Partly allowed

Sri Dr v. H Hanumanthappa v K M Manjunath

Karnataka HC27 Jun 2024CRL.RP/492/2020

Case brief

AI extract

What is this about?

Court allowed revision in part, confirming conviction for cheque dishonour but setting aside Rs. 5,000 fine for State expenses, ordering total compensation of Rs. 1,05,000 to complainant.

What did the court decide?

Revision petition allowed in part; fine of Rs. 5,000 towards State expenses set aside; full fine confirmed as compensation payable to complainant.

Sri Dr v H Hanumanthappa Vs K M Manjunath — Cheque Dishonour | Karnataka HC (2024)

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1 - NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^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. 492 OF 2020

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BETWEEN:

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SRI. DR. V.H HANUMANTHAPPA, S/O V. HANUMANTHAPPA, AGED ABOUT 56 YEARS, R/AT NO.32, 1ST B MAIN ROAD, BANDEMUTT, KENGERI, SATELLITE TOWN, BANGALORE - 560 060.

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…PETITIONER

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(BY SRI. MANJUNATH M.S, ADVOCATE)

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AND:

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Digitally signed by YAMUNA K L Location: High Court of Karnataka

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K.M. MANJUNATH, S/O K. MARILINGE GOWDA, R/AT NO.376, 6TH MAIN, 3RD CROSS, KENGERI SATELLITE TOWN, BANGALORE - 560 060.

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(BY SRI. S. SURESH, ADVOCATE)

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…RESPONDENT

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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 PASSED BY THE HONBLE LXII ADDITIONAL CITY CIVIL AND SESSION JUDGE, BENGALURU IN CRL.A.NO.652/2017 ON 09.01.2020 AND JUDGMENT AND CONVICTION ORDER PASSED IN C.C.NO.6510/2015 ON 11.04.2017 BY THE XXIII A.C.M.M., AT BENGALURU.

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

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NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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ORDER

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Heard Sri M S Manjanna, learned counsel for the petitioner and Sri Suresh, learned counsel for the respondent.

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Accused, who suffered an order of conviction for the

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offence punishable under Section 138 of the Negotiable Instruments Act in C.C. No.6510/2015 confirmed in Crl.A. No.652/2017 has preferred this revision petition.

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Brief facts of the case in brief for the disposal of the revision petition are as under:

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A complaint came to be lodged by the complainant under Section 200 Cr.P.C. alleging the commission of offence under Section 138 of the Negotiable Instruments Act contending that complainant is a civil contractor who has undertaken the renovation work of the house of the accused and in that regard, towards the renovation charges accused issued a cheque in a sum of Rs.70,000/- which on presentation came to be dishonored. Legal notice issued by the complainant, resulted in non compliance and therefore sought for action.

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NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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Learned trial Magistrate took cognizance of the offence and issued summons. Presence of the accused was secured, plea was recorded, accused pleaded not guilty, therefore, trial was held.

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In order to prove the case of the complainant, complainant got examined himself as PW.1 and placed on record seven documentary evidence which were exhibited and marked as EXs.P1 to P7. Among the documents that has been placed on record, EX.P1 is the dishonored cheque, P2 is the bank endorsement, P3 is the office copy of the legal notice, P4 to P6 are the postal receipts and postal acknowledgement, P7 is the reply notice.

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Thereafter, the learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.P.C., wherein accused denied all the incriminatory materials.

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To rebut the presumption available to the complaint under Section 139 of the Negotiable Instruments Act, accused got examined himself as DW.1 and placed on record 8 documents which were exhibited and marked as EX.D1 to D8

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NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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comprising of endorsement made on the backside of EX.P1, agreements, complaint, statement of complaint, payment received endorsement letter and payment details letter.

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Thereafter trial Magistrate heard the parties in detail and after taking note of the rival contention of the parties, came to the conclusion that the theory put forward by the accused that non completion of the renovation work is not the reason for instructing the banker for 'stop payment' and came to the conclusion that as on the date of presentation of the cheque there was no sufficient balance in the account of the accused so as to honor the 'stop payment direction' and convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and awarded fine of Rs.1,10,000/as against cheque amount of Rs.70,000/-. Out of the fine amount, Rs.1,05,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.5,000/- towards the defraying expenses of the State.

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Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A. No.652/2017.

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5 - NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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Learned Judge in the Appellate Court after securing the records and hearing the parties in detail dismissed the appeal of the accused and confirmed the order of conviction and sentence passed by the trial Magistrate.

