Karnataka High Court
Mr Dyani Anotony Paul vs Sri Anil Hegde on 16 April, 2026
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2026
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.782 OF 2023
(397(Cr.PC) / 438(BNSS)
C/W CRIMINAL REVISION PETITION No.858 OF 2023
IN CRL.RP No.782/2023
BETWEEN:
MR DYANI ANTONY PAUL
S/O LATE JOSEPH PAUL,
AGED ABOUT 40 YEARS,
R/AT NO.1-77, VAILANKANNI COTTAGE,
MURODY ROAD,
PADAVINANGADY, KONCHADY POST,
MANGALURU-575 008.
...PETITIONER
(BY SRI RAJASHEKAR.S, ADVOCATE)
AND:
SRI ANIL HEGDE
S/O BHASKAR HEGDE,
Digitally AGED ABOUT 60 YEARS,
signed by R R/AT FLAT NO.1102, SAI PALACE,
MANJUNATHA BALLALBAGH
Location: MANGALURU-575 008.
HIGH COURT
OF ...RESPONDENT
KARNATAKA (BY SRI DINESH KUMAR RAO.K, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE
PRAYING TO SET ASIDE THE PORTION OF THE JUDGMENT
DATED 01.04.2023 PASSED IN CRL.A.NO.102/2021 ON THE
FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
D.K., MANGALURU, BY WHICH THE ORDER DATED 09.08.2021
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
PASSED IN C.C.NO.6784/2019 ON THE FILE OF THE J.M.F.C IV
COURT CAME TO BE MODIFIED.
IN CRL.RP No.858/2023
BETWEEN:
MR ANIL HEGDE
S/O LATE BHASKAR HEGDE,
AGED ABOUT 59 YEARS,
R/AT FLAT NO.1102,
SAI PALACE, BALLAL BAGH,
MANGALURU - 575003
...PETITIONER
(BY SRI. DINESHKUMAR RAO K, ADVOCATE)
AND:
MR DYANI ANTONY PAUL
S/O LATE JOSEPH PAUL,
AGED ABOUT 37 YEARS,
R/AT NO.1-77, VAILANKANNI COLLEGE,
MUGRODY ROAD,
PADAVINANGADY,
KONCHADY POST,
MANGALURU - 575008
...RESPONDENT
(BY SRI. RAGHAVENDRA SHENOY M, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 01.04.2023 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE D.K., MANGALURU IN
CRL.A.NO.102/2021 CONFIRMING THE JUDGMENT AND
ORDER DATED 09.08.2021 IN C.C.NO.6784/2019 PASSED
BY THE JMFC IV COURT, MANGALURU D.K., CONVICTING
THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
SECTION 138 OF NEGOTIABLE INSTRUMENT ACT AND
ACQUIT THE PETITIONER OF CHARGE LEVELED AGAINST
HIM.
THESE APPEALS HAVING BEEN RESERVED FOR ORDERS,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:-
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
CAV JUDGMENT
(PER: HON’BLE MR JUSTICE V SRISHANANDA)
Heard.
These two revision petitions in Crl.RP No.782/2023 is filed
by the complainant and Crl.RP No.858/2023 is filed by the
accused challenging the Order passed by the learned Judge in
the First Appellate Court in Crl.A No.102/2021, whereby, the
Order of the Trial Court in C.C.No.6784/2019 convicting the
accused for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881, imposing fine of
Rs.6,08,57,000/- of which Rs.6,08,50,000/- was ordered to be
paid as compensation to the complainant and balance sum of
Rs.7,000/- to be appropriated towards defraying expenses of
the State, and in default, to undergo simple imprisonment for a
period of two years was modified by reducing the default
sentence from two years to six months.
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
2. Facts of the case which are utmost necessary for disposal
of the present revision petitions are as under:
2.1 A private complaint came to be filed on the file of
the JMFC IV Court, Mangaluru, Dakshina Kannada, alleging
commission of the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881.
2.2 In the complaint it has been contended that the
complainant is the owner of the small scale industrial unit
situated in premises bearing Door No.6-54 measuring 700
square feet comprised in Sy.No.40/5(P) measuring 12 cents
and 7 cents of the property which is further comprised in
Sy.No.40/8 of Idya village, Mangaluru taluk, along with the
machineries, equipments and industrial plant.
