MRS. PRIYA VARGHEESE v. MRS. SUJA SUKUMAR

ORDER Heard Sri C.Vijaya Kumar, learned counsel for the revision petitioner and Sri Praveen Kumar, learned counsel for the respondent.

Accused who suffered an order of conviction for the offence punishable under section 138 of the Negotiation Instrument Act in C.C No.55706/2014 dated 10.01.2019 on the file of the LVII Addl. Chief Metropolitan Magistrate, Bengaluru, confirmed in Crl. Appeal No.25034/2019 dated 23.03.2021 on the file of the LXXII addl. City Civil and Sessions Judge, Bengaluru, is the Revision petitioner.

Facts in brief, which are utmost necessary for disposal of the revision petition are as under: A criminal prosecution was launched by complainant against accused alleging that accused has committed an offence punishable under Section 138 of the Negotiable Instruments Act, by contending that accused and complainant are family friends for last seven years and they were residing in - 3 - NC: 2024:KHC:23960 CRL.RP No. 771 of 2021 opposite houses. In July 2010, accused approached the complainant financial assistance accordingly complainant paid Rs.1,50,000/- to the accused on 20.08.2016, sum of Rs 1,00,000/- on 22.09.2010, sum of Rs.12,00,000 on

18.06.2011, in all Rs.14,50,000/-.

Accused has agreed to repay the said sum with interest and in that regard, a bond was executed. It is the contention of the complainant that again on 08.07.2011, 15.08.2011,

14.09.2011 and 24.09.2011 she has further lent sum of ₹6,25,000/- whereby accused totally borrowed ₹20,75,000/-. A sum of ₹2,00,000/- was further advanced subsequently.

Towards repayment of the said amount, at intervention of elders and well wishers, accused parted cheque bearing number 054569 dated 08.05.2013 drawn on ICICI Bank, Kalyana Nagara Branch, Bengaluru, in a sum of ₹21,25,000/- which on presentation came to be dishonoured with an endorsement ‘Insufficient funds’.

Legal notice came to be issued and there was no compliance nor reply to the callings of the notice. As scuh, - 4 - NC: 2024:KHC:23960 CRL.RP No. 771 of 2021 complainant sought action against the accused. Cognizance of the offence was taken. Presence of the accused was secured. Plea was recorded. Accused pleaded not guilty and trial was held.

In order to prove the case of the complainant, one Radha Krishnan was examined as P.W.1 and complainant got herself examined as PW-2. On behalf of the complainant, 11 documents were exhibited and marked as Exs.P.1 to 11. In their cross examination, no useful material is elicited to dislodge the presumption under Section 139 of the Negotiable Instruments Act.

The statement of the accused as is contemplated under Section 313 of the Code of Criminal Procedure was recorded.

Thereafter accused got examined herself as D.W.1 and placed on record the bank passbook, marked as Ex.D-1.

The learned Trial Magistrate heard the parties in detail and on cumulative consideration of the material evidence on record, viz., Ex. P.8-money bond, P.9-bank pass book and P.10-diary, came to the conclusion that complainant has - 5 - NC: 2024:KHC:23960 CRL.RP No. 771 of 2021 discharged initial burden in establishing her case to raise the presumption as is available to her under Section 139 of the Negotiable Instruments Act.

Learned Trial Magistrate took into consideration the cross-examination of the complainant and her witness and came to the conclusion that, to establish the theory that accused is totally illiterate, no documentary material is placed on record. Thereby there is material to show that she studied till 10th standard and does not know any other language other than Malayalam.

Learned trial Magistrate came to the conclusion that oral evidence of D.W.1 did not rebut the presumption available to the complainant and bank passbook did not improve the defense taken by the accused and therefore, convicted the accused for the offence punishable under section 138 of the Negotiable Instruments Act, and imposed fine in a sum of ₹42,62,625/- and imposed Rs.5,000/- to the State towards defraying expenses. Rs.42,62,625/- was ordered to be paid as compensation to the complainant with default sentence of simple imprisonment for one year. - 6 - NC: 2024:KHC:23960 CRL.RP No. 771 of 2021

Being aggrieved by the same accused preferred an appeal before the District Court in Crl.A No.25034/2019.

