MRS. SUJATHA SHETTY v. MR. ARUN KUMAR SHETTY

dated 01.12.2016 passed in Crl.A.No.54/2016 by the First Appellate Court.

#2. Heard the learned counsel for the petitioner. The counsel for the respondent is absent and in view of the order of this Court dated 28.01.2025, the matter is heard in his absence and hence, argument of the respondent’s side is taken as nil.

#3. The factual matrix of the case of complainant before the Trial Court that this petitioner had obtained a hand loan of Rs.2,00,000/- by the complainant through Cheque bearing No.865363 dated 18.04.2011 for Rs.55,000/- and Cheque bearing No.865369 dated

16.05.2011 for Rs.50,000/- drawn on Vijaya Bank, … and an amount of Rs.95,000/- by way of cash on 16.05.2011. - 3 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016 It is also contended that accused had issued a cheque for the said amount, in due of repayment thereof, vide Cheque bearing No.023125 dated 31.10.2012 drawn on Axis Bank Ltd.,, Mangalore for Rs.2,00,000/-. The said cheque have been dishonoured when presented for encashment with an endorsement ‘account closed’ and immediately, the complainant issued a legal notice on

15.11.2012 calling upon the accused to make the payment of the Cheque amount which was shown to have been duly served on the accused and the said notice was served on the accused, inspite of service of notice, the accused neither paid the amount nor replied to the said notice. Hence, the complaint was filed and cognizance was taken by the Trial Court for the offence punishable under Section 138 of NI Act and when accused did not plead guilty, the Trial Court allowed the parties to lead their evidence. In order to prove the case of the complainant, he himself examined as PW1 and got marked the documents at Ex.P1 to P6. On the other hand, the accused was subjected to 313 statement wherein she denied the incriminating - 4 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016 circumstances and by way of defence, she examined as DW1 and got marked the documents at Ex.D1 to D5. The Trial Court having taken note of the payment by way of cheques and cash and the same was not returned even though issuance of legal notice comes to the conclusion the complainant has proved his case and accused has not rebutted her case and hence, convicted and sentenced the accused for a fine of Rs.2,05,000/- and in default to pay fine amount, the accused shall undergo simple imprisonment for a period of six months. Being aggrieved by the said order, an appeal was preferred before the First Appellate Court in Crl.A.No.54/2016 wherein the First Appellate Court considering both oral and documentary evidence placed on record held that the complainant has paid only an amount of Rs.1,05,000/- by way of cheques and to prove the fact that he has paid the amount of Rs.95,000/- by way of cash, no material is placed on record and hence, comes to the conclusion that the liability the accused is only Rs.1,05,000/- and not Rs.2,00,000/- and hence, accepted the case of the - 5 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016 complainant for Rs.1,05,000/- and also taken note of the fact that the accused had paid an amount of Rs.49,000/- and Rs.10,000/- subsequent to Ex.P1 dated 31.10.2012 and modified the judgment of the Trial Court directing the accused to pay an amount of Rs.58.000/- to the complainant and Rs.2,000/- shall be credited to the Government account. Being aggrieved by the judgments of both the Courts, the present revision is filed before this Court by the accused.

#4. The main contention of the revision petitioner is that when the complainant claimed that he had made the payment of Rs.2 lakh to the accused, the First Appellate Court comes to the conclusion payment was made only to the tune of Rs.1,05,000/- and hence, legal liability is only Rs.1,05,000/- and hence, the complainant ought not to have presented the Cheque for Rs.2,00,000/-. In support of his arguments, he relied upon the judgment of the Apex Court reported in (2023) 1 SCC 578 in the case of DASHRATHBHAI TRIKAMBHAI PATEL vs HITESH - 6 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016 MAHENDRABHAI PATEL AND ANOTHER wherein the Apex Court held that issuance of Cheque as security, effect of part-payment of debt prior to presentation of Cheque for encashment, Section 138 whether would still be attracted when the drawer of the Cheque makes a part- payment towards the debt or liability after the Cheque is drawn but before the Cheque is encashed, for the dishonour of the Cheque which represents the full sum and principles also clarified that when a part-payment of the debt is made after the Cheque was drawn but before the Cheque is encashed, such payment must be endorsed on the Cheque under Section 56 and the Cheque cannot be presented for encashment without recording the part- payment, therefore, the unendorsed Cheque dishonoured on presentation, the offence under Section 138 would not be attracted since the Cheque does not represent a legally enforceable debt at the time of encashment. - 7 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016

#5. The counsel also brought to notice of this Court to paragraphs 16 and 20 of the said judgment wherein also discussion was made with regard to application of Section 138 of NI Act. The counsel, apart from this judgment, would vehemently contend that when the First Appellate Court comes to the conclusion that liability is only to the tune of Rs.1,05,000/-, the complainant ought not to have presented the Cheque for Rs.2,00,000/-, the very complaint ought to have been dismissed.

#6. Having heard the learned counsel appearing for the petitioner and also considered the material on record and the principles laid down in the judgment referred supra, the points that would arise for the consideration of this Court are:

#1. Whether the Trial Court committed an error in convicting and sentencing the accused for the fine of Rs.2,02,000/- the offence punishable under Section 138 of NI act and whether the First Appellate Court committed - 8 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016 an error in modifying the judgment of the Trial Court directing to pay an amount of Rs.60,000/- instead of dismissing complaint as contended by the counsel for the revision petitioner and whether this Court can exercise the revisional jurisdiction?