2.3 Complainant had leased the above industrial unit to
the accused under a lease agreement. The industrial unit was
called ‘Prem Prasad Bottling’.
3. It is further contented by the complainant that there was
difficulty to run the said industrial unit on the part of the
accused and he failed to pay the dues in respect of lease
rentals. Therefore, accused was requested to surrender the
unit with all equipments.
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
4. Accused having realised that he cannot run the industrial
unit any longer, surrendered the entire unit by executing a
deed of surrender on 18.01.2019 and liability of the accused as
on the date of deed of surrender was crystallized in a sum of
Rs.5,15,73,798/-. Towards the repayment of said liability,
accused passed on two cheques bearing Nos.968221 and
968224 dated 01.02.2019 and 26.02.2019 in a sum of
Rs.3,00,00,000/- and Rs.2,15,73,798/- respectively.
5. Those cheques were presented for collection and were
dishonored with an endorsement ‘funds insufficient’.
Thereafter, complainant got issued a legal notice on
15.03.2019 calling upon the accused to pay the amount
covered under the cheques within fifteen days. Notice was duly
served on the accused on 16.03.2019. But an untenable reply
was caused by the accused on 28.03.2019. Therefore,
complainant sought for taking necessary action against the
accused.
6. Learned Trial Magistrate, after taking cognizance of the
offence, completed necessary formalities and summoned the
accused and plea was recorded. Accused pleaded not guilty.
Therefore, trial was held.
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
7. In order to prove the case of the complainant,
complainant got examined himself as PW-1 and placed on
record 20 documents which are exhibited and marked as
Exhibits P-1 to P-20, comprising of original cheques, Bank
endorsements, office copy of the legal notice, postal receipt and
acknowledgment, reply notice, surrender agreement, trade
license, lease agreement, pass books, certified copy of the
statement of account, photocopy of the trade license,
photocopy of the FIR in Crime No.54/2019, photocopy of the
sale deed dated 10.08.2012, photocopy of the trade license and
Income Tax Returns.
8. As against the material evidence placed on record on
behalf of the complainant, accused got examined himself as
DW-1 and placed on record certified copy of the orders passed
in O.S No.367/2019 on interlocutory application, certified
copies of the sale deeds dated 10.08.2012 and 28.06.2013,
certified copy of the order sheet, certified copy of the judgment
in MA No.19/2019 and certified true copy of complaint filed by
Deputy Director of Enforcement against the complainant,
accused and others before the adjudicating authority.
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
9. Thereafter, learned Trial Judge heard the arguments of
the parties and on cumulative consideration of the oral and
documentary evidence on record, convicted the accused, inter
alia, holding in paragraph Nos.28 to 37 as under:
“28. Further to prove the relationship of landlord
and tenant, the counsel for the complainant argued that,
as per Ex.D-2 sale Deed the complainant is the owner of
property bearing no.6-54 and as per Ex.P19 trade licence
for the year 2011-12 the accused was running ‘prem
prasad bottling company in the premises bearing no.6-
54. Further, in the complaint filed by the Deputy Director
of Enforcement before the Adjudicating Authority, it is
clearly mentioned that, the accused is running the
business in the property bearing no.6-54 under the
name ‘Prem Prasad Bottling company’. The accused has
not disputed the Ex.D2, Ex.P19 and Ex.D6 documents.
That apart, the Ex.P9 Surrender cum agreement. Ex.P11
and P12 Lease agreements executed by the accused
shows that, he was tenant under the complainant. In all
the documents executed by the accused his signatures
were not disputed. Therefore, it is clear that, the
complainant is the owner of property bearing no.6-54
and the accused was the tenant under the complainant.
