SMT. KALPANA v. SMT. SELVEE

revision petitioner and Sri. Nagabhushana R., learned counsel for the respondent.

Accused who suffered an order of conviction in CC No. 30587/2014 dated 02.01.2017 on the file of XVI ACMM, Bengaluru confirmed Crl.A.No.128/2017 dated 14.10.2019 on the file of LVI Addl. City Civil and Sessions Judge, Bengaluru (CCH-57) for the offence punishable under Section 138 of the Negotiable Instruments Act and directed to pay fine in a sum of Rs.7,00,000/-, out of which sum of Rs.6,85,000/- is ordered to be paid as compensation to the complainant and balance sum of Rs.15,000/- to be paid towards defraying expenses of the State, has preferred the present revision petition. - 3 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019

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

3.1. A complaint came to be filed under Section 200 of Cr.P.C. with the jurisdictional Magistrate alleging the commission of offence under Section 138 of the Negotiable Instruments Act by the complainant by contending that accused is a family friend of the complainant and she borrowed sum of Rs.5,00,000/- on 2nd week of April, 2014 for the purpose of completion of the construction of her house with a promise to repay the same within a short period of time.

3.2. Towards repayment of the said loan, accused issued a cheque bearing No.311705 dated 05.08.2014 in a sum of Rs.6,00,000/- which on presentation came to be dishonored with an endorsement ‘funds insufficient’.

3.3. Legal notice issued is not complied and untenable reply was sent. Therefore, complainant sought for action. - 4 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019

Learned Trial Magistrate after completing necessary formalities, summoned the accused and recorded the plea. Accused pleaded not guilty. Therefore, trial was held.

In order to prove the case of the complainant, complainant got examined herself as P.W.1 and relied on thirteen documents which were exhibited and marked as Exs.P.1 to Ex.P.13 comprising of dishonored cheque, bank endorsement, copy of the legal notice, postal receipts and acknowledgement, returned postal cover, complaint, loan agreement and certified copy of the order sheet and charge in Girinagar Police Station, No.63/2013. Complainant examined one more witness on her behalf as P.W.2. Through her, three gas bills were marked as Exs.P.11 to 13.

Detailed cross-examination of P.W.1 and P.W.2 did not yield any positive materials so as to disbelieve the version of the complainant nor to dislodge - 5 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019 presumption available to the complainant under Section 139 of the Negotiable Instruments Act.

The theory put forward by the accused that the cheque was issued in favour of Bhagyamma and same has been misutilized by the complainant remains suggestion on record in the absence of placing proper proof thereof and not taking any positive action for the alleged misuse.

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

In order to rebut the presumption available to the complainant, accused stepped into the witness box and got examined herself as D.W.1 and placed on record office copy of the legal notice, complaint, attested copy of the complaint and postal receipt. - 6 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019

In the cross-examination D.W.1, she admits the certified copy of the order sheet marked in Girinagar Police Station, Crime No.63/2013.

Thereafter, learned Trial Magistrate heard the parties in detail and on cumulative consideration of oral and documentary evidence on record, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed fine as referred to supra.

Being aggrieved by the same, accused filed an appeal before First Appellate Court Crl.A.No.128/2017.

Learned Judge in the First Appellate Court after securing the records, heard the parties in detail and dismissed the appeal of the accused.

Being further aggrieved by the same, accused is before this Court, in this revision. - 7 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019

Sri. Vijay Shetty B., learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused resulting in miscarriage of justice and sought for allowing the revision petition.

He pointed out that cheque was actually issued in favour of Bhagyamma. Complainant and Bhagyamma have colluded together and misused the cheque issued by the accused in favour of Bhagyamma. Therefore, there was no of legally recoverable debt under Ex.P.1 which has not been properly appreciated by the learned Trial Magistrate while raising the presumption under Section 139 of the Negotiable Instruments Act and sought for allowing the revision petition.

Per contra, Sri. Nagabhushana R., learned counsel for the respondent supports the impugned judgments. - 8 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019

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

On such perusal of the material on record, following points would arise for consideration:

Whether the revision petitioner establishes impugned orders are suffering from legal infirmity and perversity on account of patent factual error or jurisdictional error in passing the impugned orders?

2. Whether the sentence is excessive?

3. What order? REGARDING POINT No.1:

In the case on hand, issuance of the cheque and signature found therein is not in dispute. Accused has taken up the contention that the cheque was in fact issued in favour of Bhagyamma. Accused did not chose to summon Bhagyamma to establish said aspect of the matter.

Material on record would go to show that the cheque is dishonored on the ground of ‘funds insufficient’ and not on the ground that ‘payee name did not tally’. - 9 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019 Therefore, having regard to the material evidence placed on record especially the loan agreement and certified copy of the order sheet in Crime No.63/2013, the learned Trial Magistrate was justified in raising the presumption in favour of complainant as is contemplated under Section 139 of the Negotiable Instruments Act.

No doubt, such a presumption is a rebuttable presumption. In order to rebut the presumption available to the complainant, accused got examined herself as D.W.1. In her evidence, she did not place such evidence on record so as to rebut the presumption available to the complainant on record.

Theory put forward by the accused that the cheque has been misused is not probabilised by placing necessary material evidence on record. It is also pertinent to note that normal prudent person would keep quite if a cheque in a sum of Rs.6,00,0000/- is misutilized. Admittedly, no positive action has been taken by the accused as against Bhagyamma or against - 10 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019 complainant. Certified copy of the order sheet in Crime No.63/2013 of Girinagar Police Station marked at Ex.P.9 (which should have been marked as Ex.P.10) would go to show that revision petitioner was also accused in the said case and she was given to the police custody by the learned Trial Magistrate.

Further, in the cross-examination of D.W.1, she has admitted that she is facing one more criminal case filed by Nagarathnamma. D.W.1 also admits that she has repaid the loan in a sum of Rs.5,00,000/- to Bhagyamma and she has paid Rs.50,000/- and Rs.1,00,000/- in installments in the year 2013.

She further admits that there is a document to establish said fact; but no such document is produced. In other words, there is a specific plea taken by the accused that the cheque is misused by Bhagyamma in collusion with the complainant and to substantiate the said aspect, there is no material evidence on record. - 11 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019

Accordingly, conviction order passed by the learned Trial Magistrate confirmed by the First Appellate Court needs no interference by this Court in this revision. REGARDING POINT No.2:

As against cheque amount of Rs.6,00,000/-, learned Trial Magistrate has awarded fine in a sum of Rs.7,00,000/-, out of which sum of Rs.6,85,000/- is to be paid as compensation to the complainant and balance sum of Rs.15,000/- to be paid towards defraying expenses of the State.

Since, lis is privy to the parties and no State machinery is involved, awarding sum of Rs.15,000/- towards defraying expenses of the State would not arise and therefore, same needs interference by this Court, in this revision. Accordingly, point No.2 is answered partly in the affirmative. - 12 - NC: 2024:KHC:45607 CRL.RP No. 1328 of 2019 REGARDING POINT No.3: