Partly allowed

Sri Ramesh C v. Sri Hemanth Kumar D N

Karnataka HC4 Dec 2024CRL.RP/839/2021

Case brief

AI extract

What is this about?

Cheque-dishonour case where the accused claimed his cheque was snatched during an abduction and filed a police complaint. The court upheld conviction, finding rebuttal evidence insufficient to displace the Section 139 presumption, but reduced compensation and set aside the State-expenses fine.

What did the court decide?

Conviction maintained; compensation reduced to Rs.3,95,000 payable by 20.01.2025; Rs.5,000 State-expenses fine set aside.

Sri Ramesh C Vs Sri Hemanth Kumar D N — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:50027 CRL.RP No. 839 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 839 OF 2021

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BETWEEN:

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SRI. RAMESH C, S/O CHIKKONU, AGED ABOUT 38 YEARS, R/AT NO.232, 2ND FLOOR, KEMBATHANAHALLI, GOTTIGERE MAIN ROAD, BANGALORE - 83.

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…PETITIONER

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(BY SRI. M.G. SATHEESHA, ADVOCATE) AND:

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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SRI. HEMANTH KUMAR D.N, S/O DEVALINGEGOWDA H.D, AGED ABOUT 58 YEARS, R/AT NO.2, MANJUNATHA BUILDING, GROUND FLOOR, 80FT, KATHRIGUPPE MAIN ROAD, NEAR VIDYAPEETA CIRCLE, BSK III STAGE, BANGALORE - 65.

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…RESPONDENT (BY SRI. M.S. MANJANNA, 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 CONVICTION DATED 06.09.2019 IN C.C.NO.24760/2016 ON THE FILE OF THE XII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU AND ORDER DATED 12.03.2021 PASSED IN CRL.A.NO.2118/2019 ON THE FILE OF THE LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE CCH-65 BENGALURU AND THE COMPLIANT MAY BE DISMISSED WITH COST.

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NC: 2024:KHC:50027 CRL.RP No. 839 of 2021

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THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri.M.G.Satheesha, learned counsel for the revision petitioner and Sri.M.S.Manjanna, learned counsel for the respondent.

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Accused/revision petitioner who suffered an order of conviction in CC No.24760/2016 dated 06.09.2019 on the file of XII Additional Chief Metropolitan Magistrate, Bengaluru for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to pay fine in a sum of Rs.4,00,000/- out of which sum of Rs.3,95,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.5,000/- towards defraying expenses of the State which was confirmed in Crl.A.No.2118/2019 dated 12.03.2021 on the file of LXIV Additional City Civil and Sessions Judge (CCH-65), Bengaluru has preferred this revision petition.

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NC: 2024:KHC:50027 CRL.RP No. 839 of 2021

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Brief facts of the case which are utmost

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necessary for disposal of the revision petition are as under:

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3.1. A complaint came to be lodged under Section 200 of Cr.P.C. alleging the commission of offence punishable under Section 138 of the Negotiable Instruments Act contending that complainant and accused are friends for several years and in that friendship, accused approached the complainant with a request for a hand loan in a sum of Rs.4,00,000/- which was lent by accused in the month of July, 2015.

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3.2. Accused had agreed to repay the same within

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short period of time with 2% interest per month. Accused failed to repay the same and therefore, complainant demanded the amount.

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3.3. At that juncture, accused said to have issued a cheque bearing No.891239 dated 05.10.2016 for a sum of Rs.4,80,000/- inclusive of interest drawn on State Bank of

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Mysore, Guthula Branch, Mandya. Said cheque on presentation came to be dishonored with an endorsement ‘funds insufficient’.

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3.4. There was no compliance of legal notice. Therefore, complainant sought for action against the accused.

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Learned Trial Magistrate after completing necessary formalities, summoned the accused and recorded the plea. Accused pleaded not guilty and therefore, 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 placed on record fifteen documentary evidence on record which were exhibited and marked as Exs.P.1 to 15 comprising of original dishonored cheque, bank endorsement, copy of the legal notice, postal receipt, postal acknowledgement, unserved postal cover, reply notice, statement of accounts, Margadarshi chits statement, certified copy of

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NC: 2024:KHC:50027 CRL.RP No. 839 of 2021

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order sheet in CC No.18146/2016, certified copy of joint memo in CC No.18146/2016, certified copy of complaint in PCR No.11917/2016 and certified copy of ‘B’ charge sheet.

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Detailed cross-examination of P.W.1 did not

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yield any positive material so as to disbelieve the case of the complainant nor to dislodge the presumption available to the complainant under Section 139 of the Negotiable Instruments Act.

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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 has denied all the incriminatory circumstances.

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Subsequent there to, in order to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act, accused stepped into the witness box and got examined himself as D.W.1 and relied on six documents which were exhibited and marked as Exs.D.1 to 6 comprising of statement of the

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NC: 2024:KHC:50027 CRL.RP No. 839 of 2021

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accused, complaint given to the Police Station, police acknowledgment, certified copy of PCR No.11917/2016, certified copy of the FIR and police acknowledgment.

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In the cross-examination of D.W.1, he admits that it has been elicited that he has studied up to tenth standard in Kannada medium. He admits that Ex.P.1 – cheque belongs to him. However, he denies that signature found in Ex.P.1 is not his signature.

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He further admits that he has worked as an auto driver and there is no other income other than income from auto rickshaw. He admits that he is having monthly income in a sum of Rs.12,000/- to 13,000/- and from the said income, he has gone on repaying the amount in a sum of Rs.5,900/- every month.

