SRI. R.CHETHAN v. SMT. S LALITHA

SRI R CHETHAN S/O RAJANNA AGED 31 YEARS R/AT 131, 5TH CROSS II STAGE, ARAVINDANAGAR OPP. ASHOKAPURAM RAILWAY STATION, MYSURU - 570 023 (BY SRI. HEMANTH KUMAR S R., ADV.) AND: SRI D VASUDEVA S/O LATE V. N. DASAPPA AGED ABOUT 75 YEARS R/AT NO.42 (KHB) II CROSS 5TH STAGE, ADICHUNCHANAGIRI MAIN ROAD, KUVEMPUNAGARA MYSURU - 570 023 (BY SRI.LOKESH D.K., ADV. FOR SRI.P NATARAJU., ADV.) ...PETITIONER ...RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED ON THE FILE OF V JMFC AT MYSURU IN CC NO. 233/2020 DATED 27.04.2021 AND ALSO SET ASIDE THE ORDER PASSED IN CR. APPEAL 151/2021 DATED 28.04.2022 ON THE FILE OF THE IV ADDL. DIST AND SESSIONS JUDGE, MYSURU AND ACQUIT THE PETITIONER. THESE PETITIONS, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2024:KHC:50562 CRL.RP No. 593 of 2022 C/W CRL.RP No. 855 of 2022 CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL ORDER Heard Sri Hemanth Kumar S.R., learned counsel for the revision petitioner and Sri Lokesh D.K., learned counsel for Sri P.Nataraju, learned counsel for the respondent.

2. The accused, who suffered an order of conviction for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'N.I.Act', for short) is the revision petitioner in both the cases.

3. Case number before the trial Court, Appeal number before the First Appellate Court, amount of the Cheque and fine amount imposed by the trial Court and confirmed by the First Appellate Court are detailed as under in the tabular column for the sake of convenience: Sl. No.

1. 2. C.C No. Crl.A. No. Cheque Amount Fine in Rs Compensation Amount Defraying Expenses 233/20 151/21 234/20 152/21 4,50,000/- 4,60,000/- 9,50,000/- 9,60,000/- 4,55,000/- 9,55,000/- 5,000/- 5,000/-

4. Facts in the nutshell are utmost necessary for disposal of the revision petition are as under: - 4 - NC: 2024:KHC:50562 CRL.RP No. 593 of 2022 C/W CRL.RP No. 855 of 2022

4.1. Accused said to have borrowed money from the complainant to meet his immediate financial requirement as the son of the complainant was his close friend. Amount was lent by the complainant and promised to repay the same within a short span of time. However, when the accused failed to make good the payment, there were repeated demands. In order to repay the amount, the accused issued a cheque, which on presentation came to be dishonoured with an endorsement 'Funds Insufficient'. There was no compliance to callings of notice as the notices were returned with an endorsement 'left returned to sender'. Therefore, complainant sought for action.

5. Learned trial Magistrate after completing necessary formalities summoned the accused in both the cases. Plea was recorded. Accused in both the cases pleaded not guilty; therefore, trial was held.

6. In both the cases, husband of the complainant was examined as PW.1 and 9 necessary documents were placed on record in support of the complaint averments - 5 - NC: 2024:KHC:50562 CRL.RP No. 593 of 2022 C/W CRL.RP No. 855 of 2022 which were exhibited and marked as Ex.P1 to 9, comprising of dishonoured cheques, Bank endorsement, copy of the Legal notices, postal covers, postal returned cover and copy of the lease agreement.

7. Detailed cross-examination of PW.1 did not yield any positive materials so as to disbelieve the case of the complainant nor to dislodge the presumption available to the complainant under Section 139 of the N.I.Act.

8. Thereafter, trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.PC. Accused has denied all the incriminating materials found in the case of the complainant but did not offer any explanation.

9. In order to rebut the presumption available to the complainant, accused got examined himself as DW.1 in both the cases.

10. In his cross-examination, he has admitted that the cheque belongs to him and signature found in Ex.D1 in both the cases is that off his signature. - 6 - NC: 2024:KHC:50562 CRL.RP No. 593 of 2022 C/W CRL.RP No. 855 of 2022

11. It is also elicited in his cross-examination that his wife name is Chaitra, his mother-in-law's name is Mahadevamma and Sri Madegowda K. is his father-in-law. He has specifically answered that he has not lodged any complaint to the police with regard to the alleged loss of cheque. He has also answered that he did not take any action against the complainant for the alleged misuse of the cheque.

12. Based on the aforesaid evidence on record, learned trial Magistrate convicted the accused and imposed the fine as referred to supra.

