Sri. K. Nagaraj Rao Vs Sri. B. Balakrishna

Digitally …RESPONDENT signed by R MANJUNATHA(BY SRI B BALAKRISHNA, ADVOCATE -ABSENT) Location: HIGH COURT OF THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 KARNATAKA CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE SENTENCE AND CONVICTION ORDER DATED 08.02.2016 PASSED IN C.C.No.60/2009 ON THE FILE OF THE XIX A.C.M.M., AT BANGALORE CONFIRMED IN CRIMINAL APPEAL NO.192/2016 ON THE FILE OF THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE BY ITS ORDER DATED 20.12.2017 ON SUCH TERMS AND CONDITIONS.

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NC: 2026:KHC:13450 CRL.RP No. 202 of 2018

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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None appears for the respondent though notice of the revision petition served on him.

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Accused who suffered an order of conviction in C.C.No.60/2009 for the offence punishable under Section 138 of the Negotiable Instruments Act, modified in Crl.A.No192/2016 is the revision petitioner.

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Facts in the nutshell which are utmost necessary for disposal of the present revision petition are as under.

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3.1. A complaint came to be lodged under Section 200 of Code of Criminal Procedure alleging the commission of the offence by the accused for the commission of the offence under Section 138 of the Negotiable Instruments Act in respect of dishonored cheque.

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Learned trial Magistrate after completing necessary formalities held a due trial and convicted the accused and

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NC: 2026:KHC:13450 CRL.RP No. 202 of 2018

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imposed fine of Rs.1,45,000/- as against the cheque amount of Rs.1,00,000/-.

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Being aggrieved by the same, accused filed an appeal before the District Court in Criminal Appeal No.192/2016.

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Learned judge in the First Appellate Court after securing the records heard the arguments of the parties and allowed the appeal of the accused in part and confirmed the order of conviction and modified the order of sentence.

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

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Sri S. M. Kulkarni, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition would contend that in Ex.P2 – cheque, date has been mentioned as 16.06.2008 whereas accused has signed the cheque on 20.02.2007 which means that there is a difference in the date. Therefore, the contents of the cheque are filled up by the complainant by misusing the blank cheque that was issued to P.W.1 who is the power of attorney holder of the original complainant. Therefore, there was no legally recoverable debt

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NC: 2026:KHC:13450 CRL.RP No. 202 of 2018

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under Ex.P.2 - cheque and thus, sought for allowing the revision of petition.

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In the light of the arguments put forth on behalf of the revision petitioner, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is noted that Ex.P2 - cheque is dated 16.06.2008 whereas beneath the signature of the accused, a date is found as 20.02.2007.

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Admittedly, cheque is not dishonored on the ground that there is a variance in the date of signature subscribed by the accused and the date found on the cheque. In other words, the cheque got dishonored with an endorsement funds insufficient.

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For the purpose of understanding what amounts to dishonor of a cheque, the bank endorsement issued by the banker of the accused assumes significant importance. Settled principles of law would make it clear that if the cheque is dishonored for want of funds, it would straightaway attract the offence punishable under Section 138 of the Negotiable Instruments Act.

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HC-KAR

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However, mere dishonor would not result in the offence. The holder of the cheque has to issue a legal notice as is contemplated under Section 138(b) of the Negotiable Instruments Act. Such a statutory notice was issued on behalf of the complainant vide Ex.P.4. Pertinently, there was no reply to the said notice.

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Original of Ex.P.4 is produced on behalf of the accused himself which is marked as Ex.D1. Statement of account is also marked on behalf of the accused as Ex.P.2. The same is placed on record by the accused to the effect that there was no transaction with the complainant and all the transactions that he had is with the power of attorney of the complainant who is examined as P.W.1.

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In other words, the accused tried to put forth his defence that Ex.P.2 cheque did not carry any legally recoverable dead.

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In establishing the said aspect of the matter, oral testimony of accused coupled with Exs.D.1 and D.2 were placed.

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Learned Trial Magistrate and learned judge in the First Appellate Court did bestow their best attention to the said

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NC: 2026:KHC:13450 CRL.RP No. 202 of 2018

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defence in the light of the oral testimony of accused as well as the documentary evidence placed on record.

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Merely on the ground that the complainant is represented by P.W.1 who is power of attorney holder would not affect the conviction order passed against the accused.

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Defence evidence put forth on behalf of the accused was not sufficient to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act.

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Moreover, if it is the case of the accused that complainant has misused the cheque that was issued to P.W.1 who is the power of attorney holder of the complainant, a positive action on behalf of the accused was required to be taken inasmuch as no prudent person would keep quiet if the cheque is misused by somebody as it would be amount to criminal misappropriation.

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Even after engaging the services of an Advocate and cross examination of P.W.1, no positive action has been taken on behalf of the accused which would be sufficient enough to hold that the defence evidence was not sufficient to rebut the presumption.

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HC-KAR

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Therefore, order of conviction recorded by Trial Magistrate, confirmed by the First Appellate Court needs no interference, that too in the limited scope of revision jurisdiction.

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