The accused has forged the document by writing/2 after
the property no.6-54 in the trade license issued by
Mangaluru City Corporation in the year 2015-2016 as per
Ex.P16. The forgery made by the accused clearly visible
on the document itself. The accused has never carried
his business in the building bearing no. 6-54/2 on the
other hand he was carrying business under the name
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023‘Prem Prasad Bottling in building bearing no. 6-54 which
is belonged to the complainant. In fact the property
bearing D.No.6-54/2 was sold by one Mr. Bharath Kumar
in favour of the brother of complainant Mr.Lawrence Paul
vide sale deed dated 10.08.2012. When such being the
case, the question of owning the industrial unit in
property no.6-54/2 under the name ‘Prem Prasad
Bottling by the accused does not arise at all. The said
sale deed is also confronted to the accused and on
admission by him the same was marked as Ex.P18. In
the said sale deed the accused and his wife are
signatories to the document as witnesses. When
admittedly the property bearing no.6-54/2 was sold to
the brother of complainant way back in the year 2012, it
is clear that, the accused was not running the industry in
the property bearing no. 6-54/2. The burden is on the
accused to prove the possession of property bearing
no.6-54/2. In spite of calling upon the accused to
produce documents to prove the possession in respect of
property bearing no.6-54/2 the accused has not
produced the same. In this regard the learned counsel
for the complainant also drawn the attention of this
Court to the cross examination of DW1 and the same is
reproduced herein below:
¸ÀzÀj 19 ¸ÉAmïì eÁUÀzÀ°è MlÄÖ 2 ©°ØAUï EªÉ.
E£ÉÆßAzÀÄ ©°ØAUï£À qÉÆÃgï ¸ÀASÉå 6-54 DVgÀÄvÀÛzÉ. ¸ÀzÀj
©°ØAUï ¸ÀASÉå 6-54/2 £À£ÀUÉ 2000£Éà E¸À«¬ÄAzÀ ¸Áé¢üãÀ
ºÉÆA¢gÀÄvÀÛzÉ. ©°ØAUï ¸ÀASÉå 6-54/2 PÉÌ ¸ÀA§A¢ü¹zÀAvÉ vÉjUÉ
¥ÁªÀw¹zÀ §UÉÎ £À£Àß §½ zÁR¯É E®è. ¸ÀzÀj ©°ØAUï ¸ÀASÉå 6-
54/2 £À£Àß CvÉÛAiÀÄ ºÉ¸Àj£À°è £ÀUÀgÀ ¥Á°PÉ zÁR¯ÉUÀ¼À°è EgÀĪÀ §UÉÎ
zÁR¯É ºÁdgÀÄ¥Àr¸À§ºÀÄzÁ JAzÀgÉ ¸ÁQëAiÀÄÄ ºÁdgÀÄ¥Àr¸À§ºÀÄzÀÄ
-9-
CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023JAzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ. ©°ØAUï ¸ÀASÉå6-54/2 UÉ ¸ÀA§A¢ü¹zÀAvÉ
£À£ÀUÉ trade licence 2000 jAzÀ 2018 gÀªÀgÉUÉ EvÀÄÛ. ¤r-
5 zÁR¯ÉAiÀÄ ¥ÀæPÁgÀ ¸ÉÆwÛ£À ¸ÀASÉå 6-54/2 PÉÌ ¸ÀA§A¢ü¹zÀAvÉ
£ÁåAiÀiÁ®AiÀÄzÀ°è £Á£ÀÄ £À£ÀUÉ ¸ÉÃjzÀ ¸ÉÆvÀÄÛ JAzÀÄ ¸ÁzsÀ£É
ªÀiÁrzÉÝÃ£É JAzÀgÉ ¸Àj.
29. From the aforesaid evidence, the learned counsel for
the accused argued that, when admittedly the accused
has claimed ownership of property bearing no.6-54/2
before the Court, it is clear that, the accused has forged
the trade licence Ex.P16. For having forged the
documents the brother of complainant namely
Mr.Lawrence Paul has lodged a complaint before
Surathkal Police Station and FIR was registered against
the accused. The accused had deliberately forged the
document Ex.P16 trade license by inserting /2 to the
property bearing D.No. 6-54. Even no authentication is
made by the authority for having made correction in the
document which clearly goes to show that, the accused
had forged the property number. In this regard the
learned counsel for complainant also drawn the attention
of this Court to the cross examination of DW-1. The
relevant portion of DW-1 is reproduced herein below:
¸ÉÆwÛ£À ¸ÀASÉå 6-54/2 UÉ ¸ÀA§A¢ü¹zÀAvÉ £À£Àß «gÀÄzÀÞ
¦AiÀiÁð¢zÁgÀgÀ CtÚ£À ºÉAqÀw forgery PÉøÀ£ÀÄß ¸ÀÄgÀvÀ̯ï
¥ÉÇð¸ï oÁuÉAiÀÄ°è zÁR°¹gÀÄvÁÛgÉ. JAzÀgÉ ¸Àj, ¸ÀzÀj ©°ØAUï
UÉ ¸ÀA§A¢ü¹zÀAvÉ qÉÆÃgï ¸ÀASÉå forgery ªÀiÁrzÉÝãÉAzÀÄ £À£Àß
«gÀÄzÀÞ FIR zÁR¯ÁVzÉ JAzÀgÉ ¸Àj.