13. Being aggrieved by the same, accused preferred appeals as referred to supra.

14. Learned Judge in the First Appellate Court, after securing the records, heard the parties and dismissed the appeals on merits.

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

16. Sri Hemant Kumar S.R., learned counsel for the revision petitioner reiterating the grounds urged in the - 7 - NC: 2024:KHC:50562 CRL.RP No. 593 of 2022 C/W CRL.RP No. 855 of 2022 revision petition has contended that when the cheques were lost by the accused, the complainant who came into possession of the cheques, misused the same and filed the false complaint against the accused.

17. He also contended that there was no lending capacity the complainant and to avoid embarrassing questions in that record, she conveniently got examined her husband as PW.1 which shows the hollowness in the case of the complainant which has not been rightly appreciated by the learned trial Magistrate and learned Judge in the First Appellate Court and sought for allowing the revision petition.

18. Per contra, Sri Lokesh D.K., learned counsel for Sri P.Nataraju, learned counsel for the respondent supports the impugned judgments. Having heard the parties in detail, this Court perused the material on record meticulously.

19. On such perusal of the material on record, it is crystal clear that the cheques in question marked at Ex.P1 in both the cases did belong to DW.1. Signature found - 8 - NC: 2024:KHC:50562 CRL.RP No. 593 of 2022 C/W CRL.RP No. 855 of 2022 therein is also that of the signature of DW.1. The defence that has been put forward by the accused that he lost cheques which have been misused by the complainant. Had that been so, as a prudent person, accused should have lodged the complaint with the jurisdictional police or at least intimate his banker about the loss of cheques and issued necessary stop payment instructions. No such efforts have been made by the accused.

20. At least after the accused appeared before the trial Court, when he had the benefit of the advise of a lawyer, he should have taken necessary steps to lodge the complaint about the alleged misuse of the cheque by the complainant. No such effort has been made. DW.1, in his cross-examination, has categorically admits that he did not chose to take any action against the alleged misuse. Learned trial Magistrate therefore, disbelieved the version of DW.1 that there was a misuse of the cheques in both the cases and rightly raised the presumption in favour of the complainant as is found in Section 139 of the N.I.Act convicted the accused person. - 9 - NC: 2024:KHC:50562 CRL.RP No. 593 of 2022 C/W CRL.RP No. 855 of 2022

21. Learned Judge in the First Appellate Court has re-appreciated the said aspect of the matter considering the findings recorded by the learned Trial Magistrate and has rightly dismissed the appeal.

22. This Court, that too in the revisional jurisdiction, cannot revisit into the factual aspects of the matter especially when the rebuttal evidence placed on record by DW.1 is nothing but self-serving testimony without there being proper proof of the alleged lost of cheque and misused thereof. Therefore, conviction order needs to be maintained.

23. Having said thus, it is noticed that in both the cases, learned trial Magistrate has imposed Rs.5,000/- towards defraying expenses of the State is concerned, the same needs interference of this Court by exercising the revisional jurisdiction as cannot be countenanced in law in view of the fact that the lis is privy to the parties and no State Machinery is involved.

24. Accordingly, this Court proceed to pass the following: - 10 - NC: 2024:KHC:50562 CRL.RP No. 593 of 2022 C/W CRL.RP No. 855 of 2022 O R D E R (i) Criminal Revision Petitions are allowed in part. (ii) While maintaining the order of conviction passed against the accused by the trial Magistrate, confirmed by First Appellate Court for the offence punishable under Section 138 of N.I.Act, fine amount in a sum of Rs.4,60,000/- and Rs.9,60,000/- ordered C.C.No.233/2020 C.C.No.234/2020 by the trial Magistrate and confirmed by the First Appellate Court reduced Rs.4,55,000/- Rs.9,55,000/- respectively. Entire amount of Rs.4,55,000/- and Rs.9,55,000/- are ordered to be paid as compensation to the complainant in both the cases. (iii) Fine amount of Rs.5,000/- each in each of the criminal cases which has been imposed by the trial Magistrate and confirmed by - 11 - NC: 2024:KHC:50562 CRL.RP No. 593 of 2022 C/W CRL.RP No. 855 of 2022 the First Appellate Court towards defraying expenses of the State is hereby set aside. (iv) Time is granted to the accused to pay the fine amount on or before 10.01.2025, failing which the accused shall undergo simple imprisonment as ordered by the trial Magistrate and confirmed by the First Appellate Court. (v) Office is directed to return the trial Court records with a copy of this Order, forthwith. Sd/- (V SRISHANANDA) JUDGE MKM List No.: 1 Sl No.: 55