Research › Search › Judgment

Karnataka High Court · body

2021 DIGILAW 325 (KAR)

Ajay Gupta, S/O Ram Avad Gupta v. Banakar Manjunath S/O Bheemeppa

2021-02-26

K.NATARAJAN

body2021
ORDER : 1. This criminal revision petition is filed by the petitioner/accused under Section 397 of the Code of Criminal Procedure, 1973, for setting aside the judgment of conviction and sentence dated 07.01.2019 passed by the learned Civil Judge and JMFC, Sandur, (hereinafter referred to as the ‘trial Court’) in CC No.621/2016 and upheld by the learned II Additional District and Sessions Judge, Bellary (hereinafter referred to as the ‘first appellate Court’), in Criminal Appeal No.9/2019 dated 30.09.2019 for having convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘NI Act’) and sentenced to undergo imprisonment for one year and to pay fine of Rs.5,000/-in default of payment of fine, to undergo simple imprisonment for one month and ordered that accused shall pay compensation of Rs.30,000/-to the complainant as contemplated under Section 357 of Cr.P.C. 2. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent. 3. The rank of the parties before the trial Court is retained for convenience. 4. The case of the complainant before the trial Court is that the accused had borrowed a loan of Rs.30,000/-from the complainant and to discharge the said loan, he issued a cheque bearing No.958956 dated 30.05.2016 and when the same was presented for encashment, it was dishonoured with an endorsement “funds insufficient” and a legal notice was issued to the accused on 05.07.2016 but the accused gave vague reply. Hence, a complaint came to be filed under Section 138 of NI Act. After cognizance, the trial Court secured the presence of the accused. The accusation was read over to the accused. He has denied the same and pleaded not guilty. The complainant in support of his case examined himself as PW-1 and got marked 5 documents and after completion of evidence, statement of the accused under Section 313 of Cr.P.C. was recorded. The case of the accused is one of total denial and he himself examined as DW-1. After hearing the arguments, the trial Court found the accused guilty and convicted and sentenced as stated supra. Assailing the same, the accused approached the first appellate Court which also came to be dismissed confirming the judgment of conviction and sentence passed by the trial Court. Hence, the accused is before this Court. 5. After hearing the arguments, the trial Court found the accused guilty and convicted and sentenced as stated supra. Assailing the same, the accused approached the first appellate Court which also came to be dismissed confirming the judgment of conviction and sentence passed by the trial Court. Hence, the accused is before this Court. 5. Learned counsel for the petitioner contended that the judgment of both the Courts below is not sustainable. There is material contradictions in the evidence of PW-1 and the documents. There is no document produced to show that the amount has been actually borrowed by the accused. The cheque was given to the complainant much earlier to the said date but the same was misused by the complainant and the same is not considered by the trial Court and the first appellate Court. However, the learned counsel alternatively argued that sentence imposed by the trial Court, both, imposing imprisonment as well as fine, is too harsh and disproportionate to the offence committed. Therefore, prayed for modification of the sentence by imposing fine alone. 6. Per contra, the learned High Court Government Pleader supported the judgment of conviction and sentence passed by both the Courts below and contended that the accused borrowed money and issued a cheque which is not in dispute, the signature is also not in dispute. Such being the case, the question of disbelieving the evidence of PW-1 does not arise. Presumption under Section 139 of NI Act is in favour of the complainant. However, there is no illegality committed by both the Courts below in passing the judgment of conviction and sentence. Hence, prayed for dismissing the petition. 7. Upon hearing the arguments of the learned counsel for the parties, and on perusal of the records, it is clear that the relationship between the parties is not in dispute. The accused has also not disputed issuance of cheque to the complainant and the evidence of PW-1 and Exs.P-1 to P-5 documents, the cheque and notice corroborates with the evidence of PW-1. Though DW-1/accused examined himself and stated that there is no such due payable by the accused but no documents are produced or examined any witnesses. Therefore, the contention of the accused was not accepted by the trial Court. The trial Court after appreciation of the evidence on record, has rightly come to the conclusion that offence is committed by the accused. Therefore, the contention of the accused was not accepted by the trial Court. The trial Court after appreciation of the evidence on record, has rightly come to the conclusion that offence is committed by the accused. Therefore, the concurrent findings of both the courts below are not required to be interfered with. The finding of conviction does not require reconsideration. However, in respect of the sentence passed by the trial Court is one year imprisonment and fine of Rs.5,000/-. The offence under Section 138 of NI Act provides imposing imprisonment up to two years and to pay fine double the cheque amount or with both. Here in this case, the cheque amount is only Rs.30,000/-and in my considered opinion, imposition of both imprisonment and fine is little bit harsh and disproportionate to the offence committed by the accused. Therefore, the sentence of imprisonment requires to be set aside and modified. 8. Accordingly, I pass the following order. The Criminal Revision Petition is allowed in part. The judgment of conviction dated 07.01.2019 passed by the learned Civil Judge and JMFC, Sandur, in CC No.621/2016 and upheld by the learned II Additional District and Sessions Judge, Bellary, in Criminal Appeal No.9/2019 dated 30.09.2019 is hereby confirmed. However, the sentence imposed by the trial Court is hereby set aside and modified as under: The petitioner/accused is sentenced to pay fine of Rs.35,000/-and in default of payment of fine, the petitioner shall undergo imprisonment for one month. Fine amount shall be paid within two weeks from the date of receipt of a copy of this order. The amount if any deposited shall be adjusted. Out of the fine amount collected, Rs.30000/-shall be paid to the complainant as compensation as contemplated under Section 357 of Cr.P.C. The amount in deposit before this Court is ordered to be released in favour of the respondent/complainant on due identification.