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

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Learned counsel for the petitioner Sri Manjanna M S reiterating the grounds urged in the revision petition vehemently contended that the material on record depict that there were serious disputes between the complainant and accused regarding the non completion of the renovation work of the house of the accused and therefore, the accused has issued 'Stop Payment' instructions to the bank, which has not been properly appreciated by the trial Magistrate and the learned Judge in the First Appellate Court and sought for allowing the revision petition.

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Learned counsel for the petitioner has also pointed out that with regard to the deficiency in the service rendered by the complainant, accused has already approached the District

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6 - NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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Consumer Forum and he has a favourable order from the District Consumer Forum and therefore, there was no legally recoverable debt which was covered under EX.P1 cheque and hence the revision petition needs to be allowed.

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Per contra, Sri Suresh, learned counsel for the respondent while supporting the impugned judgments contended that against the order of the District Consumer Forum, complainant has preferred an appeal before the Appellate Authority and the same is pending consideration.

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As such, the finding recorded by the Consumer Forum cannot be the basis to accept the case of the accused and sought for dismissal of the revision petition.

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He also pointed out that as on the date of presentation of EX.P1 to the bank, there was no sufficient balance in the account of the accused. Therefore, the trial Magistrate has considered that the cheque is dishonored for want of funds is just and proper.

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He further argued that if the accused succeeds in the appellate forum and if the complainant is required to honor the

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7 - NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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award passed by the consumer forum the accused is at liberty to recover the said amount from the complainant in accordance with law and that has got nothing to do with the present case 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.

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On such perusal of the material on record, it is crystal clear that EX.P1 has been issued by the accused to the complainant towards the renovation charges. Signature found in EX.P1 is not in dispute. Admittedly cheque has been dishonored with an endorsement 'Stop Payment'.

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However, it is well settled principles of law and requires no analysis that on the day when the cheque is to be dishonored by accepting the stop payment instructions given by the account holder, it is incumbent on the part of the account holder to keep the amount covered under the cheque plus the minimum balance. In the case on hand, no such balance was available in the account of the accused, as on the date of dishonor of the cheque and therefore the trial Magistrate was

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8 - NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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justified in holding that even though the endorsement is that of stop payment, the cheque came to be dishonored for want of funds. Therefore, trial Magistrate was justified in rising the presumption available to the complainant under Section 139 of the Negotiable Instruments Act.

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Accused having understood the responsibility of rebutting the presumption, got examined himself and produced the documents EX.D1 to D8 on record.

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As could be seen from those documents itself, there were disputes with regard to the work that has been carried out and payment that has been made after considering the relevant aspects of the matter and the amount that has been agreed upon by referring to the payment details letter at EX.D.8, cheque in question at EX.P1 came to be issued.

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When such is the categorical finding recorded by the trial Magistrate on cumulative analysis of the material on record re-appreciated by the learned Judge in the First Appellate Court, this Court, that too in the revisional jurisdiction cannot revisit into the factual aspects of the matter unless it is patently

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9 - NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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defected. No such patent defect is pointed out on behalf of the revision petitioner to hold that the impugned judgments are suffering from such patent factual defects or error of jurisdictions.

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Accordingly, this Court is of the considered opinion that the conviction order passed by the trial Magistrate, confirmed by the First Appellate Court needs no interference.

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Having said thus, as against the cheque amount, the trial Magistrate has imposed Rs.1,10,000/- as fine amount. Admittedly, in the fine amount a sum of Rs.5,000/- is ordered to be paid as fine towards the defraying expenses of the State. Since the lis is privy the parties and no State machinery is involved, imposing of fine of Rs.5,000/- towards defraying expenses of the State cannot be countenanced in law. To that extent the sentence needs to be modified.

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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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10 -

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NC: 2024:KHC:23831 CRL.RP No. 492 of 2020

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(ii) While granting 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.1,10,000/confirmed by the first Appellate Court is reduced to Rs.1,05,000/-.

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(iii) Entire sum of Rs.1,05,000/- is ordered to be paid as compensation to the complainant.

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(iv) Balance sum of Rs.5,000/- ordered by the trial Magistrate, confirmed by the First Appellate Court towards defraying expenses of the State is hereby set aside.

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(v) In default of payment of fine amount of Rs.1,10,000/accused shall undergo simple imprisonment for a period of six months.

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(vi) Time is granted for payment of balance amount till 25.07.2024.

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Sd/JUDGE

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YKL List No.: 1 Sl No.: 25 CT: BHK

Sri Dr v. H Hanumanthappa v K M Manjunath

Case brief

What is this about?

What did the court decide?

Sri Dr v. H Hanumanthappa v K M Manjunath

Case brief

What is this about?

What did the court decide?

What the court decided

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