30. From the aforesaid evidence the learned
counsel for complainant vehemently argued that, if at all
the property bearing D.No.6-54/2 is owned by the
accused he could have produced tax paid receipt and
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
such other documents to show that, he is in possession
of the said premises. However, no documents were
produced to show that, the accused is in possession of
property bearing no.6-54/2. Therefore, it is clear that,
the accused was tenant under the complainant in
property bearing D.No.6-54 and he had executed
surrender deed as per Ex.P9 in view of his default in
making payment of dues to the complainant. The
accused has never disputed his signatures in Ex.P9,
Ex.P11 and Ex.P12 documents. Once the signature is
admitted the contents of the documents also deemed to
be admitted. The burden is on the accused to disprove
the execution of the documents with cogent material
evidence. However, except denial the accused has not
produced any documents to disprove the execution of
Ex.P9, Ex.P11 and Ex.P12 documents. In Ex.P9
surrender deed the wife of accused has also signed the
document as witness. In all the documents executed by
the accused the wife of accused namely Smt. Shilpa A.
Hegde is a witness to the documents. Therefore, the wife
of the accused is the material witness to depose
evidence in respect of the documents executed by the
accused. However, the accused has not chosen to
examine his wife which further discloses that, the
accused in order to avoid his liability had taken false
defence stating that, the documents Ex. P9, Ex.P.11 and
Ex.P12 were created by the complainant.
31. That apart, the civil suit filed by the
complainant is for permanent prohibitory injunction and
not for declaration of title. The order was passed on IA
as per Ex.D1 was not attained finality. Hence, the same
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
cannot become relevant in this case. So far as
attachment of property by the directorate of
Enforcement, it is to be noted that, the said attachment
is only a provisional one which do not disturb the owner
of the property in enjoying the property. The surrender
deed executed will not amounting to transfer of
property. The ownership of the property is with the
complainant himself and the attachment order will not in
any way prohibits execution of surrender deed by the
tenant of the premises. It is just nothing but handing
over the possession to the owner who is legally entitled
to. The burden is on the accused to prove that he is in
possession of property bearing no. 6-54/2 and carrying
business under the name and style ‘Prem Prasad
Bottling’ in the said premises. The accused has not
placed any documents to show that, he was put in
possession of property bearing no. 6-54/2. That apart,
the accused has also failed to explain when exactly he
had issued the disputed cheques to the complainant. In
his reply notice as per Ex.P8 he contended that, the
cheques were issued in the year 2012, whereas in his
defence evidence he deposed that, during 2012 to 2016
he had borrowed loan of Rs.1,85,000,00/- and towards
security he had issued blank cheques. The complainant
has also called upon the accused to summon and
examine his banker so as to prove when exactly the
cheque book pertaining to Ex.P1 and Ex.P2 cheques were
issued. Though the accused deposed that, he had
obtained the cheque book in respect of Ex.P1 and P2
cheques between 2012 to 2016, but has failed to
substantiate the said contention. Since the accused had
admitted issuance cheque in favour of complainant and
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
also his signature in cheques, the presumption under
section 118 and section 139 of NI Act goes in favour of
complainant and the burden shifts on accused to rebut
such presumption. The initial burden of complainant is
discharged on proof of issuance of cheques and
signature. The learned counsel for the complainant also
argued that, if the accused able to prove that, he had
borrowed only Rs.1,85,000,00/- from the complainant,
then the complainant will not succeed in this case and if
not, the case of the complainant is held to be proved.
