B.R. PUNDAREEKAKSHA v. ANJALI M

CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL ORDER Heard the learned counsel Sri. Venkataramana M.K. for the revision petitioner and the learned counsel Sri. H.S. Shankar for the respondent.

2. Accused who suffered an order of conviction for the offence punishable under Section 138 of Negotiable Instruments Act in CC No.14832/2014 confirmed First Appellate Court Crl.A.No.883/2015 is a revision petitioner.

3. Facts in the nutshell for disposal of the revision petition are as under: A complaint came to be lodged under Section 200 Cr.P.C. alleging the commission of the offence under - 3 - NC: 2024:KHC:51072 CRL.RP No. 761 of 2016 Section 138 of the Negotiable Instruments Act contending that the accused borrowed hand loan of Rs.10,00,000/- from the complainant promising to repay the same with interest at 18% within a period of three months. Towards the repayment, accused issued a Cheque bearing No.220995 dated 14.09.2011 for a sum of Rs.1,00,000/- drawn on Syndicate Bank, Shashadripuram, Bangalore, which on presentation, came to be dishonoured with an endorsement "Funds Insufficient". Legal notice was issued to the accused demanding the payment. The same is served on the accused. There is no reply nor compliance which resulting in seeking action against the accused by the complainant.

5. Learned Trial Magistrate after completing the necessary formalities, the accused was summoned by Trial Magistrate. He appeared before the Court. Plea was recorded. Accused pleaded not guilty. Therefore, the trial was held. - 4 - NC: 2024:KHC:51072 CRL.RP No. 761 of 2016

6. In order to establish the case of complainant, the complainant got examined himself as PW1 and placed on record 7 documents which were exhibited and marked as Exs.P1 to P7 comprising of dishonoured cheque, copy of the endorsement, copy of the legal notice, postal receipts, postal acknowledgement and the returned postal cover.

7. Detailed cross examination of PW1 did not yield any positive material so as to disbelieve the version of the complainant nor to dislodge the presumption available to the complainant.

8. Thereafter, the accused statement as contemplated under Section 313 of Code of Criminal Procedure was recorded, wherein accused denied all the incriminatory materials, but did not chose to place any written submission on record as is contemplated under Section 313(4) of the Code of Criminal Procedure nor placed any defence evidence. - 5 - NC: 2024:KHC:51072 CRL.RP No. 761 of 2016

9. Thereafter, the learned Trial Magistrate heard the parties and convicted the accused and imposed fine of Rs.1,10,000/-, of which a sum of Rs.1,00,000/- is ordered to be paid as compensation to the complainant, balance sum of Rs.10,000/- towards the defraying expenses of the State.

10. Being aggrieved by the same, the accused filed an appeal before the First Appellate Court Crl.A.No.883/2015. The learned Judge in the First Appellate Court after securing the records, heard the parties in detail and dismissed the appeal of the accused. Thereafter, the accused is before this Court in this revision petition.

11. Learned counsel Sri. Venkataramana M.K. for the revision petitioner, reiterating the grounds urged in the revision petition contending that the complainant is said to be the stranger to the accused and there was no transaction between the complainant and the accused, - 6 - NC: 2024:KHC:51072 CRL.RP No. 761 of 2016 there was a misuse of the cheque marked at Ex.P1 by the complainant and sought for allowing the revision petition.

12. Per contra, learned counsel Sri. Shankar H.S. supports the impugned judgment.

13. Having heard the parties, this Court perused the material on record meticulously. On such perusal of record, following points would arise for consideration : (i) Whether the revision petitioner establishes that the impugned judgments are suffering from legal infirmity and perversity? (ii) Whether the sentence is excessive? (iii) What order?

14. Regarding Point No.1: In the case on hand, Cheque marked at Ex.P1 belonging to the accused and the signature found therein is that of the accused is not in dispute. According to the accused, complainant is a stranger and there is a misuse of the Cheque, no material is forthcoming as to how the - 7 - NC: 2024:KHC:51072 CRL.RP No. 761 of 2016 Ex.P1 reached the hands of the complainant. No criminal action has been taken against the accused even after accused engaged the service of an advocate before the learned Trial Magistrate about the alleged misuse of the Cheque.

15. Admittedly, the Cheque came to be dishonoured with an endorsement "Funds insufficient". Legal notice is not replied. All these factors when viewed cumulatively, the learned Trial Magistrate was justified in recording the Order of conviction by raising the presumption under Section 139 of the Negotiable Instruments Act and convicting the accused.

16. Learned Judge in the First Appellate Court has rightly re-appreciated the said aspects while upholding the order of conviction.

17. This Court revisional jurisdiction, cannot re-visit into the factual aspects of the matter and appreciate the findings recorded by both the Courts especially in the absence of any rebuttal evidence - 8 - NC: 2024:KHC:51072 CRL.RP No. 761 of 2016 placed on record by the accused. Therefore, the point No.1 is answered in 'Negative'.

18. Regarding Point No.2: As against the Cheque amount, a sum of Rs.1,10,000/- is imposed by the learned Trial Magistrate, of which a sum of Rs.1,00,000/- is ordered to be paid as compensation to the complainant and balance amount of Rs.10,000/- towards defraying expenses of the State. Same cannot be countenanced in law in view of the fact that lis is privy to the parties and no State machinery is involved.

19. Accordingly, the interference is required with regard to a sum of Rs.10,000/- imposed by the Trial Magistrate towards defraying expenses of the State. Accordingly, the point No.2 is answered "partly in the Affirmative. - 9 - NC: 2024:KHC:51072 CRL.RP No. 761 of 2016

20. Regarding Point No.3: In view of the findings of the Court on points No.1 and 2, following Order is passed: ORDER (i) Criminal Revision Petition is allowed in part. (ii) While maintaining the Order of conviction of the accused for the offence punishable under Section 138 of Negotiable Instruments Act, the fine amount of Rs.1,10,000/- ordered by the Trial Magistrate confirmed by the First Appellate Court is modified and reduced to Rs.1,00,000/-. (iii) Entire amount of Rs.1,00,000/- is ordered to be paid as compensation to the complainant on or before 30.01.2025 failing which the revision petitioner shall undergo simple imprisonment for a period of six months. . - 10 - NC: 2024:KHC:51072 CRL.RP No. 761 of 2016 (iv) Amount of Rs.10,000/- ordered by the Trial Magistrate, confirmed by the First Appellate Court towards defraying expenses of the State is hereby set-aside. (v) Office is hereby directed to return the Trial Court Records with copy of this Order forth with. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 70 CT: BHK