SOMASHEKHARAPPA v. D M DINESH

CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL ORDER Heard Sri Ravishankar, advocate Sri A.V.Gangadharappa, learned counsel for the revision petitioner and Sri Bharath Muralidhara, advocate for Sri Kashyap N Naik, learned counsel for the respondent.

Accused who suffered an Order of conviction for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, in C.C.No.390/2011 dated 28.10.2015 on the file of the Addl. Civil Judge and JMFC, Arasikere, confirmed in Crl.A.No.179/2015 dated 01.12.2016 on the file of the III Addl. District and Sessions Judge, Hassan, is the revision petitioner.

Facts of the case in brief which are utmost necessary for disposal of the present revision petition are as under: A complaint came to be lodged under Section 200 of the Code of Criminal Procedure by the complainant seeking action against the accused for the offence punishable under Section - 3 - NC: 2024:KHC:50897 CRL.RP No. 1589 of 2016 138 of the Negotiable Instruments Act, 1881, contending that accused and complainant are acquainted with each other and in that connection, accused in order to construct a house, borrowed a sum of Rs.50,000/- on 16.12.2007 as hand loan from the complainant with a promise to repay the same within a short span of time.

However, accused failed to repay the said sum and ultimately, issued a cheque bearing No.611471 dated

19.03.2008 drawn on Canara Bank, D.M.Kurke Branch, in a sum of Rs.50,000/-.

The said cheque, on presentation, came to be dishonoured with an endorsement ‘funds insufficient’. Therefore, necessary notice was issued to the accused intimating the fact of dishonor of cheque and demanding the amount covered under the cheque. There was no reply from the accused to the callings of the notice nor was there any compliance, resulting in the complainant seeking action against the accused. - 4 - NC: 2024:KHC:50897 CRL.RP No. 1589 of 2016

Learned Trial Judge, after complying with the necessary formalities, summoned the accused and recorded the plea. Accused pleaded not guilty and therefore, trial was held.

In order to prove his case, complainant got examined himself as P.W.1 and placed on record twelve documents which were exhibited and marked as Exs.P.1 to P.5, comprising of dishonoured cheque, endorsement issued by Canara Bank, legal notice, postal receipt and postal acknowledgment.

Detailed cross-examination of P.W.1 did not yield any positive material so as to disbelieve the version of P.W.1 nor to dislodge the presumption available to the complainant under Section 139 of the Negotiable Instruments Act, 1881.

Thereafter, accused statement as is contemplated under Section 313 of the Code of Criminal Procedure was recorded by the learned Trial Judge wherein, accused has denied all the incriminatory materials.

In order to rebut the presumption available to the complainant under Section 139 of the Negotiable Instruments Act, 1881, accused did not place any rebuttal evidence nor any - 5 - NC: 2024:KHC:50897 CRL.RP No. 1589 of 2016 written statement as is contemplated under Section 313(4) of the Code of Criminal Procedure.

Taking note of these material evidence on record, learned Trial Judge after hearing the arguments of both sides, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and passed the sentence as under:

Acting under Section 255(2) Cr.P.C accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The accused shall undergo simple imprisonment for one year and also liable to pay a fine of Rs.70,000/-. Out of the fine amount the compensation of Rs.65,000/- shall be paid to the complainant as per Section 357 (1)(b) of Cr.P.C. In default of the payment of the fine amount, the accused shall undergo a simple imprisonment for six months. The remaining amount shall go to the State.

Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A.No.179/2015.

Learned Judge in the First Appellate Court after securing the records, heard the parties in detail and on re-appreciation of the material evidence on record, dismissed the appeal of the - 6 - NC: 2024:KHC:50897 CRL.RP No. 1589 of 2016 accused and confirmed the judgment passed by the learned Trial Judge.

Being further aggrieved by the same, accused is before this Court in this revision petition challenging the validity of the order of conviction.

Learned counsel revision petitioner Sri Ravishankar, reiterating the grounds urged in the revision petition, vehemently contended that there was no lending capacity to the complainant which has not been properly appreciated by the learned Trial Magistrate while raising the presumption in favour of the complainant under Section 139 of the Negotiable Instruments Act, 1881, more so, having regard to the admission made by P.W.1 in the cross-examination that accused does not know English language and entire writings except the signature in Ex.P.1-cheque that of complainant resulting in miscarriage of justice and sought for allowing the revision petition.

As an alternate submission, learned counsel contended that in the event of this Court upholding the conviction and the - 7 - NC: 2024:KHC:50897 CRL.RP No. 1589 of 2016 fine amount, apart from the fine amount, simple imprisonment ordered by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court needs to be set- aside.

Per contra, Sri Bharath Muralidhara, learned counsel for the respondent supports the impugned judgment.

Having heard the arguments of both sides, this Court perused the material on record, meticulously.

On such perusal of the material on record, the following points would arise for consideration: (i) Whether the revision petitioner/accused makes out a case that the impugned judgments are suffering from legal infirmity and perversity and thus calls for interference? (ii) Whether the sentence is excessive. (iii) What Order?

REGARDING POINT No.1: In the case on hand, issuance of cheque and signature found therein is that of the accused is not in dispute. According to the accused, cheque has been misused. To establish the same, there is no contra evidence - 8 - NC: 2024:KHC:50897 CRL.RP No. 1589 of 2016 placed on record. No positive action has been taken by the accused against misuse of the cheque.

The accused had the benefit of services of a lawyer at the time of issuance of reply notice or at least when he defended the case before the Trial Court.

No normal prudent person would keep quiet if there is misuse of cheque that too, to the tune of Rs.50,000/-.

Taking note of these aspects of the matter and in the absence of any rebuttal evidence placed on record, learned Trial Magistrate recorded an order of conviction against the accused.

No doubt even without stepping into the witness box, accused can establish before the Court through material on record including cross-examination of the complainant that the offence under Section 138 of the Negotiable Instruments Act, 1881, has not been committed, in terms of the principles of law enunciated in the case of Rohitbhai Jivanlal Patel vs. State of Gujarat and another reported in (2019)18 SCC 106. - 9 - NC: 2024:KHC:50897 CRL.RP No. 1589 of 2016

But in the case on hand, the suggestion made to the complainant that he has concocted the cheque and then got dishonoured and misappropriated the same having not been established by the accused, principles of law in the case of Rohitbhai would not be applicable.

Accordingly, Order passed by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court needs no interference and accordingly, point No.1 is answered in the negative.

REGARDING POINT No.2: This Court has noted that apart from ordering Rs.70,000/- as compensation, learned Trial Magistrate has also ordered simple imprisonment which cannot be countenanced in law. Accordingly, same needs to be set- aside. Out of Rs.70,000/-, learned Trial Magistrate has ordered to pay Rs.65,000/- to the complainant as compensation and balance sum of Rs.5,000/- towards defraying expenses of the State. Ordering separate imprisonment and imposing fine of Rs.5,000/- cannot be countenanced in law. Accordingly, same needs modification. Hence, point No.2 is answered partly in the affirmative. - 10 - NC: 2024:KHC:50897 CRL.RP No. 1589 of 2016