Research › Search › Judgment

Karnataka High Court · body

2024 DIGILAW 58 (KAR)

Shankar Nayak v. Naveen Kumar V. J.

2024-01-19

G.BASAVARAJA

body2024
ORDER : (G. Basavaraja, J.) This revision petitioner had preferred this revision petition against the judgment of conviction and order of sentence passed by the XXII Additional Chief Metropolitan Magistrate, Bangalore City in C.C.No.10589/2015 dated 25.02.2016 (for short hereinafter referred as 'trial Court'), which is modified by the LXIII Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.306/2016 dated 13.03.2017 (for short hereinafter referred as 'Appellate Court'). 2. The rank of the parties in this petition are referred to as per their status before the trial Court. 3. Brief facts of the complainant's case are that: The complainant and accused are known to each other. The accused being the owner/proprietor of Sri Ganesh Travels situated at Nagasandra circle, Basavanagudi, Bangalore, taking undue advantage of the friendship, the accused approached the complainant during the month of July, 2012 for financial assistance of Rs.2,00,000/- for the purpose of day to day necessities and also to improve his travels business. The complainant understood the difficulties and paid a sum of Rs.2,00,000/- as a hand loan by way of cash on 30-08-2012. At time of receiving the said amount, the accused has executed a debt agreement dated 30-08-2012 in favour of the complainant and he also assured to the complainant that he will repay the said amount within six months to one year only. After completion of six months, complainant had approached and demanded the accused to repay the said hand loan amount but the accused postponed the same to one or the other pretext. After repeated requests and demands made by the complainant finally he got issued cheque bearing No.127313 dated 11-02-2015 drawn on ICICI Bank Limited, Jayanagar branch, Bangalore for a sum of Rs.2,00,000/-. The complainant presented the said cheque for collection but the said cheque returned with an endorsement Drawers signature differs dated 13-2-2015. The complainant informed the accused about the return of the said cheque and to the said information, the accused had taken back the said cheque and issued another post dated cheque bearing No. 127315 dated 27-2-2015 for a sum of Rs.2,50,000/- drawn on ICICI Bank Limited, Jayanagar branch, Bangalore. The complainant presented the above said cheque for collection on 27-2-2015 through his bank of ICICI Bank, Chemrajpet branch. But the above said cheque also returned dishonoured with shara as funds insufficient vide endorsement dated 28-2-2015. The complainant presented the above said cheque for collection on 27-2-2015 through his bank of ICICI Bank, Chemrajpet branch. But the above said cheque also returned dishonoured with shara as funds insufficient vide endorsement dated 28-2-2015. Thereafterwards, the complainant got issued legal notice on 11-03-2015 to both residential address and office address of accused, calling upon the accused to pay the cheque amount. The notice sent by RPAD was served to the accused. Inspite of receipt of legal notice, he did not replied or complied the notice. Thus, accused has committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I.Act'). 4. After cognizance, case was registered in C.C.No.10589/2015, summons was issued to the accused and in response to the same, accused appeared before the Court and contested the case by denying the entire case of complainant at the time of recording of plea of accusation. 5. To prove the guilt of the accused, the complainant- Naveen Kumar examined himself as PW.1 and got marked 18 documents as Exs.P1 to P18. On closure of complainant side evidence, statement of accused under Section 313 of Cr.P.C. was recorded. Accused had totally denied the entire case of complainant and in support of his denial, he chosen to adduce oral evidence as DW.1 and got marked one document i.e., statement of account as Ex.D1. 6. On hearing the arguments on both sides, the trial Court convicted the accused for the commission of offence punishable under Section 138 of the N.I.Act and sentenced to pay a fine of Rs.1,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of one month and the complainant was awarded compensation of Rs.5,00,000/- i.e., double the cheque amount and the same shall be paid to the complainant by the accused within 30 days from the date of judgment. 7. Being aggrieved by the judgment of conviction and order of sentence, accused preferred an appeal before LXIII Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.306/2016. The appeal in Crl.A.No.306/2016 was partly allowed on 13.03.2017 and the judgment passed by XXII A.C.M.M., Bangalore in C.C.No.10589/2015 dated 25.02.2016 was confirmed. 7. Being aggrieved by the judgment of conviction and order of sentence, accused preferred an appeal before LXIII Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.306/2016. The appeal in Crl.A.No.306/2016 was partly allowed on 13.03.2017 and the judgment passed by XXII A.C.M.M., Bangalore in C.C.No.10589/2015 dated 25.02.2016 was confirmed. Further, said judgment of conviction and order of sentence was modified and accused was convicted for the offence punishable under Section 138 of the N.I.Act and sentenced to pay a fine of Rs.2,75,000/-, in default shall undergo simple imprisonment for a period of one year. Out of realization of the fine amount, an amount of Rs.2,70,000/- is awarded as compensation to the complainant. Remaining amount of Rs.5,000/- shall be remitted to the government as fine. Being aggrieved by the judgment of Appellate Court, this revision petitioner has filed this revision petition. 8. The learned counsel appearing on behalf of the revision petitioner/accused has submitted his arguments that, the impugned judgment passed by the trial Court as well as by the Appellate Court are not maintainable either under law and facts. Both the Courts have failed to appreciate the fact that at the time of loan transaction, the complainant has collected the blank cheques. Admittedly, the said documents are with the custody of the complainant. Thereafter, the complainant has filled up the cheque and after dishonor of the said cheque, the petitioner has paid an amount of Rs.2,10,000/- as against the loan taken by the petitioner but he has not returned the cheque on demand promissory note and subsequently the complainant has misused the said cheque, under the circumstance the question of again lending the loan by the complainant does not arise. Both the Courts have not properly appreciated the evidence on record in accordance with law and facts. Further, he submits that after filing this revision petition, the matter was settled between the parties for a sum of Rs.1,75,000/-. The accused has paid an amount of Rs.1,80,000/- on different dates. In this regard, receipts are already filed before this Court. Further, it was agreed between the parties that the deposited amount shall be returned to the accused. On all these grounds, learned counsel for the revision petitioner prays for allowing the revision petition. 9. Despite notice duly served on the respondent, he remained unrepresented. 10. In this regard, receipts are already filed before this Court. Further, it was agreed between the parties that the deposited amount shall be returned to the accused. On all these grounds, learned counsel for the revision petitioner prays for allowing the revision petition. 9. Despite notice duly served on the respondent, he remained unrepresented. 10. Having heard the arguments of the petitioner's counsel and on perusal of the records, the following points would arise for my consideration: (i) Whether the revision petitioner/accused had made out grounds to interfere with the impugned judgment of conviction and order of sentence modified by the LXIII Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.306/2016 dated 13.03.2017? (ii) What order? 11. My answer to the above points are as under: Point No.(1) : In the negative, Point No.(2) : As per final order. Regarding Point Nos.1 and 2: 12. I have carefully examined the materials placed before this Court. The trial Court convicted the accused for the commission of offence punishable under Section 138 of the N.I.Act and sentenced to pay a fine of Rs.1,000/-. In default of payment of fine, he shall undergo simple imprisonment for a period of one month. But the trial Court has also awarded compensation of Rs.5,00,000/- in favour of the complainant. Being aggrieved by the judgment of conviction and order of sentence, the accused has preferred appeal before the Appellate Court in Crl.A.No.306/2016. The same was partly allowed. It is appropriate to mention here the reasons assigned by the Appellate Court at Paragraph Nos.11 to 21, which reads as follows: "11. Point No.1 : After hearing the arguments of both advocates perused the records before the Court. It is the specific case of the complainant that, accused and complainant are good friends. Taking undue advantage of the friendship accused approached the complainant for financial assistance of Rs.2,00,000/- in the month of July 2012 to meet his necessities. Complainant paid Rs.2,00,000/- as hand loan by way of cash on 30.08.2012 and accused had executed a Debt agreement dated 30.08.2012 in favour of complainant. Accused assured that he will repay the said amount within 6 months to one year. After completion of 6 months complainant approached the accused to repay the loan amount. Accused was postponing the same. After repeated request and demand complainant issued cheque bearing No.127313 dated 11.02.2015 for a sum of Rs.2,00,000/- in favour of the complainant. Accused assured that he will repay the said amount within 6 months to one year. After completion of 6 months complainant approached the accused to repay the loan amount. Accused was postponing the same. After repeated request and demand complainant issued cheque bearing No.127313 dated 11.02.2015 for a sum of Rs.2,00,000/- in favour of the complainant. When the said cheque was presented to the bank for encashment it returned with an endorsement "Drawers Signature Differs" on 13.02.2015. Complainant informed the said fact to the accused and accused replaced the said cheque by giving fresh cheque bearing No.127315 dated 27.02.2015 for a sum of Rs.2,50,000/- in favour of the complainant. When complainant presented the said cheque on 27.02.2015 it was dishonored for the reason "Funds Insufficient". Thereafter complainant got issued legal notice on 11.03.2015 to the accused calling upon him to pay the cheque amount. The same was served on the accused. In spite of receipt of the same accused not paid the amount. Hence complainant lodged complaint. 