M. JEYASHANKAR v. MANJUNATHA

(BY SRI. R. RAVI, ADVOCATE) …RESPONDENT - 2 - NC: 2024:KHC:18941 CRL.RP No. 6 of 2021 THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 10.08.2020 IN CRL.A.NO.375/2019 PASSED BY THE VII ADDITIONAL DISTRICT AND SESSION JUDGE, MYSURU AND THAT OF THE JUDGMENT AND ORDER DATED 14.11.2019 IN CRL. CASE NO.1158/2016 PASSED BY THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS (III COURT) MYSURU AND ACQUIT THE PETITIONER OF THE OFFENCE CONVICTED AND SENTENCED U/S 138 OF THE N.I ACT AND SET HIM AT LIBERTY. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Heard Sri.Honakhande Basgowda Pandit, learned counsel for the petitioner.

2. The present revision petition is filed by the accused challenging the order of conviction and sentence passed in CC No.1158/2016, who has been convicted for the offence punishable under Section 138 of Negotiable Instruments Act which was confirmed in Criminal Appeal No.375/2019. - 3 - NC: 2024:KHC:18941 CRL.RP No. 6 of 2021

3. Brief facts of the case which are utmost necessary for the disposal of the present revision petition are as under: Accused issued cheques which are marked at Exs.P.2 to Ex.P.5 towards legally recoverable debt. Same on presentation came to be dishonoured and legal notice is issued. Though the same is served, there was no compliance nor reply. Therefore, complaint was filed under Section 138 of the Negotiable Instruments Act as per the complaint averments.

4. The learned Magistrate took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act and secured the presence of the accused. Plea was recorded and accused pleaded not guilty. Therefore, the trial was held.

5. In order to prove the case of the complainant, authorized representative of the complainant - Sri.Jackson George got examined as P.W.1 and relied on 16 documentary evidence which were exhibited and marked - 4 - NC: 2024:KHC:18941 CRL.RP No. 6 of 2021 as Exs.P.1 to Ex.P.16 comprising of original company resolution as Ex.P.1, original cheques as Exs.P.2 to 5, signatures of the accused as Exs.P.2(a) and 5(a), original bank memos as Exs.P.6 to Ex.P.9, office copy of the legal notices as Exs.P.12 and Ex.P.13, certified copy of the ledger account as Ex.P.14, original tax invoices as Ex.P.15 and E-mail print outs at Exs.P.16, 16(a) and 16(b).

6. There was no evidence placed on record on behalf of the accused either by examining himself or producing any material documents.

7. Thereafter, the accused's statement as contemplated under Section 313 of Cr.P.C. was recorded and accused denied all the incriminatory materials.

8. Subsequent thereto, learned Magistrate heard the parties and on consideration of the material evidence placed on record, especially the dishonored cheques wherein the signature of the accused was found, drew the presumption available under Section 139 of the Negotiable - 5 - NC: 2024:KHC:18941 CRL.RP No. 6 of 2021 Instruments Act and convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and awarded the fine of Rs.13,58,327/- and out of which, Rs.13,53,327/- to be paid as compensation complainant and remaining Rs.5,000/- to be remitted to the State for defraying the expenses.

9. Being aggrieved by the same, the accused filed an appeal before the First Appellate Court in Criminal Appeal No.375/2019.

10. Learned Judge in the First Appellate Court after securing the records and hearing the parties in detail, reappreciated the material evidence on record, dismissed the appeal vide order dated 10.08.2020.

11. Being aggrieved by the same, the revision petitioner is before this Court.

12. Learned counsel for the petitioner reiterating the grounds urged in the revision petition contended that - 6 - NC: 2024:KHC:18941 CRL.RP No. 6 of 2021 there is a material defect in the legal notices issued at Exs.P.10 and Ex.P.11 wherein, it has been mentioned that apart from four cheques, the balance amount is to be paid by way of Demand Draft or RTGS or NEFT. Therefore, the cheques were not issued for the legally recoverable debt and sought for allowing the revision petition.

13. He also pointed out that P.W.1 did not posses proper authorization to file the complaint at the time of presenting the complaint which is a material defect and therefore, the complaint itself was not maintainable before the learned Trial Magistrate and sought for admitting the revision petition for further consideration.

14. Respondent has engaged the services of Sri.R.Ravi, learned counsel, who is absent today.

15. In the light of the arguments put forth on behalf of the revision petitioner, this Court perused the material on record meticulously. - 7 - NC: 2024:KHC:18941 CRL.RP No. 6 of 2021

16. On such perusal of the material on record, no doubt in Exs.P.10 and Ex.P.11, there is a mention that apart from four cheques, there are some other dues of the respondent - company with the petitioner. That itself would not be sufficient to hold that the cheques were not issued towards the legally recoverable debt.

17. Further, in order to establish what exactly is the amount due from the accused to the complainant, the accused should have entered the witness box to rebut the presumption available to the complainant inasmuch as there is no dispute of the four cheques came to be issued by the accused to the complainant and signature found there in as that of the accused. Therefore, the presumption drawn by the Trial Court under Section 139 of the Negotiable Instruments Act stood unrebutted and therefore, conviction of the accused for the aforesaid offence is perfectly justified.

18. Learned Judge in the First Appellate Court has reappreciated the above aspects of the matter and noted - 8 - NC: 2024:KHC:18941 CRL.RP No. 6 of 2021 the point that there is no contra evidence placed on record by the accused and rightly dismissed the appeal.

19. Insofar as authorization is concerned, the authorization is marked at Ex.P.1. The complainant is a company and therefore, authorization issued vide Ex.P.1 is just and proper.

20. Under such circumstances, there is no merit in any one of the grounds urged on behalf of the revision petitioner.

21. However, it is noticed that sum of Rs.5,000/- is ordered by the learned Trial Magistrate to the defraying expenses of the State.

22. Admittedly, lis is between the two private parties and therefore, no State machinery was involved. Therefore, imposition of Rs.5,000/- towards the State is unwarranted and same needs interference in this revision petition.

23. Accordingly, the following: - 9 - NC: 2024:KHC:18941 CRL.RP No. 6 of 2021 ORDER i. Revision petition is allowed in part. ii. While maintaining the order of conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, imposition of fine in a sum of Rs.13,58,327/- is modified to the extent of Rs.13,53,327/- and sum of Rs.5,000/- imposed as fine towards the State is hereby set aside. iii. Entire amount of Rs.13,53,327/- is to be paid as compensation to the complainant - company. Sd/- JUDGE KAV List No.: 1 Sl No.:24