Mrs Leena M Lewis W/O M Michael J Lewis Vs Mrs Bebi Anand Nagaralli

MRS. LEENA M. LEWIS W/O. M. MICHAEL J. LEWIS, AGE: 37 YEARS, OCC. PROPRIETOR, ASHIRWAD PRE SCHOOL (APS) R/O. B-003, MADHURA COLONY, KESHWAPUR, HUBBALLI-580023.

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…PETITIONER

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(BY SRI SANTOSH D. NARAGUND, ADVOCATE)

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AND:

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Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA

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MRS. BEBI ANAND NAGARALLI AGE: 62 YEARS, OCC. HOME MAKER, R/O. NO.13, 1^ST MAIN ROAD, KADASIDDESHWAR COLONY, KESHWAPUR, HUBBALLI-580023.

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(BY SRI HIRAN KUMAR PATIL, ADVOCATE FOR SRI GOURI SHANKAR MOT, ADVOCATE)

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…RESPONDENT

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THIS CRIMINAL REVISION PETITION IS FILED U/SEC.438 R/W. 442 OF BNSS, SEEKING TO SET ASIDE THE ORDER PASSED IN CRL.A NO. 5068/2024 DATED 03.10.2024, AGAINST THE ACCUSED BEFORE THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI, AND SET-ASIDE THE JUDGMENT OF CONVICTION IN C.C. NO. 718/2012 PUNISHABLE UNDER SECTION 138 OF NI ACT DATED 10.04.2024, PASSED BY THE II ADDITIONAL CIVIL JUDGE AND JMFC-III, HUBBALLI.

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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.Santosh D. Nargund and Sri.Naveen Kumar

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Patil, counsel for Sri.Gourishankar Mot.

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Accused suffered an order of conviction for the

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offence under Section 138 of Negotiable Instrument Act (for short, ‘N.I. Act’) in CC No.718/2022 confirmed in Crl.A. No.5068/2024 is the revision petitioner.

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

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3.1 In respect of the legally recoverable debt namely

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repayment of the investment made by the complainant, accused said to have issued two cheques which were marked as Ex.P2 and P3 in a sum of Rs.24,15,000/-. Those cheques on presentation came to be dishonoured.

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Signatures in both the cheques is not in dispute as is admitted by DW1 in the cross examination.

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3.2 Legal notice issued intimating the dishonour of the cheques and calling for the payment covered under the cheques, have been marked as exhibit P6, hand loan agreement is marked as exhibit P8. There was no compliance to the callings of notice and postal cover returned to the complainant is also marked as exhibit P7.

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3.3 Learned trial judge after considering the probative value of the oral and documentary evidence placed on record convicted the accused for the offence punishable under section 138 of the N.I. Act in a sum of Rs.23,75,625/- of which a sum of Rs.23,70,000/- was ordered to be paid as compensation to the complainant and balance amount of Rs.5,625/- towards the defraying expenses of the State.

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Being aggrieved by the same, accused filed an

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appeal in Crl.A.No.5068/2024 before the District Court.

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Learned Judge in the First Appellate Court after securing the records heard the arguments of the parties in detail and by considered judgment dated 03.10.2024 dismissed the appeal.

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Thereafter, the accused is before this Court in

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this revision petition.

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There was an interim order passed by this Court directing to deposit 50% of the fine amount. Till today, the revision petitioner has not deposited the said amount. As such, at request of counsel for revision petitioner, the matter is heard on the merits.

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Sri Santhosh D. Nargund, learned counsel for

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the revision petitioner, reiterating the grounds urged in the revision petition contended that complainant failed to make out a case of legally recoverable debt under Ex.P-1

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and P-2.

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He would further contend that the probative

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value of Ex.D1 is not considered by both the Courts while passing the impugned order.

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He would further contend that since there was no legally recoverable debt covered under Exs.P1 and P2 and profit has already been shared by the accused to the complainant, hardly there was any scope for recording an order of conviction for the offence punishable under Section 138 of N.I. Act and sought for allowing the revision petition.

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Per contra , Sri Hiran Kumar Patel on behalf of Sri Gouri Shankar Mot, learned counsel for respondent supports the impugned orders.

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He would further contend that the complainant enjoyed the presumption under Section 139 of the N.I. Act and Ex.P-8 being the hand loan agreement, the contentions urged on behalf of the revision petitioner cannot be countenanced in law.

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He would also contend that rebuttal evidence in

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the form of oral testimony of DW-1 and the document marked at Ex.D-1 would not be sufficient enough to rebut the presumption available to the complainant under Section 139 of the N.I. Act and as such, revision petition is meritless 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 perusal of the material on record, it is seen that the signatures found in Exs.P-2 and P-3 is not in dispute. Admittedly, Exs.P-2 and P-3 belongs to the accused. Further, material documents namely copy of the legal notice and loan agreement would probablize the case of the complainant that cheques were issued for legally recoverable debt.

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When once the cheque is admitted and signature found therein is not disputed, complainant enjoys the presumption including the consideration under

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the cheques and it is issued for legally recoverable debt, under Section 139 of NI Act.

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No doubt, it is a rebuttable presumption. In order to rebut such presumption, accused got examined herself as DW-1. In her evidence, she tried to dispute the signatures. She also tried to establish before the Court the fact that there is no legally recoverable debt covered under Exs.P-2 and P-3.

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To substantiate the same, she further deposed that a sum of Rs.21,00,000/- that was transferred by the complainant through RTGS to the bank account has reached the account of the school and not to the personal account of the accused.

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Further, in her cross-examination she admits that signature found in vakalatnama and signature found in Exs.P-2 and P-3 are one and the same. Therefore, signature of the accused on Exs.P-2 and P-3 stands established.

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Further, she has admitted that the receipt of

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Rs.21,00,000/- but tried to impress upon the Court that it has gone to the school account and therefore, she is not liable, cannot be countenanced in law inasmuch as she is the proprietor of the school.

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Since the payment of Rs21,00,000/is admitted, it is for her to say as to why she did not return the amount. Accused-revision petitioner tried to contend before the Court that it was an investment and not the loan. Therefore, the complainant is not entitled for refund of the same as complainant has paid the said amount on the ground that complainant would be made as Chairman to the school.

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It is also elicited in the cross-examination that

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part of the amount is paid as profit. Learned Trial Magistrate taking into consideration all these aspects of the matter, while recording the conviction, ordered a sum of Rs.23,75,625/- as against the cheque amount of Rs.24,15,000/-. Out of which, a sum of Rs.23,70,000/-

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was ordered to be paid as compensation to the complainant and balance sum of Rs.5,625/- to be appropriated towards the defraying expenses of the State.

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Since the cheques are in not in dispute and signatures found therein are not in dispute and amount said to have been given by the revision petitioner has been given due deduction by the learned Trial Magistrate in the impugned order, same has been rightly reappreciated by the learned Judge is in the First Appellate Court. Therefore, under the limited revisional jurisdiction, this Court has re-considered the material on record and does not find any good grounds to interfere with the order of conviction.

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Having said so, it is noticed that lis is privy to the parties and no State machinery is involved. Therefore, imposing fine of Rs.5,625/- towards defraying expenses of the State cannot be countenanced in law, which needs to be set aside.

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24. Accordingly, the following order is passed.

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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 order of conviction of the accused for the offence punishable under Section 138 of Negotiable Instrument Act, fine amount ordered by the learned Trial Magistrate confirmed by the First Appellate Court is modified in a sum of Rs.23,70,000/-.

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