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He admits that his native is Mandya District and Ex.P.3 is served on him and he has not replied the same. He also answered that there was a rift with regard to the dispute between him and brother and at that juncture, he

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NC: 2024:KHC:50027 CRL.RP No. 839 of 2021

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has been abducted by complainant and others and documents found in the auto rickshaw were taken away by the complainant and in that regard, he has filed a criminal complaint.

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He also stated that Ex.P.1 – cheque was part of such documents which were snatched away by the complainant and followers. Therefore, there is no legally recoverable debt involved in Ex.P.1 and sought for dismissal of the revision petition.

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On cumulative consideration of oral and documentary evidence placed on record, learned Trial Magistrate heard the arguments of the parties in detail

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and convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed fine as referred to supra.

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Being aggrieved by the said order of conviction and sentence passed by the learned Trial Magistrate,

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accused preferred an appeal before the First Appellate Court in Criminal Appeal No.2118/2019.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on reappreciation of the material on record, dismissed the appeal filed by the accused and confirmed the order of conviction and sentence.

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

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Sri.M.G.Satheesha, 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, resulting in miscarriage of justice.

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He further pointed out that question of repayment of the loan would not arise in view of the fact that immediately after the incident, accused has lodged a

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complaint with the jurisdictional police about the complainant and his followers snatching away the cheque. In that regard, he has produced documents vide Exs.D.1 to D.6 which has been totally ignored by both the Courts while appreciating the material evidence on record resulting in miscarriage of justice and sought for allowing the revision petition.

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Per contra, Sri.M.S.Manjanna, learned counsel for the respondent supports the impugned orders.

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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, following points would arise for consideration:

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1. Whether the revision petitioner is successful in establishing that impugned judgments are suffering from legal infirmity or perversity and thus calls for interference?

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2. Whether the sentence is excessive?

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3. What order?

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REG.POINT No.1:

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In the case on hand, Ex.P.1 – cheque belonging to the accused is not in dispute. However, he has disputed the signature in Ex.P.1 marked at Ex.P.1(a). Except his oral testimony and suggestions to P.W.1 and that signature at Ex.P.1(a) is not the signature of the accused. No other material is forthcoming on record. For the reasons best known to the accused, he did not get Ex.P.1 referred to the hand writing expert.

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Theory put forward by the accused that complainant coming into the custody of Ex.P.1 – cheque is concerned, it is specific case of the accused that when there was a dispute with regard to the brother of the complainant, his brother and his followers came near the house and in the auto rickshaw belonging to the accused, accused was abducted and snatched away entire documents that were found in the auto rickshaw which not only contained the cheque in question but also pan card

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NC: 2024:KHC:50027 CRL.RP No. 839 of 2021

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and other documents. In that regard, a private complaint was filed.

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Material on record shows that accused did not pursue the said matter and said Private Complaint came to be dismissed.

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Therefore, rebuttal evidence that is placed on record by the accused remains only as theory without there being any proof there on.

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Nothing prevented the accused to refer the cheque to the hand writing expert if he was so confident that Ex.P.1 – cheque is not having the signature of the accused. Further, cheque came to be dishonored with an endorsement ‘funds insufficient’ and not with an endorsement ‘signature did not tally’.

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All these factors when viewed cumulatively, learned Trial Magistrate was thus justified in raising the presumption in favour of complainant as is contemplated under Section 139 of the Negotiable Instruments Act.

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NC: 2024:KHC:50027 CRL.RP No. 839 of 2021

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No doubt, it is rebuttal presumption. Evidence placed on record by the accused in the form of oral evidence coupled with Exs.D.1 to 6 was not sufficient to rebut the presumption.

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Therefore, conviction order passed by the learned Trial Magistrate confirmed by the First Appellate Court needs no interference. Accordingly, point No.1 is answered in negative .

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REG.POINT No.2:

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As against the cheque amount of Rs.4,80,000/-, learned Trial Magistrate has imposed fine in a sum of Rs.4,00,000/- taking into consideration the payment said to have been made by the accused. But, complainant did not challenge the order of sentence passed by the learned Trial Magistrate and therefore, insofar as complainant is concerned, it has become final.

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Having said thus, learned Trial Magistrate has

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imposed fine of Rs.5,000/- towards defraying expenses of the State cannot be countenanced in law as the lis is privy to the parties and no State machinery is involved. To that extent, the impugned orders needs interference. Accordingly, point No.2 is answered in affirmative .

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In view of the forgoing discussion, following:

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ORDER

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i. Criminal Revision Petition is allowed in part . ii. While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, the compensation amount ordered by the learned Trial Magistrate confirmed by the First Appellate Court in a sum of Rs.4,00,000/is reduced to sum of Rs.3,95,000/-.

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NC: 2024:KHC:50027 CRL.RP No. 839 of 2021

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iii. Amount of compensation in a sum of Rs.3,95,000/shall be paid to the complainant on or before 20.01.2025 failing which the simple imprisonment ordered by the learned Trial Magistrate confirmed by the First Appellate Court shall be undergone by the accused.

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iv. Fine amount of Rs.5,000/- imposed by the learned Trial Magistrate confirmed by the First Appellate Court towards defraying expenses of the State stands set aside.

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

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Sd/(V SRISHANANDA) JUDGE

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KAV List No.: 1 Sl No.: 69 CT: BHK

Sri Ramesh C v. Sri Hemanth Kumar D N

Case brief

What is this about?

What did the court decide?

Sri Ramesh C v. Sri Hemanth Kumar D N

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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