The learned counsel for the complainant also relied upon
a decision of Hon’ble Apex Court reported in AIR(SCW)-
2015-0-3040 T. VasanthaKumar V/s Vijayakumari
wherein It was held that, ‘in the present case since the
cheque as well as the signature has been accepted by
the accused respondent, the presumption under section
139 would operate. Thus, the burden was on the
accused to disprove the cheque or the existence of any
legally recoverable debt or ability.
Further, in another decision reported in AIR 2007
Kar 91 in J Ramaraj Vs Iliyaz Khan the Hon’ble
High Court of Karnataka held that ‘when the petitioner
did not avail the opportunity of calling for the records nor
produced the records from his end to show that, no
transaction was taken place and when he could not duly
discharge the burden, the presumption under section
139 of the Negotiable Instruments the Act goes against
the petitioner and presumption stands unrebutted’.
32. Having heard the rival submissions of both
learned counsel for complainant and the accused. I have
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
given my anxious consideration towards case record
coupled with oral and documentary evidence adduced. At
the very outset, it is to be noted that, the acquaintance
of complainant and accused with each other is not in
dispute. The issuance of Ex.Pl and Ex.P2 cheques by the
accused to the complainant and the signatures in the
cheques also not disputed by the accused. Therefore,
this Court drawn initial presumption under section 139 of
NI Act in favour of the complainant that, the cheques in
question were issued towards discharge of legally
enforceable debt or liability. The burden shifts on the
accused to rebut the said presumption by raising a
probable defence. For this purpose the accused has
come up with the story that, the cheques in question
were obtained by the complainant as security towards
borrowal of loan of Rs.1,85,00,000/- in the year 2012
and inspite of repayment of the said amount by selling
properties of his mother and his sister to the
complainant, the said cheques were misused by the
complainant. Therefore, the burden is on the accused to
establish first that, he had borrowed Rs.1,85,00,000/-
only from the complainant in the year 2012 and had
repaid the same by selling properties of his mother and
his sister. If the accused is able to prove the said
defence then the prosecution can fall. Admittedly, no
documents were got executed by either of the parties in
respect of the transaction. The complainant in his
evidence has clearly deposed that, he had lent loan of
Rs.2.20,00,000/- to the accused in installments from
June-2012 to December-2014. In support of the same,
the complainant has produced his bank pass books as
per Ex.P13 and Ex.P14 and statement of account
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C/W CRL.RP No. 858 of 2023
pertaining to his bank account for the period 01.04.2011
to 30.06.2016 as per Ex.P15 which clearly discloses that,
on various dates huge amount of money were
transferred to the account of accused. The accused has
also not disputed the Ex.P13 to Ex.P15 documents. It is
to be noted that, the entries found in Ex.P15 account
statement are presumed to be genuine as per section 4
of Bankers Book Evidence Act. The burden is on the
accused to rebut the presumption by adducing, probable
evidence. However, the accused has not produced
documents to show that, he had only liability of
Rs.1,85,00,000/- due towards the complainant and the
said amount was already cleared. Though the accused
has produced sale deed as per Ex.D2 and Ex.D3 which
do not discloses that, the said sale deeds were executed
towards repayment of earlier loan borrowed from the
complainant. On the other hand, on perusal of Ex.D2 and
Ex.D3 the sale consideration amount were paid by the
complainant through RTGS transfer to the account of the
vendor i.e., the mother of the accused.
33. The accused also contended that, in the sale
deeds Ex.D2 and Ex.D3 only the market value of the
property was shown and the properties were sold in
respect of clearance of loan due to the complainant. But
in his cross examination he clearly admitted that, the
market value of the properties sold to the complainant
were more than Rs.2 Crores as on the date of execution
of sale deeds. If at all the accused had liability of
Rs.1,85,000,00/- only to the accused why should he
conveyed the properties for lesser value has to be
answered by the accused himself. In the absence of
specific recitals in the Ex.D2 and Ex.D3 sale deeds as to
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C/W CRL.RP No. 858 of 2023
selling of properties towards repayment of loan already
borrowed, it cannot be held that, the accused had
cleared the loan by conveying properties to the
complainant. In this regard it is useful to refer to section
91 of Evidence Act which provides that, when the terms
of contract, or of a grant, or of any other disposition of
property, have been reduced to the form of a document,
and in all cases in which any matter is required by law to
be reduced to the form of a document, no evidence shall
be given in proof of such terms of contract, grant or
other disposition of property or of such matter, except
the document itself.
