MR. K. S. KRISHNANANDA v. THE SECRETARY

(BY SRI GIREESHA KODGI, ADVOCATE) THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 21.10.2019 IN CRL.A.NO.196/2018 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AT CHIKKAMAGALURU AND CONFIRMING THE JUDGMENT OF CONVICTION DATED 02.11.2018 PASSED IN C.C.NO.159/2018 (C.C.NO.53/2013) ON THE FILE OF THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AT N.R.PURA, ITINERATE AT KOPPA. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:20288 CRL.RP No. 454 of 2021 ORDER Heard Sri Harsha G, learned counsel for Sri Sachin B.S., learned counsel for the petitioner and Sri Gireesha Kodgi, learned counsel for the respondent.

2. Accused is the revision petitioner who suffered an order of conviction in C.C.No.53/2013 (old), C.C.No.159/2018 (new) on the file of the 02nd day of November 2018 on the file of the Senior Civil Judge and JMFC, N.R.Pura, itinerate at Koppa, which is confirmed in Crl.A.No.196/2018 dated 21st October 2019 on the file of the II Addl. District and Sessions Judge, Chikkamagaluru.

3. The facts of the case reveal that accused passed on a cheque in a sum of Rs.22,300/- bearing No.014848, drawn on Syndicate Bank, Koppa Branch, which on presentation came to be dishonoured and legal notice came to be issued. There was no compliance to the callings of the notice which necessitated the complainant to file a complaint before the jurisdictional Magistrate for taking action for the offence punishable under Section 138 of the Negotiable Instruments Act. - 3 - NC: 2024:KHC:20288 CRL.RP No. 454 of 2021

4. Presence of the accused was secured before the Trial Court and plea was recorded. Accused pleaded not guilty and therefore, trial was held.

5. In order to prove the case of the complainant, complainant got examined himself as P.W.1 and one more witness by name Seetharam as P.W.2, as P.W.1 did not turn up for cross-examination.

6. On behalf of the complainant, six documents were placed on record which were exhibited and marked as Exs.P.1 to 6, comprised of cheque, bank endorsements, legal notice, postal acknowledgment and copy of resolution.

7. On conclusion of recording of evidence, statement of the accused as contemplated under Section 313 of the Code of Criminal Procedure, wherein, accused has denied all the incriminating circumstances. To rebut the evidence placed on record on behalf of the complainant, there is no contra evidence placed on record on behalf of the accused either oral or documentary. - 4 - NC: 2024:KHC:20288 CRL.RP No. 454 of 2021

8. Later on, learned Trial Magistrate heard the parties and by the judgment dated 02.11.2018 convicted the accused for the offence punishable under Section 138 of the N.I.Act and awarded sum of Rs.35,000/- as fine amount as against cheque amount of Rs.22,300/- awarded sum of Rs.34,000/- as the compensation to complainant and Rs.1,000/- towards defraying expenses to the State.

9. Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A.No.196/2018.

10. Learned Judge in the First Appellate Court secured the records and after hearing the arguments, dismissed the appeal by judgment dated 21.10.2019 and confirmed the order of conviction and sentence.

11. Subsequent thereto, accused is before this Court in this revision petition challenging the validity of the order passed by the learned Trial Magistrate and the learned Judge in the First Appellate Court.

12. Sri Harsha, learned counsel representing the Sri Sachin B.S., learned counsel for the revision petitioner reiterating the - 5 - NC: 2024:KHC:20288 CRL.RP No. 454 of 2021 grounds urged in the revision petition, contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused.

13. Per contra, Sri Gireesha Kodgi, learned counsel for the respondent, supported the impugned judgments and sought for dismissal of the revision petition.

14. Having heard the learned counsel for the parties, this Court perused the material on record, meticulously.

15. On such perusal of the material on record, it is not in dispute that the signature found in Ex.P.1-cheque is that of the accused. According to the accused, cheque is misused by the complainant.

16. To substantiate the said misuse, no positive action has been taken by the accused nor accused has stepped into the witness box and placed any evidence on record.

17. When once the cheque is issued and signature found there is found to be that of the accused, presumption as is available to the complainant gets automatically invoked in - 6 - NC: 2024:KHC:20288 CRL.RP No. 454 of 2021 favour of the complainant. However, said presumption is rebuttal presumption.

18. In order to rebut the evidence placed on record by the complainant, no contra evidence is placed on record by the accused.

19. Under such circumstances, convicting the accused by the learned Trial Magistrate upheld by the learned Judge in the First Appellate Court does not warrant interference by this Court, in this revision petition.

20. However, having perused the material on record, both the Courts got themselves misdirected in ordering Rs.1,000/- as defraying expenses to the State, as the lis is privy to parties and no State machinery is involved. Same needs interference.

21. Accordingly, the following: ORDER (i) Revision petition is allowed in part. (ii) While maintaining the Order of conviction of the accused the offence punishable under Section 138 of the Negotiable Instruments Act, - 7 - NC: 2024:KHC:20288 CRL.RP No. 454 of 2021 fine amount of Rs.35,000/- is reduced to Rs.34,000/-, which to be paid as compensation to the complainant. (iii) Rs.1,000/- awarded by learned Trial Magistrate to be paid as fine towards defraying expenses to the State is hereby set-aside. (iv) Rest of the sentence remains unaltered. Sd/- JUDGE List No.: 1 Sl No.: 40