conviction and compensation but set aside confiscation of fine to State, noting illegitimate State participation due to personal civil dispute between parties.

What did the court decide?

Maintenance of compensation of Rs. 1,05,000/-; setting aside order directing Rs. 5,000/- to be confiscated to the State.

Sri Srikanthamurthy a H Vs Sri Gururaj M — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:19281 CRL.RP No. 469 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^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. 469 OF 2021

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BETWEEN:

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SRI. SRIKANTHAMURTHY A. H, S/O HANUMAIAH, AGED ABOUT 47 YEARS, RESIDING AT NO.111, MIG KHB COLONY, CHAMARAJANAGAR TOWN-571 313. REPRESENTED THROUGH THE KARNATAKA, STATE LEGAL SERVICE AUTHORITY.

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…PETITIONER

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(BY SRI. ANKITH JAIN, ADVOCATE FOR SRI. GAUTAM SHREEDHAR BHARADWAJ, ADVOCATE) AND:

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Digitally signed by D HEMA Location: HIGH COURT OF KARNATAKA

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SRI. GURURAJ M S/O D MALLAIAH, AGED ABOUT 63 YEARS, RESIDING AT NO.2295, 12^TH MAIN ROAD, VIJAYANAGAR II STAGE, MYSURU-570 022.

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…RESPONDENT (BY SRI. PRITHVI KIRAN SETTY, ADVOCATE)

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THIS CRL.RP FILED UNDER SECTION 397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT DATED 13.03.2020 PASSED BY THE I ADDITIONAL SESSIONS JUDGE, MYSURU IN CRL.A.NO.292/2019 CONFIRMING THE JUDGMENT DATED 23.08.2019 PASSED BY THE I ADDITIONAL I CIVIL JUDGE AND

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NC: 2024:KHC:19281 CRL.RP No. 469 of 2021

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J.M.F.C., MYSURU IN C.C.NO.790/2016 BY CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT AND DIRECTING THE PETITIONER TO PAY A FINE OF RS.1,10,600.

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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. Ankith Jain, learned counsel for the

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petitioner.

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The present revision petition is filed by the accused, who has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the N.I. Act) in C.C.No.790/2016 confirmed by the I Additional Session Judge, Mysuru in Crl.A.No.292/2019.

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

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The complaint came to be lodged under Section 200 Cr.P.C. contending that the complainant has rented out his residential house bearing No.111, MIG, Housing

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NC: 2024:KHC:19281 CRL.RP No. 469 of 2021

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Board Colony, Chamarajanagar, to the accused. Later on, two cheques cheques were tendered in a sum of 62,000/and 23,600/- towards arrears of rent. Both cheques on presentation returned with an endorsement ‘Insufficient funds’. Legal notice was issued to the accused. The accused neither complied the callings of notice nor replied the same. Therefore, the complainant sought for action against the accused.

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The learned trial judge took cognizance of the

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offence and then secured the presence of the accused. Plea was recorded. Accused pleaded not guilty.

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As such trial was held. In order to prove the

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case of the complainant, complainant got examined himself as PW.1 and placed on record 6 documentary evidence, which are exhibited and marked as Exs.P1 to P6 comprising of dishonored cheques, copy of the legal notice, postal receipt and postal acknowledgment.

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As against the evidence placed on record by

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the complainant, the accused examined himself as DW.1 and placed on record 7 documentary evidence, which are exhibited and marked as Exs.D1 to D7, comprising of certified copy of plaint in O.S.No.116/2018, certified copy of the notice, advance payment receipt and advance sale receipt, complaint given by the accused to the Manager – SBI of Mysore, Copy of the rent agreement and acknowledgment of police.

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The accused statement as contemplated under

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Section 313 of Cr.P.C was also recorded by the leaned trial Magistrate, wherein the accused has denied all the incriminatory circumstances. Thereafter, the trial Judge heard the parties in detail and by considering the oral and documentary evidence on record, convicted the accused for the offence punishable under Section 138 of the N.I. Act. While so convicting the accused, the learned trial Magistrate has drawn the presumption available under Section 139 of the N.I. Act, noting the fact that the

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complainant has discharged the initial burden and there is no dispute that the signature found in Exs.P1 and P2 are that of the accused. The trial Magistrate also opined that the defence evidence placed on record was not sufficient enough to rebut the presumption and theory of misuse of cheques at Exs.P1 and P2 is not established.

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Being aggrieved by the same, the accused preferred an appeal before the District Court in Crl.A.No.292/2019. The learned Judge in the First Appellate Court after securing the records and hearing the parties in detail dismissed the appeal filed by the accused. Thereafter, the accused is before this Court.

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Sri. Ankith Jain, learned counsel for the petitioner reiterating the grounds urged in the petition contended that in view of the agreement to sell entered into between the parties, there is no question of payment of any rent by the accused in favour of the complainant and therefore very theory of cheques being issued towards

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arrears of rent cannot be believed and the said aspect of the matter has not been properly considered by both the Courts and sought for allowing the revision petition.

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He also pointed out that the copy of the plaint in O.S.No.116/2018 marked as Ex.D1 clearly shows that there is a suit for specific performance and the said aspect of the matter is totally ignored by both the Courts and sought for allowing the revision petition.

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The learned counsel for respondent has engaged the services of learned counsel Sri. Prithvi Kiran Shetty, is present before the Court and supports the impugned judgments.

