SHANKARAPPA K.E v. SRI. SHARATHCHANDRA

ORDER Heard Sri.Umesh, learned counsel R.B.Deshpande, learned counsel for the revision petitioner and Sri.Jagadeesh H. J., learned counsel respondent.

2. The present revision petition is filed by the revision petitioner challenging the order of conviction and sentence passed in CC No.33/2018 which was confirmed in Criminal Appeal No.315/2019 for the offence punishable under Section 138 of the Negotiable Instruments Act whereby, accused was directed to pay fine in a sum of Rs.4,00,000/-, out of which Rs.3,95,000/- is ordered to be paid as compensation to the complainant and balance sum - 3 - NC: 2024:KHC:22725 CRL.RP No. 1035 of 2021 of Rs.5,000/- is ordered to be paid as defraying expenses to the State.

3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:

3.1. It is the case of the complainant that accused borrowed sum of Rs.3,00,000/- as a hand loan and towards the repayment, accused passed on a cheque bearing No.208557 dated 28.09.2017 for a sum of Rs.3,00,000/- which on presentation came to be dishonored with an endorsement 'funds insufficient' on

16.11.2017. Legal notice was issued as is contemplated under the statue has been issued and same is served and accused has sent an untenable reply. Therefore, complainant sought for action against the accused.

4. The learned Trial Magistrate after taking cognizance, secured the presence of the accused and - 4 - NC: 2024:KHC:22725 CRL.RP No. 1035 of 2021 recorded the plea. Accused pleaded not guilty. Therefore, the trial was held.

5. In order to prove the case of the complainant, complainant got examined as P.W.1 relied on five documentary evidence, which were exhibited and marked as Exs.P.1 to Ex.P.5 comprising of cheque as Ex.P.1, signature of the accused as Ex.P.1(a), bank endorsement as Ex.P.2, copy of the legal notice as Ex.P.3, postal endorsement as Ex.P.4 and reply notice as Ex.P.5.

6. As against the evidence placed on record by the complainant, no contra evidence is placed on record by the accused either by examining himself or perusing any material documents on record.

7. Thereafter, learned Trial Magistrate recorded the accused's statement as is contemplated under Section 313 of Cr.P.C. wherein, the accused has denied all the incriminatory circumstances. - 5 - NC: 2024:KHC:22725 CRL.RP No. 1035 of 2021

8. Subsequent there to, learned Trial Judge heard the arguments of the parties in detail and after considering the oral and documentary evidence placed on record, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed sentence as referred to supra.

9. Being aggrieved by the said order of conviction and sentence passed by the learned Trial Magistrate, the accused preferred an appeal before the First Appellate Court in Criminal Appeal No.315/2019.

10. The learned Judge in the First Appellate Court after securing the records and hearing the arguments, vide judgment dated 13.08.2021, dismissed the appeal and confirmed the order of conviction and sentence.

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

12. Reiterating the grounds urged in the revision petition, learned counsel for the revision petitioner - 6 - NC: 2024:KHC:22725 CRL.RP No. 1035 of 2021 vehemently contended that accused is a teacher and blank cheque has been extracted by the complainant in the guise of friendship and same has been misused by the complainant. Therefore, case of the complainant needs to be discarded and case of the accused needs to be acquitted.

13. Per contra, learned counsel for the respondent supports the impugned judgments.

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

15. On such perusal of the material on record, it is crystal clear that there is no dispute that the dishonored cheque at Ex.P.1, belongs to the accused and signature found there in is that of the accused. According to the complainant, there was a hand loan and towards the repayment of the said hand loan, cheque has been issued. Initial burden has been discharged by the complainant and same has been properly appreciated by learned Trial - 7 - NC: 2024:KHC:22725 CRL.RP No. 1035 of 2021 Magistrate in the light of the presumption which is available to the complainant under Section 139 of the Negotiable Instruments Act.

16. While so raising the presumption, learned Trial Magistrate has taken note of the principles of law enunciated by Hon'ble Supreme Court in the case of Hiten P. Dalal V/s. Bratindranath Banarjee reported in AIR 2001 SC 3897, Rangappa V/s Sri Mohan reported in 2010 (11) SCC 441, Sri V. V. Chari V/s. M/s Meenakshi Developers, Bengaluru reported in ILR KAR 4775.

17. No doubt, the said presumption is a rebuttable presumption. To rebut the presumption available to the complainant, no contra material evidence is placed on record by the accused either by examining himself or by placing material evidence on record.

18. It is clear case of the accused that cheque has been misused. But no positive action is taken by the - 8 - NC: 2024:KHC:22725 CRL.RP No. 1035 of 2021 accused in this regard either by filing the police complaint on the issuance of the legal notice etc.

19. Under such circumstances, conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act recorded by the learned Trial Magistrate confirmed by the First Appellate Court does not require any interference by this Court, that too, in the revisional jurisdiction.

20. Having said thus, it is seen that learned trial Magistrate has imposed sum of Rs.4,00,000/- as the fine amount, out of which, sum of Rs.3,95,000/- ordered to be paid as compensation to the complainant and balance sum of Rs.5,000/- towards the defraying expenses of the State. When once there is no State machinery involved, in view of the fact that lis is privy to the parties, imposition of fine amount of Rs.5,000/- towards the defraying expenses of the State cannot be countenanced in law and therefore, same needs to be set aside. - 9 - NC: 2024:KHC:22725 CRL.RP No. 1035 of 2021

21. Accordingly, the following: ORDER i. ii. Criminal Revision Petition is allowed in part. While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, the fine amount ordered by the learned Trial Magistrate confirmed by the First Appellate Court in a sum of Rs.4,00,000/- is modified to the sum of Rs.3,95,000/- and sum of Rs.5,000/- imposed as fine towards the State is hereby set aside. iii. Entire amount of Rs.3,95,000/- is to be paid as compensation to the complainant. iv. In default of payment fine amount, accused shall undergo simple imprisonment for a period of one year. - 10 - NC: 2024:KHC:22725 CRL.RP No. 1035 of 2021 v. Accused is granted time till 10.07.2024 to pay the balance fine amount. KAV/List No.: 1 Sl No.: 42 Sd/- JUDGE