12. In order to prove the case, complainant is examined as PW.1 and got exhibited Ex. P.1 to P.18 documents. Ex.P.1 is the cheque, Ex.P.2 and P.3 are bank endorsements, Ex.P.4 is office copy of the legal notice issued by complainant to accused, Ex.P.5 and 6 are postal receipts, Ex.P.7 and P.8 are postal acknowledgments, Ex.P.9 is Loan agreement, Ex.P.10 is statement of account and Ex.P.11 to P.18 are cheques. Accused examined before the court as DW.1 and Ex.D.1 marked. 13. Complainant in order to prove his case examined before the Court as PW.1. He reiterated the contents of the complaint before the Court. On perusal of cross examination of complainant and examination in chief and cross examination of accused it is very clear that, accused admitted that Ex.P.1 cheque belongs to him and signature appearing on Ex.P.1 cheque belongs to him. Then presumption arises in favour of the complainant regarding issuance of cheque by the accused for legally enforceable debt or liability. Of course the said presumption available to the complainant is a rebuttable presumption and accused has to rebut the said presumption by setting up probable defense. Even though lengthy cross examination is made by the accused to the complainant, absolutely no acceptable rebuttable evidence or admission is brought before the Court to disbelieve the version of the complainant. Except suggestion nothing has been brought before the Court. 14. Even though lengthy cross examination is made by the accused to the complainant, absolutely no acceptable rebuttable evidence or admission is brought before the Court to disbelieve the version of the complainant. Except suggestion nothing has been brought before the Court. 14. Defense of the accused is that, complainant not produced documents to show that he has capacity to advance the amount. Disputed Ex.P.1 cheque and other 9 cheques which were kept in the Travel office of the accused were stolen by the complainant and one of the cheques is Ex.P.1 and it is misused. Accordingly accused has led his evidence before the Court. It is also stated by the accused that, complainant used to receive amount from him oftenly and he used to return the said amount. Still complainant is due to the accused to the extent of Rs.40,000/-. Cross examination of PW.1 and accused clearly discloses that, there were financial transaction between accused and the complainant. In the cross examination of accused it is brought before the Court that, in the year 2013 he received amount from the complainant and given Ex.P.11 to P.18 cheques duly signed and filled in favour of the complainant. If at all complainant is not having capacity to pay the amount, accused could not have received the money from the complainant and issued cheques as per Ex.P.11 to P.18. As such contention of the accused that, bank statement is not produced before the Court and no documents produced before the court to show the financial capacity of the complainant, hence case of the complainant is doubtful cannot be accepted at all. Contention of the accused that source of income is not shown before the Court is also not fit to be considered. 15. It is contended by the accused that, complainant committed theft of 10 cheques which were kept in his Travel office duly signed for the purpose of business. If at all it is so, then what made the accused to keep quite without initiating legal action against the complainant is not made known. In the examination in chief accused stated that, he gave complaint to Thyagarajanagar police station. But no documents produced before the Court to show that, accused given complaint against the complainant before Thyagarajanagar police station for commission of theft of cheque belonging to accused. In the examination in chief accused stated that, he gave complaint to Thyagarajanagar police station. But no documents produced before the Court to show that, accused given complaint against the complainant before Thyagarajanagar police station for commission of theft of cheque belonging to accused. In the cross examination of accused dated 20.10.2015 he stated that, he has given complaint against the complainant before the police, but he has not produced any documents in support of the same. But in the cross examination dated 03.11.2015 accused stated that, he has not filed any complaint before the police for commission of theft of cheques by the complainant. So accused is not firm in the defense. No business man will