SRI LOKESH BAGAL R v. SR. B. S. GOPAL

ORDER Heard Kumari Shree Tejusha, appearing on behalf of Sri Harish H.V., learned counsel for the revision petitioner and Sri Jagadish.N., learned counsel for respondent.

2. Accused who has suffered an order of conviction under Section 138 of Negotiable Instruments Act C.C.No.14118/2016, dated 24.04.2019, on the file of XII Additional Chief Metropolitan Magistrate, Bengaluru and confirmed in Crl.A.No.1276/2019, dated 12.08.2021, on the file of LXV Additional City Civil and Sessions Judge, Bengaluru, is the revision petitioner.

3. Facts in brief which are utmost necessary for disposal of the revision petition are as under; A complaint came to be lodged under Section 200 of Code of Criminal Procedure with the jurisdictional magistrate alleging the commission of the offence under Section 138 of Negotiable Instruments Act by contending that complainant and accused - 3 - NC: 2024:KHC:23092 CRL.RP No. 1061 of 2021 are known to each other for past several years and in that relationship, accused approached the complainant for financial assistance in a sum of Rs.35,00,000/- with a promise to repay the same within a short period.

4. Complainant advanced the said loan amount to the accused. Towards the repayment of the loan amount, complainant said to have issued two cheques bearing No.323483, dated 05.03.2016 in a sum of Rs.25,00,000/- and another cheque bearing No.323482, dated 04.05.2016, in a sum of Rs.10,00,000/-. Both the cheques on presentation got dishonoured with an endorsement ‘Funds Insufficient’ and ‘Payment Stopped by the Drawer’ respectively.

5. Fact of dishonour was brought to the notice by issuing the necessary legal notice which was duly served on the accused and the same was replied vide Ex.P.8. Thereafter complainant sought for action against the accused.

6. After completing necessary formalities, presence of the accused was secured, plea was recorded, accused pleaded not guilty and therefore, trial was held. - 4 - NC: 2024:KHC:23092 CRL.RP No. 1061 of 2021

7. In order to prove the case of the complainant, complainant examined himself as P.W.1 and Smt. Asha Manjunatha as P.W.2. Ten documentary evidence were placed on record, which were marked as Exs.P.1 to P.10, comprising of two dishonoured cheques, three bank endorsements, copy of the legal notice, postal acknowledgement, reply notice and bank loan account statements.

8. As against the evidence placed on record by the complainant, accused got examined himself as D.W.1 and got marked four documents, namely; stop payment instructions letter, certified copy of written statement, certified copy of complaint given to the police and certified copy of police letter.

9. Accused statement as is contemplated under Section 313 of Cr.P.C., was recorded, wherein accused has denied all the incriminating circumstances.

10. Thereafter, trial Magistrate heard the parties and by considering the oral and documentary evidence placed on record, raised presumption available to the complainant under Section 139 of Negotiable Instruments Act and recorded a finding that the defence was not sufficient to rebut the presumption and then convicted the accused for the aforesaid - 5 - NC: 2024:KHC:23092 CRL.RP No. 1061 of 2021 offence and imposed the fine of Rs.35,00,000/-, out of which sum of Rs.34,95,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.5000/- to the state towards defraying expenses.

11. Being aggrieved by the same, accused preferred an appeal before the District Court in the Crl.A.No.1276/2019 and thereafter accused is before this Court in this revision.

12. Learned counsel for the petitioner Kumari Shree Tejusha, reiterating the grounds urged in the revision petition, vehemently contended that the cheques were misused by the complainant and the complainant exploited the cordial relationship he had with the accused and betrayed the accused and therefore, there was no offence as is contemplated under Section 138 of Negotiable Instruments Act committed by the accused and sought for allowing the revision.

13. She also pointed out that the material on record is hardly sufficient to record an order of conviction and Ex.D.1 which is a stop payment letter and Ex.D.2 is the certified copy of the written statement which has not been properly appreciated by the learned Trial Judge and therefore, sought for allowing the revision petition. - 6 - NC: 2024:KHC:23092 CRL.RP No. 1061 of 2021

14. Per contra, Sri Jagadish, learned counsel representing respondent/complainant supports impugned judgment.

15. Having heard the parties, this Court perused the material on record meticulously. On such perusal of the material on record, it is crystal clear that parting away of the cheques by the accused to the complainant and the signatures of the accused in the said cheques is not in dispute.

16. According to the accused, because of the friendship that the accused enjoyed with the complainant, the cheques have been issued in the good faith, which has been misused by the complainant.

17. To advance the said theory of misuse, no proper evidence is placed on record by the accused by filing the police complaint or by placing necessary action. Ex.D.3 would not be sufficient enough to conclude that a positive action has been taken by the accused as against the complainant. Insofar as the endorsement of the stop payment is concerned, it is settled principles of law that it is the duty of the account holder to keep the amount covered under the cheque in the bank and then issue stop payment. Mere issuing stop payment - 7 - NC: 2024:KHC:23092 CRL.RP No. 1061 of 2021 instructions, without keeping sufficient balance to cover the amount mentioned in the cheque, should be construed as funds insufficient and not stop payment. Therefore, the trial Magistrate was justified in convicting the accused by raising necessary presumption under Section 139 of Negotiable Instruments Act.

18. Learned Judge in the First Appellate Court in the light of the appeal grounds re-appreciated material evidence on record and found that a theory of misuse set up by the accused is not established by placing cogent and convincing evidence on record. Therefore, both the Courts were justified in recording order of conviction for the offence punishable under Section 138 of Negotiable Instruments Act.

19. This Court, that too in the revisional jurisdiction, cannot revisit into the factual aspects of the matter, unless there is a patent error. No such patent error is forthcoming on record, so as to annul the findings recorded by both the Courts. Accordingly, conviction order needs no interference.

20. Having said thus, the learned Trial Magistrate while imposing fine of Rs.35,00,000/- has awarded only sum of Rs.34,95,000/- as the compensation. Reasons best known to - 8 - NC: 2024:KHC:23092 CRL.RP No. 1061 of 2021 the complainant, accused did not challenge the quantum of sentence or fine. Be it what it may. Since the balance of sum of Rs.5000/- towards defraying expenses towards the State, same needs interference by this Court in this revision, in view of the fact that there is no State machinery is involved and lis is privy to the parties. Accordingly, same needs interference by this Court. Hence, the following: ORDER (i) Criminal Revision petition is allowed in part. (ii) While maintaining the conviction of the accused for the offence punishable under Section 138 of Negotiable Instruments Act, fine amount imposed the Trial Court is modified to sum of Rs.34,95,000/- and the same be paid as compensation complainant, failing which, revision petitioner undergo simple imprisonment for a period of *six months. (iii) Imposition of the fine amount of Rs.5,000/- payable to the State is hereby set aside. *Corrected vide Court order dated 15.07.2024. - 9 - NC: 2024:KHC:23092 CRL.RP No. 1061 of 2021 (iv) Revision petitioner shall deposit the balance amount on or before 15.07.2024. MR List No.: 1 Sl No.: 61 Sd/- JUDGE