Sri Vithal S/O Kallappa Avvannagol Alias Pujari Vs the Axis Bank

A BANKING COMPANY DULY INCORPORATED/CONSTITUTED UNDER THE COMPANIES ACT 1956 AND CARRYING ON THE BANKING BUSINESS UNDER THE BANKING REGULATION ACT, 1949 AND HAVING ITS REGISTERED OFFICE AT “TRISHUL”, THIRD FLOOR, OPP. SAMRAYHESHWAR TEMPLE, LAW GARDEN, ELLIS BRIDGE, AHMEDABAD-380006, GUJARAT AND ONE OF ITS BRANCH OFFICE AT ATHANI, REPRESENTED BY ITS MANAGER, SRI. SARIRAMASANKAR TUMMA, AGE: 35 YEARS, OCC. MANAGER, AXIS BANK LTD., BR.ATHANI, R/O. ATHANI, TQ. ATHANI, DIST. BELAGAVI-591304.

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…RESPONDENT

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(BY SRI SUBHASH J. BADDI, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 R/W. 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS IN C.C.NO.627/2015 ON THE FILE OF THE V ADDL. CIVIL JUDGE AND JMFC, ATHANI AND ALSO THE RECORDS IN CRIMINAL APPEAL NO.5030/2021 ON THE FILE OF VII ADDL. DISTRICT AND SESSIONS

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JUDGE, BELAGAVI SITTING AT CHIKODI AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DTD. 1509-2021, MADE IN C.C.NO.627/2015 PASSED BY THE V ADDL. CIVIL JUDGE AND JMFC ATHANI AND ALSO THE JUDGMENT AND ORDER CONFIRMING THE CONVICTION AND SENTENCE DTD. 02.03.2023 MADE IN CRIMINAL APPEAL NO.5030/2021 PASSED BY THE VII ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI SITTING AT CHIKODI FOR OFFENCE P/U/SEC. 138 OF N.I. ACT AS THE SAME BEING NOT SUSTAINABLE IN LAW.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

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Heard Sri.Sunil Khot for Sri.Ramachandra A. Mali,

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learned counsel for the revision petitioner and Sri.Subhash J Baddi, learned counsel for respondent.

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Accused who suffered an order of conviction for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881, (for short, ‘the N.I.Act’) in C.C.No.627/2015 confirmed in Crl.A.No.5030/2021 is the revision petitioner.

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Facts in a nutshell for disposal of the revision petition are as under:

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A complaint came to be lodged under Section

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200 of the Criminal Procedure Code (for short, ‘the Cr.P.C.’) alleging commission of the offence punishable under Section 138 of the N.I.Act, by contending that complainant is a banking company constituted under the Companies Act, 1956 and carrying on the banking business. Accused who is resident of Muragundi village, Athani Taluk and Krishna S/o Kallappa Avvannagol @ Pujari wanted financial assistance from the complainantbank. Accordingly, accused took sum of Rs.1,72,000/-, 1,50,000/- and Rs.25,692.10 paisa from the complainantbank as crop loan and development loan on 19.04.2011 and 28.12.2012 agreed to repay the loan amount with interest as per the terms and conditions.

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For the outstanding liability of the accused as on 25.05.2015, accused issued a cheque bearing No.03947 in a sum of Rs.3,80,911/- dated 22.05.2015 drawn on the Axis Bank Limited, Athani Branch, which on presentation came to be dishonored as there was no sufficient funds in the account of the accused.

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Legal notice was issued by the Bank to the

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accused demanding the payment covered under the

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cheque. There was no compliance to the callings of the notice. Therefore, action was sought for against the accused.

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Learned trial Magistrate after completing the necessary formalities, summoned the accused and recorded his plea. Accused pleaded not guilty. Therefore, trial was held.

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In order to prove the case of the Bank

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Sri.Vijayakumar Tanaji Mane was examined as PW1 representing the Bank and placed on record 20 documents comprising of dishonored cheque, bank endorsements,

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copy of the original notice issued by Special power of attorney, application given by the accused seeking credit facility, sanction letter, on demand promissory note, delivery cum bailable letter, guarantor form, loan form, Hypothecation agreement, deed of parent, bank statement of the accused.