keep signed blank cheques in his cash drawer of his travel agency. For the moment it is presumed that accused kept the signed cheques in the cash drawer definitely he will check the cash drawer daily to know whether cheques are intact or not. But it is not done in this case. As such contention of the accused that, complainant committed theft of cheques and Ex.P.1 is one of the cheques and it is misused by the complainant cannot be accepted at all. 16. Accused stated that, after receipt of notice of dishonouring of cheque he came to know about the commission of theft of cheques by complainant. Accused could have initiated legal action against the complainant and issued notice to the complainant stating that he has committed theft of cheque and misused it. But it is not done so. What prevented the accused to issue reply notice to the complainant by setting up his defense is not made known. Contention of the accused is that, only after receipt of dishonoring of cheque notice he came to know that, his cheques were subjected to theft has no force at all. Hence contention of the accused that, Ex.P.1 cheque is one of the cheques which was thefted from his office cannot be acceptable at all. In the cross examination accused stated that, his wife and son have received the notice of cheque bounce and informed regarding contents of the notice. Accused could have replied to the notice. But what made the accused to keep quite is not made known. 17. In the cross examination accused stated that, his wife and son have received the notice of cheque bounce and informed regarding contents of the notice. Accused could have replied to the notice. But what made the accused to keep quite is not made known. 17. When accused admits his signature on Ex.P.1 cheque and Ex.P.1 cheque belongs to the accused, then in view of the principles laid down in Rangappa v. Mohan case, presumption available to the complainant regarding issuance of cheque by the accused towards legally enforceable debt. Rebuttable evidence set up by the accused to rebut the presumption is not acceptable one. In the cross examination accused admits that, in the year 2013 he received advance from the complainant and towards payment of the said amount he issued 8 cheques duly signed. If complainant is in the habit of misusing the cheque, the complainant could have submitted the said cheques to the bank for realization. But it is not done so. So contention of the accused that, he has not issued Ex.P.1 cheque towards legally enforceable debt cannot be accepted at all. Accused could have examined his son who sits in the Travel office. But he has not done so. 18. Accused argued that in the cross examination complainant admits that he has received Rs.20,000/- on 09.05.2013 through cheque, but complainant not produced the documents for chit business. The arguments are not acceptable one. Because Chit business is not the subject matter of the complainant. Complainant gave answer to the question posed by the accused in the cross-examination. Hence production of documents no where damage the case of the complainant. Accused drawn the attention of the court to Ex.P.9 document and argued that in Ex.P.9 it is shown that karnataka Bank cheque is issued and land is shown as security. But it is not so in this case. Even if Ex.P.9 is ignored or not taken into consideration then also other evidence available before the Court is sufficient to disbelieve the contention of accused. Of course complainant admitted in the cross examination that there is difference in the signature of the ink in the cheque and other writings of Ex.P.1 cheque. It itself is not sufficient to disbelieve the case of the complainant. Section 20 of N.I.Act provides right to the holder in due course of the cheque to complete the incomplete Negotiable instrument. Of course complainant admitted in the cross examination that there is difference in the signature of the ink in the cheque and other writings of Ex.P.1 cheque. It itself is not sufficient to disbelieve the case of the complainant. Section 20 of N.I.Act provides right to the holder in due course of the cheque to complete the incomplete Negotiable instrument. Under such circumstances if Negotiable instrument issued in favour of complainant is completed then there will be no any fault. It cannot be considered as a material alteration in the cheque. Much discussion on other facts is not necessary. Complainant also stated before the court in the cross examination that since the earlier cheque issued by the accused returned as signature differs, accused in order to fulfill the damage given cheque for Rs.2,50,000/-. Non showing of the same in the complaint and notice is not fatal to the case of complainant. Contents of Ex.D.1 is not sufficient to disbelieve the case of complainant. Because already it is brought before the court that other than the transaction of the cheque in question, there are also other transaction between complainant and accused which is clear from the cross examination of accused. 