The learned Judge in the First Appellate Court, considered in detail the contentions urged on behalf of the parties and passed a detailed judgment by referring to various judgments of the Hon’ble Apex Court in the case of Rangappa Vs Mohan reported in (2010)11 SCC 441 and K.N.Benna vs. Nuniyappan and another reported in (2001)8 SCC 458 and other judgments which govern the field of law insofar as raising presumption in favour of the complainant and partly allowed the appeal of the accused by modifying the fine amount from Rs.42,62,625/- to Rs.39,15,000/- of which Rs.39,10,000/- was ordered to be paid as compensation to the complainant.

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

Sri C.Vijaya Kumar, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, contended that approach of the trial Court and the learned - 7 - NC: 2024:KHC:23960 CRL.RP No. 771 of 2021 Judge in the first Applied Court is incorrect in convicting the accused and sought for allowing the revision petition.

Per contra, Sri Praveen Kumar, learned counsel supports the impugned Orders.

Having heard the parties in detail, this court perused the material on record meticulously.

On such perusal, parting away the cheque marked at Ex.P1 and signature of the accused therein is not in dispute.

According to accused, she is an illiterate and does not know any language other than Malayalam and Ex.P.1 has been misused by the complainant and therefore there is no offence committed by the accused.

Learned Trial Magistrate has discussed at length as to the validity of Exs.P8, P9 and P10 and also contention taken by the accused that she is illiterate and she does not know any language other than Malayalam and then came to the conclusion that the said plea is only to escape the liability and to avoid rigors of law, and held that accused is guilty of offence - 8 - NC: 2024:KHC:23960 CRL.RP No. 771 of 2021 punishable under section 138 of the Negotiable Instruments Act.

The learned Judge in the First Appellate Court on re- appreciation of the entire evidence on record, in the light of the grounds urged in the appeal memorandum answered each and every grounds that has been raised by the appellant with cogent and convincing reasons basing the reasons on the principles of law enunciated by the Hon’ble Apex Court governing the field of law and then upheld the conviction.

Learned Judge in the first Appellate Court also bestowed its attention in reducing fine amount from Rs.42,62,625/- to Rs.39,10,000/-.

The very fact of reducing the fine amount by the learned Judge in the first appellate court shows that there is total application of mind into the rival contents of the parties and a judicious order has been rendered.

However, learned Trial magistrate as well as the learned Judge in the first Appellate Court missed one aspect of the - 9 - NC: 2024:KHC:23960 CRL.RP No. 771 of 2021 matter that the lis is privy to the parties and no State machinery is involved.

Therefore, imposition of Rs.5,000/- as defraying expenses to the State cannot be countenanced in law.

Accordingly, in view of foregoing discussions, this Court is of the considered opinion that the grounds urged in the revision petition is hardly sufficient to annul the finding of the conviction passed by the learned trial Magistrate confirmed by the learned Judge in the first Appellate Court.

Having said thus, no special reasons are also forthcoming to reduce the fine amount further, in view of the fact that accused is not in a position to pay any amount of settle the dispute amicable. Further, as per Section 80 of the N.I.Act, when there is no specified interest in a Negotiable Instrument, the interest payable on such instrument in a civil suit is to the extent of 18% per annum.

Taking note of the fact that the cheque is dishonored in the year 2014, this Court is of the considered opinion that the fine amount reduced by learned Judge in the First Appellate - 10 - NC: 2024:KHC:23960 CRL.RP No. 771 of 2021 Court in the sum of Rs.39,10,000/- as compensation payable to the complainant is just and reasonable having regard to the attendant facts and circumstances of the case.