IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11TH DAY OF JUNE, 2024

BEFORE

THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION No.364 OF 2021

BETWEEN:

SRI M V KRISHNA SON OF VENKATESH, AGED ABOUT 61 YEARS, RESIDENT OF NO 1207/1, OPP RANGA RAO AND SONS M G ROAAD, K R MOHALLA MYSURU CITY 570024

…PETITIONER

(BY SRI. PREMKUMAR C S., ADVOCATE)

AND:

Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA MANCHEGOWDA SON OF BOREGOWDA, AGED AOUT 68 YEARS, RESIDENT OF DODDEGOWDANA KOPPALU VILLAGE, BANNIKUPPE POST, HUNSURU TALUK, MYSORE DISTRICT 571105

…RESPONDENT

(BY SRI. B.S. SUDHINDRA ., ADVOCATE)

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE APSSED BY ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HUNSUR IN C.C.NO.988/2014 DATED 14.03.2018 CONVICTING THE PETTIONER FOR THE OFFENCE P/U/S 138 OF N.I ACT, CONFIRMED BY THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU SITTING AT HUNSUR IN CRL.A.NO.74/2018 BY JUDGMENT AND ORDER DATED

29.10.2020, AND ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I ACT AND ETC.

THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Heard Sri Premkumar C.S., learned counsel for the revision petitioner.

2. None present on behalf of the respondent.

3. Revision petition is by the accused who suffered an order of conviction for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.988/2014 dated 14.03.2018 on the file of the Addl. Senior Civil Judge and JMFC, Hunsur, which is confirmed in Crl.A.No.74/2018 dated 29.10.2020 on the file of the VIII Addl. District and Sessions Judge, Mysuru, sitting at Hunsur.

4. Facts in brief which are utmost necessary for disposal of the revision petition are as under:

Complainant approached the jurisdictional Magistrate with a complaint against the accused stating that the cheque issued by him towards repayment of legally recoverable debt came to be dishonoured and he has issued a legal notice which is not complied, but an untenable reply has been received and sought for action.

5. Learned Trial Magistrate after taking cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, secured the presence of the accused and recorded the plea. Accused pleaded not guilty and therefore, trial was held.

6. In order to prove his case, complainant got himself examined as P.W.1 and placed on record fifteen documentary evidences which were exhibited and marked as Exs.P.1 to P.15.

7. As against the evidence placed on record by the complainant, accused got examined himself as D.W.1. No documentary evidence was placed on record on behalf of the accused.

8. Accused statement as contemplated under Section 313 of the Code of Criminal Procedure was recorded, wherein, accused denied all the incriminating circumstances adduced against him.

9. Thereafter, learned Trial Magistrate heard the parties and by considering the oral and documentary evidence placed on record, convicted the accused for the aforesaid offence and imposed fine of Rs.2,05,000/- of which Rs.2,00,000/- was ordered to paid as compensation to the complainant and balance sum of Rs.5,000/- was awarded as defraying expenses to the State.

10. Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Crl.A.No.74/2018.

11. Learned Judge in the First Appellate Court secured the records and after hearing the arguments in detail, dismissed the appeal filed by the accused. Thereafter, accused is before this Court in this revision petition.

12. Learned counsel for the revision petitioner, reiterating the grounds urged in the revision petition, contended that both the Courts have not properly appreciated the material evidence on record and in fact, that the cheque issued in favour of one Channegowda about six years earlier has been misused by the complainant and thereafter, a false case has been hoisted and

therefore, accused is entitled for an order of acquittal by allowing the revision petition.

13. Learned counsel for the respondent is absent today.

14. In the light of the arguments putforth on behalf of the revision petitioner, this Court perused material placed on record, meticulously.

15. On such perusal of the material on record, it is crystal clear that there is no dispute as to the signature of the accused in Ex.P.1-cheque.

16. It is the specific case of the accused that cheque was issued in favor of one Channegowda and said Channegowda and the complainant have colluded together to deceive the accused and misused the cheque at Ex.P.1.

17. In order to advance the said plea of misuse, accused examined himself which is the self serving testimony. No other material evidence is placed on record. No positive action is also taken by the accused in respect of the alleged misuse of the cheque.

18. Reply notice is marked at Ex.P.6, which has been considered by the learned Trial Magistrate in the impugned judgment.

19. In the reply notice, there is a specific mention by the accused that when accused wanted to purchase the property from D.Chikkathayamma, complainant has taken the cheque from the accused.

20. Under such circumstances, the contention taken by the accused that it was handed over to Channegowda and then misused by the complainant cannot be countenanced in law.

21. When the complainant has specifically stated that the cheque was issued towards repayment of debt and marked the cheque and dishonour note, the initial burden cast on the complainant to raise the presumption in his favour under Section 139 of the N.I.Act has been discharged.

22. No doubt, it is a rebuttal presumption. Except the oral testimony of the accused, no other material is available on record to rebut the presumption.

23. Under such circumstances, conviction order passed by both the Courts is valid and cannot be interfered by this court in this revision petition.

24. Having said thus, learned Trial Magistrate has imposed fine of Rs.5,000/- towards defraying expenses to the State. Since the lis is privy to the parties and no State machinery is involved, sum of Rs.5,000/- fine imposed towards defraying expenses of the State cannot be countenanced in law. Same needs interference in this revision.

25. Accordingly, the following:

ORDER

• (i) Revision Petition is allowed in part.
• (ii) While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, fine amount imposed by the learned Trial Magistrate in a sum of Rs.2,05,000/- is reduced to Rs.2,00,000/-, and entire sum of Rs.2,00,000/- is ordered to be paid as compensation to the complainant and in default to

undergo simple imprisonment for a period of six months.

• (iii) Sum of Rs.5,000/- imposed towards defraying expenses to the State is hereby set-aside.
• (iv) Office is directed to return the Trial Court records with copy of this order, forthwith.
• (v) Time is granted to the accused to pay balance of the fine amount till 30th June 2024.

Sd/- JUDGE

kcm List No.: 1 Sl No.: 69