Vidyananda Vs Jyothi P

JYOTHI P W/O. SANTHOSH KUMAR R AGED ABOUT 37 YEARS RESIDING AT NO.39 MANJUNATHA LAYOUT ANANDAPURAM CIRCLE T C PALYA MAIN ROAD K.R. PURAM, BENGALURU - 560 022

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…RESPONDENT

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(BY SRI. HARSHBA B., ADVOCATE)

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THIS CRL.RP FILED U/S.397(1) R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER PASSED BY THE HONBLE COURT, THE PETITIONER HAS PREFERRED

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HC-KAR

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APPEAL BEFORE THE HONBLE LXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT MAYO HALL BENGALURU (CCH-73) HAS PASSED THE JUDGMENT IN NO.25151/2020 DATED 11.01.2022 AND JUDGMENT PASSED BY THE HONBLE XXXIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, MAYO HALL UNIT, BENGALURU IN C.C.NO.54642/2015 DATED 03.10.2020 TO ACQUIT THE PETITIONER OF THE CHARGE UNDER SEC.138 OF NI ACT BY ALLOWING THIS CRIMINAL REVISION PETITION.

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THIS PETITION, COMING ON FOR ADMISSION, 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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Heard Sri K.G.Kumara, learned counsel for the petitioner.

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None appears for the respondent.

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Accused who suffered an order of conviction in C.C.No.54642/2015 for the offence punishable under Section 138 of Negotiable Instrument Act, 1881 (for short 'N.I. Act') confirmed in Crl.Appeal No.25151/2020 with the revision petitioner.

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HC-KAR

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Facts in the nutshell which are utmost

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necessary for disposal of the present petition are as under:

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3.1 In respect of a dishonoured cheque, a criminal

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prosecution was launched by the respondent by filing a complaint under Section 200 of Cr.P.C. alleging the commission of the offence punishable under Section 138 of N.I. Act.

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3.2 Complaint averments would reveal that accused approached the complainant for a loan of Rs.8,00,000/and she advanced the same to the accused in November, 2014 in cash. As agreed, the accused issued 7 cheques towards the repayment of the loan and those cheques on presentation returned with an endorsement as 'funds insufficient'.

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3.3 There was no compliance with the callngs of

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legal notice dated 26.08.2015, hence, sought for action.

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HC-KAR

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Learned trial Magistrate after completing the

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necessary formalities summoned the accused and recorded plea. Accused pleaded not guilty and therefore, trial was held.

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In order to prove the case of the complainant, Power of attorney holder of complainant by name Smt.Sowbhagya is examined as PW.1 and placed on record 26 documents viz., Power of attorney, original cheques, bank endorsement, copy of the legal notice, postal receipt, returned postal cover and copy of the loan agreement.

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As against the material evidence placed on record, accused Vidyananda got himself examined as DW.1 and placed on record 22 documents viz., Bank statement, Bank challans, copy of the notice issued to Mohan, Postal acknowledgement and reply notice.

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Thereafter, learned trial Magistrate heard the

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learned counsel for the parties and on appreciation of the

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HC-KAR

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material evidence on record noticed that the defence of misappropriation of the cheques issued to Mohan is not probabilised by placing cogent evidence on record and convicted the accused for the offence punishable under Section 138 of N.I. Act and imposed fine of Rs.9,05,000/-, of which, sum of Rs.5,000/- was ordered to be paid as defray expenses of the State and balance sum of Rs.9,00,000/- towards compensation to the complainant.

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Accused filed an appeal before the District Court in Crl.A.No.25151/2020 being aggrieved by the conviction order passed by trial Magistrate. Learned Judge in the First Appellate Court heard the arguments of the parties in detail and by impugned judgment dated 11.01.2022 dismissed the appeal filed by the accused and confirming the order of conviction and sentence. Being further aggrieved by the same, accused is before this Court.

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Sri K.G.Kumara, learned counsel for the revision petitioner reiterating the grounds urged in the petition would vehemently contend that both the Courts

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HC-KAR

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have not properly appreciated the material evidence on record and wrongly convicted the accused resulting in miscarriage of justice.

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He would further contend that the documents placed on record by way of rebuttal evidence is not properly appreciated wherein it has been specifically established that the cheques in question were actually issued to Mohan and in that regard, a legal notice also came to be issued to Mohan and there was a reply notice by Mohan to the accused and probative value of those documents which are misconsidered by the learned trial Magistrate and mechanically accepted by the First Appellate Court resulting in grave miscarriage of justice to the accused and sought for allowing the revision petition.

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In the light of the arguments put forth on behalf of the petitioner, this Court perused the material on record meticulously. On such perusal of the materials on record, it is not in dispute that Ex.P.2 to Ex.P.8 cheques are belonging to the accused. Signatures found in those

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HC-KAR

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cheques is that of the accused. Loan agreement marked at Ex.P.26, it shows that there was a loan transaction between the accused and the complainant.

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It is the case of the complainant that towards the repayment of sum of Rs.8,00,000/-, cheques at Ex.P2 to Ex.P8 came to be issued. Thus, initial burden has been discharged by the complainant to invoke presumption that the complaint under Section 139 of N.I. Act as is held by the Hon'ble Apex Court in the case of Rangappa v. Sri Mohan reported in AIR 2010 SC 1898 and Rajesh

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Jain V. Ajay Singh reported in (2023) 10 SCC 148 .

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No doubt such a presumption is a rebuttable presumption. In order to rebut the said presumption, accused had examined himself as DW.1 and placed on record 22 documents comprising of Bank statement, challans and record slip of cheque book and copy of the notice issued to Mohan and postal acknowledgement and reply notice thereof.

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HC-KAR

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According to the complainant, Ex.P.2 to Ex.P8 cheques were issued to Mohan which have been misused by Mohan in active collusion with the complainant. To probabiiise such a defence, except oral testimony and production of documents no other material is placed on record.

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No normal prudent person would keep quite, if cheques are issued in favour of Mohan and it has been misused by Mohan in colluding with the complainant in not approaching the criminal Court. Mohan is not cited as a witness to establish the fact that the recipient of Ex.P.2 to Ex.P8 is Mr.Mohan.

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All these factors when viewed cumulatively do not establish, the defence stated by the accused that there is a misuse of the cheques is not probabilised and at any rate, the same was not sufficient to revert the presumption more so. Having regard to the probative value of Ex.P.26.

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HC-KAR

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Taking note of these aspects of the matter, the trial Court is justified in recording an order of conviction and passing the sentence against the accused.

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Learned Judge in the First Appellate Court dealt in each and every ground and the probative value of the documents while reappreciating the stand taken by the accused and has rightly dismissed the appeal.

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This Court having regard to the limited original jurisdiction cannot revisit into the factual aspect, as such, unless it is patently defective.

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As such, in the absence of any positive action being taken by the accused to probabilise the defence that the cheques were misused, the order of conviction recorded by the trial Magistrate confirmed by the First Appellate Court needs no interference.

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Having said so, imposition of Rs.5,000/towards defray expenses of the State out of the fine amount of Rs.9,05,000/- needs interference by this Court

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HC-KAR

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as this is revealed to be false case and no state missionary

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is involved.

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Accordingly, in view of the foregoing discussion, the following:

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ORDER

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(i) Criminal revision petition is allowed-in-

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part, while maintaining the termination of the accused for the offence punishable under Section 138 of N.I. Act fine amount of Rs.905000 is reduced to Rs.9,00,000/-.

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