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In the light of the arguments put forth on behalf of the revision petitioner, this Court perused the records including the trial Court records.

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NC: 2024:KHC:19281 CRL.RP No. 469 of 2021

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On such perusal, it is crystal clear that the signatures found in Exs.P1 and P2 are the signatures of the accused-revision petitioner.

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Ex. D5 is the complaint lodged to the ManagerSBM Bank by the accused.The said complaint is dated 14.12.2015.

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In the said complaint, the accused has stated that he has issued the cheque bearing No.723405 in a sum of `23,600/- and another cheque bearing No.791606 but he does not remember the amount in the said cheque and the payee of those cheques has cheated him and therefore, it should not be honored. In other words, the said complaint or letter is in the nature of ‘Stop payment’.

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However, the cheques were not dishonored on the endorsement of the ‘Stop payment, but the cheques were dishonored on the ground of ‘Insufficient funds’.

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It is now settled principles of law that even for the Banker to act on the instructions of the ‘Stop Payment’, the account holder must keep the sufficient balance in his account and then instruct the ‘Stop Payment’.

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The very fact that the accused has given a letter to his Banker mentioning that the cheques have been issued in favour of the complainant, the initial burden cast on the complainant has been duly discharged by the complainant. The cheques are also not returned with an endorsement that the signatures do not tally. Under such circumstances, the presumption as is available to the complainant under Section 139 of the N.I. Act has to be drawn in favour of the complainant and the same has been drawn by the learned trial Magistrate in the impugned order.

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Further, it is to be noted that the said presumption is not absolute and it is a rebuttable

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presumption. The accused took up the responsibility of rebutting such presumption by examining himself as DW1 and place on record 7 documentary evidence as referred to supra.

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According to documentary evidence placed on record by the accused, there was an agreement to sell between the parties and in that regard, the suit is pending before the Civil Judge (Senior Division), Chamarajanagara, in O.S.No.116/2018. Ex.D1 is the copy of the plaint.

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Based on the said plaint, the accused contended that in view of the agreement of sale, the accused cannot be treated as a tenant.

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However, the agreement placed on record by the accused marked at Ex.D6 shows that there was a rent agreement between the complainant and the accused. The said rent agreement is dated 09.12.2015. In the rent agreement itself there is a mentioning that cheques bearing Nos.723405 and also 791606 has been issued as

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post dated cheques. Therefore, it is for the accused to properly explain as to what prevented him from taking criminal action if there is a misuse of the post dated cheques. The complainant on the contrary stated that the cheques are issued towards the arrears of rent. Further, the case that has been sought to be propounded by the accused before this Court that there is an agreement to sell and the same is being the subject matter of suit in O.S.No.116/2018 is concerned, expressing any opinion by this Court in this revision petition would definitely hamper the rights of the parties in the pending civil suit.

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Suffice to say that the defence evidence placed on record has been considered in the right perspective by the learned trial Magistrate and has formed an opinion that the same did not rebut the presumption available to the complainant under Section 139 of the N.I. Act.

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Learned Judge in the First Appellate Court on re-appreciation of the above material on record, did not

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NC: 2024:KHC:19281 CRL.RP No. 469 of 2021

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find any good reasons to upset the finding recorded by the learned trial Magistrate.

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This Court in the revision petition, having regard to the limited scope, cannot form a altogether different opinion and hold that the cheques were misused by complainant especially in the absence of any positive action taken by the accused about the alleged misuse.

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In that regard, feeble attempt is no doubt made by the counsel for the petitioner in drawing the attention of this Court to the police endorsement marked at Ex.D7. This Court perused the said endorsement meticulously. In the said endorsement, the accused has sought for taking action against the complainant for the misuse of cheques but it is for the enforcement of the agreement to sell. Therefore, police were justified in issuing an endorsement that the matter is of the civil in nature and directed the parties to approach the civil Court.

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NC: 2024:KHC:19281 CRL.RP No. 469 of 2021

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Thereafter, the accused has approached the Civil Court for enforcement of the agreement to sell in O.S.No.116/2018.

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As such, this Court is of the considered opinion that the conviction recorded by the trial Magistrate confirmed by the First Appellate Court needs no interference.

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Having said thus, it is noticed that as sum of Rs.5,000/- is ordered to be confiscated to the State out of the fine amount of Rs.1,10,600/- in the impugned order of the learned trial Magistrate confirmed by the first appellate Court. Since the lis is prevy to the parties and no state missionary is involved directing the sum of Rs.5,000/- out of the fine amount to be confiscated to the State needs interference by this Court. Accordingly, the following:

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NC: 2024:KHC:19281 CRL.RP No. 469 of 2021

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ORDER

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i. The criminal revision petition is

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allowed in part .

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ii. While maintaining the conviction of the accused for the offence punishable under Section 138 of the N.I. Act, the compensation amount awarded by the trial Magistrate in a sum of Rs.1,05,000/- is maintained and balance fine amount to be confiscated to the State is hereby set aside.

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iii. Rest of the sentence stands unaltered.

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Sd/JUDGE

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AG List No.: 1 Sl No.: 31

Sri Srikanthamurthy a H v. Sri Gururaj M

Case brief

What is this about?

What did the court decide?

Sri Srikanthamurthy a H v. Sri Gururaj M

Case brief

What is this about?

What did the court decide?

What the court decided

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