SMT. ZULEKHA v. MALATESH

ORDER Heard Sri Girish B. Baladare, learned counsel for the revision petitioner and Sri Sandesh T.B., learned counsel for the respondent.

2. Accused has challenged the order of conviction dated

19.11.2019, passed by the learned Principal Civil Judge and JMFC., Mudigere, for the offence punishable under Section 138 Negotiable Instruments Act and ordered to pay fine of Rs.15,05,000/-, of which sum of Rs.15,00,000/- to be paid as compensation and Rs.5000/- towards the defraying expenses to the State, and the same was confirmed by the learned Judge in the First Appellate Court in Crl.A.No.265/2019, dated

25.02.2021.

3. Facts in brief which are utmost necessary for disposal of the revision petition are as under: A complaint lodged respondent/complainant stating that the accused received a sum of Rs.10,00,000/- as hand loan for meeting her urgent legal necessity with an assurance to repay the same within the - 3 - NC: 2024:KHC:21407 CRL.RP No. 513 of 2021 short period and in that regard, she had given a cheque bearing No.229674, dated 30.07.2014, in a sum of Rs.10,00,000/-, drawn on Syndicate Bank, Mudigere Branch, which on presentation dishonored and a legal notice was issued to the accused which has been returned with an endorsement unclaimed and thereafter sought for action against the accused.

4. Learned Trial Judge took the cognizance of the offence under Section 138 Negotiable Instruments Act and secured the presence of the and plea was recorded. The accused pleaded not guilty. Therefore, the trial was held.

5. In order to prove the case of the complainant, complainant got examined himself as P.W.1 and placed on record eight documentary evidence, which were exhibited and marked as Exs.P.1 to P.8, comprising of cheque, bank endorsement, copy of legal notice, postal receipt, postal covers and bank statement.

6. As against the said evidence, there was no oral and documentary evidence placed on record by the accused. Accused statement as contemplated under Section 313 Cr.P.C., - 4 - NC: 2024:KHC:21407 CRL.RP No. 513 of 2021 was recorded, wherein the accused has denied all the incriminating circumstances.

7. Thereafter learned Trial Magistrate heard the parties and by judgment dated 19th November 2019, convicted the accused and imposed the fine as referred to supra.

8. Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A.No.265/2019. Learned Judge in the First Appellate Court after securing the records, heard the parties in detail in the light of the grounds urged in the appeal memorandum and dismissed the appeal by judgment dated 25.02.2021.

9. Further aggrieved by the same, accused is before this Court in this revision.

10. Sri Girish B. Baladare, learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition contended that the accused has not borrowed any amount and the cheque that has been given to the complainant has been misused and therefore, both the Courts erred in law in - 5 - NC: 2024:KHC:21407 CRL.RP No. 513 of 2021 convicting the accused and sought for allowing the revision petition.

11. Alternatively, Sri Girish B. Baladare contended that imposing the fine of Rs.15,00,000/- for the dishonored of cheque of Rs.10,00,000/- is not just and proper and there is no special reason assigned the affidavit imposing Rs.15,00,000/- fine and therefore, sought for allowing the petition to that extent.

12. Per contra, counsel for the respondent supported the impugned judgment and contended that the case is of the year 2014 and it is now 10 years that the complainant is yet to receive the money and therefore, revision petition is to be dismissed in toto.

13. Having heard the parties in detail, this Court perused the material on record meticulously. On such perusal, it is crystal clear that the cheque is issued by the accused to the complainant and theory of misuse of the cheque is not established by stepping into the witness box by the accused or placing any other material on record. - 6 - NC: 2024:KHC:21407 CRL.RP No. 513 of 2021

14. Signature of the accused in Ex.P.1 cheque is not in dispute. Complainant has deposed before the Court that the said cheques were issued for repayment of the hand loan.

15. Since the initial burden has been discharged by the complainant, learned Trial Magistrate invoked the presumption available under Section 139 of Negotiable Instruments Act in favour of the complainant. No doubt, said presumption is a rebuttable presumption. But the accused has not placed any evidence on record either by examining herself or producing any documentary evidence to rebut the said presumption.

16. Under such circumstances, following the dictum of the Hon’ble Apex Court in the case of Indian Bank Association and others v. Union of India and others reported in (2014) 5 Supreme Court Cases 590.

17. Learned Trial Magistrate and learned First Appellate Court were justified in recording an order of conviction against the accused for the offence punishable under Section 138 of Negotiable Instruments Act. - 7 - NC: 2024:KHC:21407 CRL.RP No. 513 of 2021

18. Having said thus, learned Trial Magistrate imposed fine of Rs.15,05,000/-, of which sum of Rs.15,00,000/- was ordered to be paid as compensation and sum of Rs.5,000/- imposed towards the defraying expenses to the State.

19. Since the lis is privy to the parties, imposing fine of Rs.5000/- to the State cannot be countenanced in law. Further, as rightly contended on behalf of the revision petitioner, no special reasons are forth coming in the judgment of the Trial Magistrate or in the judgment of the First Appellate Court as to the imposition of Rs.15,00,000/- as fine amount.

20. However, it is seen that the said cheque said to be issued on 30.07.2014. Accused has paid Rs.5,00,000/- to the complainant by way of account transfer. Accordingly, balance sum of Rs.5,00,000/- is still due under the cheque payable by the accused to the complainant.

21. Since the cheque is of the year 2014, imposition of Rs.15,00,000/- needs to be reduced. Accordingly, fine amount of Rs.15,00,000/- is reduced to Rs.14,50,000/-. - 8 - NC: 2024:KHC:21407 CRL.RP No. 513 of 2021 Accordingly, following ORDER (i) (ii) Revision petition is allowed in part. While maintaining the conviction of the accused for the offence punishable under Section 138 of Negotiable Instruments Act, fine amount awarded by the Trial Magistrate and confirmed by the First Appellate Court, in a sum of Rs.15,05,000/- is reduced to Rs.14,50,000/-. (iii) A sum of Rs.5000/- awarded by the trail Magistrate towards the defraying expenses is hereby set aside. (iv) Entire amount of Rs.14,50,000/- is payable as compensation to the complainant. (v) Since Rs.5,00,000/- is already transferred to the account of the complainant of the accused, balance of Rs.9,50,000/- is to be paid by the accused complainant on or before 30.06.2024. Failing which, accused shall undergo simple imprisonment for a period of one year. - 9 - NC: 2024:KHC:21407 CRL.RP No. 513 of 2021 (vi) Office is directed to return the trial Court records with copy of this order forthwith. Sd/- JUDGE MR List No.: 1 Sl No.: 47