SRI. P.N. MANJUNATH v. SRI. B. RAMANA

ORDER Heard Sri.Vinod Kumar, learned counsel appearing on behalf of Sri.Hari Prasad N., learned counsel for the revision petitioner and Sri.Ajay N., learned counsel appearing on behalf of Sri.Mithun G. A., learned counsel for the respondent.

2. The present revision petition is filed by the revision petitioner challenging the order of conviction and sentence passed in CC No.18858/2017 dated 08.01.2020 - 3 - NC: 2024:KHC:25912 CRL.RP No. 1229 of 2021 file of XVIII Additional Chief Metropolitan Magistrate, Bengaluru which was confirmed in Criminal Appeal No.168/2020 dated 21.10.2021 on the file of LXV Additional City Civil and Sessions Judge, Bengaluru for the offence punishable under Section 138 of the Negotiable Instruments Act.

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

3.1. Criminal prosecution was launched by the complainant against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act by contending that accused has borrowed sum of Rs.9,00,000/- in the year 2008 from the complainant with a promise to repay with 18% interest.

3.2. After repeated demands, accused issued five cheques in a sum of Rs.5,00,000/- and sum of Rs.4,00,000/- at the time of vacating the apartment was - 4 - NC: 2024:KHC:25912 CRL.RP No. 1229 of 2021 readjusted. Among those five cheques, the cheque in issue marked at Ex.P.1 is also one such cheque.

3.3. The settlement in this regard was recorded in writing which is part of the case papers marked at Ex.P.8 dated 31.12.2016. The said cheque was presented for encashment which was dishonored with an endorsement ‘funds insufficient’. Thereafter, legal notice was issued. There was no compliance to the callings of the legal notice but an untenable reply came to be issued by the accused whereby, complainant sought for action against the accused.

4. The learned Trial Magistrate after taking cognizance, secured the presence of the accused and 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 and relied on six documentary evidence on record which were exhibited and - 5 - NC: 2024:KHC:25912 CRL.RP No. 1229 of 2021 marked as Exs.P.1 to Ex.P.18 comprising of cheque as Ex.P.1, signature of the accused as Ex.P.1(a), bank endorsement as Ex.P.2, office copy of the demand notice Ex.P.3, postal receipt Ex.P.4, postal acknowledgement as Ex.P.5, RPAD covr as Ex.P.6, reply notice as Ex.P.7, letter as Ex.P.8, pass book as Ex.P.9, bank statement as Ex.P.10, acknowledgement as Ex.P.11, complaint as Ex.P.12, FIR as Ex.P.13, charge sheet as Ex.P.14, cheque return memo as Ex.P.15, letter to bank as Ex.P.16, copies of bank receipts as Ex.P.17 and copy of membership form as Ex.P.18.

6. Cross-examination of P.W.1 in detail, did not yield any positive materials to advance the defence taken by the accused that the cheques were forcibly extracted by the complainant in the police station.

7. Further, if there was misuse of the cheque, no action has been taken on behalf of the accused against the complainant. Moreover, accused did not chose to examine - 6 - NC: 2024:KHC:25912 CRL.RP No. 1229 of 2021 himself nor placed any documentary evidence on record in advancing the theory of misuse of the cheque.

8. The learned Trial Magistrate recorded the accused statement as is contemplated under Section 313 of Cr.P.C. wherein, accused has denied all incriminatory circumstances.

9. Thereafter, learned Trial Magistrate heard the arguments in detail and after considering the oral and documentary evidence placed on record in a cumulative manner, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed fine in a sum of Rs.2,60,000/- as against the cheque amount of Rs.1,50,000/-, out of which sum of Rs.2,50,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.10,000/- is ordered to be paid as defraying expenses of the State.

10. Being aggrieved by the said order of conviction and sentence passed by the learned Trial Magistrate, the - 7 - NC: 2024:KHC:25912 CRL.RP No. 1229 of 2021 accused preferred an appeal before the First Appellate Court in Criminal Appeal No.168/2020.

11. The learned Judge in the First Appellate Court after securing the records and hearing the arguments, vide judgment dated 21.10.2021, dismissed the appeal and confirmed the order of conviction and sentence.

12. Being further aggrieved by the same, the accused is before this Court in this revision.

13. Reiterating the grounds urged in the revision petition, learned counsel for the revision petitioner vehemently contended there was no legally recoverable debt under Ex.P.1 and same is extracted forcibly in the police station which has not been properly appreciated by both the Courts and therefore, sought for allowing the revision petition.

14. He also pointed out that there is no explanation forthcoming on behalf of the complainant in respect of balance four cheques as per the Ex.P.8 i.e., letter and - 8 - NC: 2024:KHC:25912 CRL.RP No. 1229 of 2021 therefore, the case of the complainant is to be disbelieved by allowing the revision petition.

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

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

17. On such perusal of the material on record, the oral and documentary evidence placed on record would go to show that there was a settlement between the parties in respect of the occupation of one flat and sum of Rs.4,00,000/- to be adjusted towards the occupation charges at vacating the premises and towards balance sum of Rs.5,00,000/-, cheques in question were issued as per the settlement letter dated 31.12.2016 marked at Ex.P.8.

18. The cheque in question is one such cheque that has been mentioned in Ex.P.8. Admittedly, the same is dishonored with an endorsement ‘funds insufficient’. - 9 - NC: 2024:KHC:25912 CRL.RP No. 1229 of 2021 Therefore, the material on record was not sufficient enough to raise the presumption under Section 139 of the Negotiable Instruments Act which has been rightly raised by learned Trial Magistrate by convicting the accused confirmed by the First Appellate Court.

19. Accordingly, this Court, that too, in the revisional jurisdiction does not find any good grounds to interfere with the impugned orders more so, having regard to the fact that accused has not taken any positive action for the alleged misuse of the cheque. Accordingly, order of conviction needs to be maintained.

20. However, both the Courts have misdirected themselves in directing sum of Rs.10,000/- to be paid as defraying expenses of the State which is impermissible having regard to the fact that lis is privy to the parties and no State machinery is involved.

21. As such, to that extent, this Court needs to interfere in the revisional jurisdiction. - 10 - NC: 2024:KHC:25912 CRL.RP No. 1229 of 2021

22. 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.2,60,000/- is modified to the sum of Rs.2,50,000/- and sum of Rs.10,000/- imposed as fine towards the State is hereby set aside. iii. Entire amount of Rs.2,50,000/- 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. - 11 - NC: 2024:KHC:25912 CRL.RP No. 1229 of 2021 v. Accused is granted time till 31.07.2024 to pay the balance fine amount. Sd/- JUDGE KAV List No.: 1 Sl No.: 45 CT: BHK