19. Trial Court after considering the evidence and documents produced before the Court, rightly come to the conclusion that accused committed the offence punishable Under Section 138 of the N.I.Act and evidence given by the accused is not sufficient to rebut the presumption arises in favour of the complainant. Accordingly, I find no acceptable grounds to interfere in the judgment given by the Trial Court. No interference is required in the judgment of the Trial Court. Hence this Court is of the opinion that Trial Court is justified in convicting the accused on the basis of evidence and documents available before it. Accordingly Point No.1 is answered in the Negative. 20. Point No.2 : In view of the discussion made above and the findings given on point No.1, this Court comes to the conclusion that order of conviction passed by the trial court on the accused is justified. Trial court not given proper reasons for awarding compensation to the extent of double the cheque amount. I feel out of the fine amount compensation is to be awarded to the complainant. Trial court not given proper reasons for awarding compensation to the extent of double the cheque amount. I feel out of the fine amount compensation is to be awarded to the complainant. Maximum sentence that can be imposed by the Magistrate on the accused for the offence punishable Under Section 138 of the N.I.Act is imprisonment for a term which may extend to 2 years or with fine, which may extend to twice the amount of cheque or with both. In this case cheque amount is Rs.2,50,000/-. Trial court imposed fine of Rs.1,000/- and compensation of Rs.5,00,000/-. Total comes to Rs.5,01,000/-. Learned Magistrate is not empowered to impose the fine and compensation amount more than double amount of cheque. Hence, I am of the opinion that the order of imposing fine and awarding compensation is not in conformity with Section 138 of the N.I.Act. In this case it is brought before the Court that there are financial transactions between complainant and the accused. Taking into consideration of the facts of the case, I am of the opinion that the compensation amount awarded by the trial court is on the higher side. Hence, I feel it is just and proper to modify the same. Accordingly, I am of the opinion that imposition of fine and awarding compensation is not in accordance with law and interference of this court is required in this same. Hence, Point No.2 is answered in the Affirmative. 21. Point No.3 : In view of the findings given on Point No.1 and 2, I am going to pass the following: ORDER 1. Appeal preferred by the appellant/accused against judgment passed by XXII A.C.M.M., Bangalore, in C.C.No.10589/2015 dated: 25.02.2016 is partly allowed. 2. Judgment of conviction passed by XXII A.C.M.M., Bangalore, in C.C.No.10589/2015 dated:25.02.2016 is confirmed. 3. However order imposing sentence of fine of Rs.1,000/- in default to undergo S.I. for two months and awarding compensation of Rs.5,00,000/- and in default to undergo S.I. for one year for the offence punishable Under Section 138 of the N.I.Act is set-aside and modified as under : Accused is convicted for the offence punishable Under Section 138 of the N.I.Act and sentenced to pay a fine of Rs.2,75,000/-, in default shall undergo S.I. for a period of one year. Out of realization of the fine amount, an amount of Rs.2,70,000/- is awarded as compensation to the complainant. Out of realization of the fine amount, an amount of Rs.2,70,000/- is awarded as compensation to the complainant. Remaining amount of Rs.5,000/- shall be remitted to the government as fine. 4. Office is directed to return the trial court records along with the copy of the judgment." 13. On re-appreciation/re-consideration and on re-examination of entire evidence on record, I do not find any infirmity/illegal in the judgment passed by the Appellate Court. Hence, I answer point No.1 in the negative. With regard to payment of amount paid by the accused/revision petitioner, the revision petitioner has filed a memo before this Court on 17.01.2024 along with copies of seven receipts. It is submitted by the petitioner's counsel that the matter was settled between the parties for a sum of Rs.1,75,000/-. But in the absence of respondent, this Court cannot decide as to the alleged payment made by the revision petitioner to the respondent. Hence, in this regard, the argument advanced on behalf of the petitioner's counsel cannot be accepted. For the aforesaid reasons and discussions, I proceed to pass the following: ORDER i. Revision petition filed by the revision petitioner is dismissed. ii. The Judgment of conviction and order of sentence passed by the LXIII Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.306/2016 dated 13.03.2017 is confirmed. iii. The Registry is directed to send copy of this order along with the memo appending copies of receipts filed by the petitioner's counsel on 17.01.2024 to the trial Court. iv. The trial Court is directed to adjudicate as to the payment of alleged amount as stated in the memo dated 17.01.2024 as per copies of receipts produced by the petitioner's counsel.