#2. What order? Point No.1

#7. Having heard the learned counsel for the petitioner and also on perusal of the material on record, it discloses that the case of the complainant is that he had advanced an amount of Rs.2,00,000/- and payments are made through two cheques to the tune of Rs.1,05,000/- and remaining amount of Rs.95,000/- by way of cash. In order to substantiate the same, the complainant contend that accused had issued the Cheque for Rs.2,00,000/- and same is also marked as Ex.P1. Issuance of Cheque is not in dispute and signature is also not in dispute and issuance of legal notice also not in dispute and same was also - 9 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016 served on the accused and the same is also not in dispute since acknowledgement for the same is produced as Ex.P4 but no reply was given by the accused and he did not deny the claim of the complainant. However, the complainant fails to prove the fact that he had paid the amount of Rs.95,000/- by way of cash and even though the Trial Court accepted the case of the complainant in coming to the conclusion that the legal notice which was issued, was not disputed by the accused for having advanced the loan of Rs.2,00,000/- and hence, convicted the sentenced the accused for an amount of Rs.2,02,000/-. But the First Appellate Court having re-assessed the material on record comes to the conclusion for having paid the amount of Rs.95,000/- by way of cash is concerned, no material is placed before the Court and hence, the First Appellate Court held that the liability is only Rs.1,05,000/- and modified the judgment of the Trial Court.

#8. The argument of the learned counsel for the petitioner before this Court is that once the First Appellate - 10 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016 Court comes to the conclusion that complainant has paid only an amount of Rs.1,05,000/- based on the two cheques for an amount of Rs.55,000/- and 50,000/-, ought to have been dismissed the very complaint itself and merely because the complainant has not placed any document before the Court for having made the payment of Rs.95,000/- is concerned, the very contention of the petitioner is that at the threshold, the complaint ought to have been dismissed cannot be accepted. The very claim of the complainant that he made the payment of Rs.95,000/- by way of cash and when Cheque was presented and same was dishonoured and immediately, legal notice was given and same was served but not replied denying the claim of the complainant. In terms of the judgment of the Apex Court reported in AIR 2010 SC 1898 in the case of RANGAPPA vs MOHAN, the Apex Court held that once the notice was given and the same was acknowledged and reply was not given, the Court has to take note of the said fact into consideration. - 11 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016

#9. It is important to note that the First Appellate Court comes to the conclusion that in order to prove the factum of payment of Rs.95,000/-, no documents are produced and discretion is exercised while re-appreciating the material on record and held that the complainant only paid the amount of Rs.55,000/- and 50,000/- by way of Cheques and comes to the conclusion legal liability is only Rs.1,05,000/- and with regard to payment of Rs.95,000/- by way of cash is concerned, the First Appellate Court the conclusion that not produced any documents. That does not mean that the complainant has not issued the Cheque for amount of Rs.2,00,000/- but the fact that Cheque was issued and not disputed that Cheque was given. However, the complainant has not questioned the order of the First Appellate Court by filing any appeal or revision against the finding of the First Appellate Court. When such being the case, the very contention of the petitioner counsel that once the Court comes to the conclusion that legal liability is only Rs.1,05,000/-, ought to have been dismissed the complaint cannot be accepted. - 12 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016

#10. The counsel for the petitioner relied upon the judgment of the Apex Court case of DASHRATHBHAI TRIKAMBHAI PATEL referred supra wherein the Apex Court discussed with regard to when a part-payment of the debt is made after the Cheque was drawn but before the Cheque is encashed, such payment must be endorsed on the Cheque. But in the case on hand, there is no endorsement. But no date is given for having made the part payment by the petitioner also whether it is before the presentation of Cheque or after presentation of Cheque and only on the admission of PW1 that he has received the amount of Rs.59,000/- only, the First Appellate Court has modified the judgment of the Trial Court. When such being the case, under the circumstances, the principles laid down in the case of DASHRATHBHAI TRIKAMBHAI PATEL referred supra is not applicable to the facts of the case on hand since no material is placed before the Court that before presentation of the Cheque, part payment was made and if - 13 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016 no such material is placed, this judgment will not comes to the aid of the petitioner’s counsel as contended. Hence, I do not find any ground to exercise the revisional jurisdiction and finding of the Trial Court in taking into note that notice was issued and same has not been replied disputing the same but the First Appellate Court re- assessed the material on record in a proper perspective in coming to conclusion that there was no material for having made the payment of Rs.95,000/- by way of cash and not accepted the case of the complainant with regard to payment of Rs.95,000/- is concerned. Hence, the very contention of the petitioner’s counsel that First Appellate Court ought to have dismissed the very complaint by allowing the appeal cannot be accepted. Hence, there is no legal infirmity in the order of both the Courts and hence, there are no grounds to exercise the revisional jurisdiction by this Court since the orders of both the Courts do not suffers from any legality or correctness. Hence, I answer the above point as negative. - 14 - NC: 2025:KHC:6107 CRL.RP No. 1641 of 2016 Point No.2

#11. In view of the discussions made above, I pass the following: ORDER The revision petition is dismissed. Sd/- (H.P.SANDESH) JUDGE SN