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Detailed cross examination of PW.1 did not

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yield any positive material so as to advance the case of the accused or to rebut the presumption available to the complainant under Section 139 of the NI Act.

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Thereafter, accused statement as is

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contemplated under Section 313 Cr.P.C. was recorded by the learned trial judge wherein accused has denied all the incriminating materials.

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In order to rebut the presumption available to the complainant, accused got examined himself as DW1 and in his oral testimony he tried to impress upon the Court that the personal cheque of the accused has been misused by the complainant.

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Thereafter, learned trial judge heard the arguments of both the sides and on cumulative consideration of the oral and documentary evidence on record, recorded a categorical finding that the material evidence placed on record on behalf of the complainant would constitute all necessary ingredients to attract the offence under Section 138 of NI Act and the defense

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evidence in the form of oral testimony of accused was not sufficient to rebut the presumption available to the complainant under section 139 of the NI Act and convicted the accused for the offence punishable under Section 138 of the NI Act and imposed fine of Rs.3,80,911/- with interest at 12%. Sum of Rs.30,000/was also appropriated towards the defraying expense of the State. Being aggrieved by the same, accused filed appeal before the district Court.

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Learned judge in the First Appellate Court, after

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securing the records heard the arguments of the parties and dismissed the appeal.

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

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Sri.Sunil Khot, learned counsel for the revision petitioner representing Sri.Ramachandra A. Mali, reiterating the grounds urged in the petition and contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused for the offence punishable under

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Section 138 of NI Act which resulted in miscarriage of justice and sought for allowing the revision petition.

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Counsel for the revision petitioner would emphasise that awarding 12% interest on the sum of Rs.3,80,911/- is totally uncalled for and is against the scheme of the provisions of Section 138 of NI Act. Therefore, impugned orders need to be set aside.

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Per contra, Sri.Subhas J.Baddi supports the impugned orders.

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Having heard the arguments of both sides, this Court has perused the material available on record meticulously. On such perusal of the material on record, signature of the accused in the said chque and dishonor of the cheque and issuance of legal notice and noncompliance thereof is established by placing cogent and convincing evidence on record.

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There was no reply issued to the legal notice nor there was compliance. The above aspects of the matter prove sufficient to conclude the commission of the offense as all ingredients are established for the conviction

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of the accused for the offence under Section 138 of NI Act. Oral testimony of DW1 was not sufficient to rebut the presumption under Section 138 of NI Act.

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Therefore, conviction of the accused for the offence under Section 138 of the NI Act needs no interference. However, with regard to the sentence is concerned, learned trial judge grossly erred in awarding interest at 12% per annum on the amount of Rs.3,80,911/- and also ordering for Rs.30,000/- as part of the fine amount towards the defraying expenses of the State in as much as lies is privy to the parties and no state machinery is involved.

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Further, the learned trial Magistrate is entitled to award the double cheque amount as fine under the statue but there is no power under Section 138 of NI Act for ordering interest.

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Accordingly, the ordering of interest at 12 % and also awarding sum of Rs.30,000/- towards defraying expenses of the State needs to be set aside by exercising the revisional powers vested in this Court under revisional

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jurisdiction as learned First Appellate Court failed to consider the scheme of Section 138 of the NI Act and also

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failed to appreciate that no State machinery is involved.

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Accordingly, for the above discussion, following:

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ORDER

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(i) Criminal Revision Petition is allowed in part.

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(ii) While maintaining the conviction of the accused

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for the offence under Section 138 of the NI Act, the amount of fine in a sum of Rs.3,80,911/- is to be recovered and is ordered to be paid as fine amount by the revision petitioner and the same is to be paid as compensation to the complainant.

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(iii) Time is granted up to 30.03.2025 for deposit of balance fine amount. Failing which accused shall undergo simple imprisonment for a period of one year.

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