IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE K.SOMASHEKAR CRIMINAL REVISION PETITION NO.278/2018 BETWEEN Sri Kantharaju S/o K R Thimmegowda Aged about 48 years Rat: Kanigere Village Bharathuru Post K Hoskote Hobli Alur Taluk Hassan – 573213.
(By Sri. N P Kallesh Gowda , Advocate) AND Sri Yathish Kumar S/o Lingaraju Aged about 44 years R/at: Hoskuru Village K Hoskote Hobli, Alur Taluk Hassan – 573213.
... Petitioner ... Respondent (By Sri. Roop Nandan .H.J, Advocate (Absent)) This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to, modify the order dated 16.01.2018 passed by the Hon’ble Civil Judge and JMFC., Alur in C.C.No.395/2014 and pass an order convicting the accused for the entire cheque amount i.e., Rs.2,00,000/- (Two Lakhs) with penalty.
This Criminal Revision Petition Coming on for Admission, this day, the court made the following:
ORDER This petition is filed by the petitioner/complainant challenging the judgment of conviction and order of sentence dated 16.01.2018 rendered by the Civil Judge and JMFC, at Alur in C.C.NO.395/2014 convicting the accused for the offence punishable under Section 138 of N.I.Act and sentencing to pay a fine of Rs.50,000/- and in default to pay the fine amount, to undergo SI for a period of six months and seeking modification of the sentence and to pass an order convicting the accused for the entire cheque amount.
2. Heard learned counsel for the petitioner/complainant. Counsel for the respondent is absent.
3. Petitioner/complainant filed a private complaint under Section 200 of Cr.P.C. against the respondent/accused alleging that the accused has committed offence punishable under Section 138 of N.I.Act. It is stated in the complaint that the accused had taken hand loan of Rs.2,00,000/- from the complainant to discharge his hand loans and for his family necessities on 24.2.2014. The accused assured that the loan amount will be repaid within one month from the date of loan and in this regard, issued a cheque towards discharge of the said liability for an amount of Rs.2,00,000/- in favour of the complainant. When the complainant presented the cheque before the Canara Bank, Rayarakoppalu Branch for encashment, the same was returned with an endorsement as “funds insufficient”. Thereafter notice was issued to the accused. Inspite of issuance of notice, the accused failed to repay the cheque amount. Hence, the complainant presented a private complaint under Section 200 Cr.P.C. before the Court below.
4. Subsequent to filing of complaint, cognizance of the offence was taken and sworn statement of the complainant was recorded by way of affidavit. The presence of accused was secured through summons and he was enlarged on bail. The substance of accusation was read over and explained to the accused, but he did not plead guilty and claimed to be tried.
5. In order to prove his case, complainant got examined himself as PW.1 and got marked documents as per Ex.P1 to Ex.P5. He also got examined another witness as PW.2. After completion of complainant’s evidence, incriminating statement under Section 313 Cr.P.C. was recorded but the accused denied the truth of the case of the complainant. On behalf of accused he himself got examined as DW.1 and got marked documents as Exs.D1 to D3. The court below after hearing the arguments advanced on both the sides and on appreciation of the oral and documentary evidence on record, passed the impugned judgment and order of sentence, convicting the accused for the offence punishable under Section 138 of the N.I.Act and sentenced him to pay fine of Rs.50,000/- and in default to pay the fine amount to undergo SI for a period of six months. Hence, this petition by the petitioner/complainant on various amongst other grounds.
6. Learned counsel for the petitioner contends that the order of conviction passed by the Court below only to the extent of Rs.50,000/- is not justifiable and unsustainable in the facts and circumstances of the case and requires to be modified. It is contended that the Court below ought to have convicted the accused for the entire cheque amount even after the petitioner proving his case in accordance with law and the Court below has not appreciated the admissions of the respondent with regard to the relationship and the documents produced pertaining to the cheque. The Court below without looking into the documents by only believing the evidence of the accused has come to conclusion that the complainant has misused the cheque. The Court below has failed to take note of the fact that if the accused had issued blank cheque, he could have given intimation to his Banker to stop payment but not taking any such steps by the accused establishes that he had borrowed hand loan of Rs.2 lakhs and hence, the accused is liable to be convicted for the entire cheque amount. On all these grounds, learned counsel for the petitioner seeks for allowing the petition and modify the judgment of conviction and order of sentence rendered by the Court below.
7. Having heard the learned counsel for the petitioner and having gone through the grounds urged in this petition, it is relevant to state that this petition is filed challenging the judgment and order of conviction and sentence rendered by the Civil Judge and JMFC, at Alur in C.C.No.395/2014. But against the said judgment, the recourse of law that is available to the petitioner is to file an appeal before the lower Appellate Court under proviso to Section 372 or Section 374 of Cr.P.C. seeking modification/enhancement of sentence held by the trial Court. Sections 372 and 374 reads as under:
“372. No appeal to lie, unless otherwise provide- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or any other law for the time being in force.
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court].
374. Appeals from convictions-
(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years 2[has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.
(3) Save as otherwise provided in sub- section (2), any person,-
(a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or (b) sentenced under section 325, or (c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session Therefore, it is said that the complainant/petitioner who has sought for modification/enhancement of the sentence passed by the trial Court, has to seek his remedy before the lower Appellate/revisional court at the first instance, by challenging the impugned judgment which is found to be inadequate.
Accordingly, this criminal revision petition is disposed of with a liberty to the petitioner/complainant to approach the jurisdictional Appellate Court/District and Sessions Court seeking modification/enhancement of the impugned sentence passed by the trial Court in C.C.No.395/2014, in accordance with law.
DKB Sd/- JUDGE