34. From the aforesaid provision it is clear that,
no other evidence can be substituted so long as the
writing exists. Since, Ex.D2 and Ex.D3 sale deeds were
registered documents, have presumptive value under the
law. Another aspect to be noted here that, as contended
by the accused the properties were conveyed to the
complainant in the year 2012-2013 as per Ex.D2 and
Ex.D3 for clearance of earlier loan. However, on perusal
of Ex. P15 statement of account, it clearly discloses that,
the accused had borrowed amount from the complainant
even after execution of sale deeds. The accused has not
whispered anything on this aspect. The accused has
failed to prove that, Ex.D2 and Ex.D3 sale deeds were
executed towards repayment of earlier loan.
35. That apart, contrary to his defence, the
accused in his cross examination has clearly admitted
that, in his IT returns he declared that, he had liability of
Rs. 1,90,70,000/- due to towards the complainant and
he did not made any efforts to clear the said loan even
thereafter. The said IT returns was marked, as Ex.P20 by
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CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
way of confrontation. If really the accused had sold the
property in the year 2012 in respect of loan amount due
to the complainant, why did he shown in his IT returns
the amount due to the complainant as Rs.1,90,70,000/-
is to be answered by the accused. If at all the accused
had only liability of Rs.1,85,00,000/- towards the
complainant he ought to have stated so in his IT returns
instead of mentioning Rs.1,90,70,000/-. Ex.P20 IT
Returns is for the assessment year 2015-16. When the
accused himself admitted that, he did not made any
efforts to return the amount shown in Ex.20 IT returns
even thereafter, it is clear that, he had liability due
towards the complainant and accordingly, issued Ex.P1
and Ex.P2 cheques towards discharge of his liability.
Furthermore, on perusal of Ex.D6 the complaint lodged
by directorate of enforcement, Bangaluru against the
complainant herein, the accused and others before
Adjudication Authority under the provisions of Prevention
of Money Laundering Act 2002, the accused herein had
given statement before the enquiry officer stating that,
even though he is the proprietor of M/s ‘Prem Prasad
Bottling’, the entire investment to the extent of
Rs.1,85,00,000/- was made by his friend Mr.Dany
Antony Paul the complainant herein. From the above
statement it is clear that, the accused had liability due
towards the complainant apartment of loan borrowed.
The accused has not disputed the Ex.D6 document.
Therefore, in the absence of documents to show that,
the amount of Rs.1,85,00,000/-was repaid to the
complainant, it cannot be held that, the defence of
accused is probable.
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C/W CRL.RP No. 858 of 2023
36. Further, to establish the relationship of
landlord and tenant and arrears of rental dues, the
complainant has produced two Lease Agreements as per
Ex.P11 and Ex P12 and Surrender deed as per Ex.P9.
Though the accused has denied the execution of the
documents in favour of the complainant, but has
categorically admitted his signatures in the said
documents. Therefore, the burden is on the accused to
disprove the execution of Ex.P9, Ex.P11 and Ex.P12
documents. The accused is not an ordinary person to
issue signed blank stamp papers and signed blank sheets
to the complainant. On the other hand, he is a
businessmen running an industry in supply of mineral
water bottles having vast knowledge in the business
field. No reasonable prudent man is expected to hand
over blank signed papers to an individual. The accused
has never whispered anything as to Ex.P11 and Ex.P12
documents in his reply notice. It is only during evidence,
the accused had taken the defence that, he had issued
two signed blank cheques, signed blank stamp papers
and other few signed blank papers to the complainant
and the same were misused by the complainant. Except
denial of execution of documents the accused has not
placed any cogent material evidence to disprove the
Ex.P9, Ex.P11 and Ex.P12 documents. Even the accused
has not taken any steps to get return of signed blank
cheques, stamp paper and other signed blank papers
even after alleged repayment of Joan. What prevented
the accused to initiate legal action against the
complainant for having misuse of cheques and signed
blank papers has not been properly accused deposed
that, he had lodged a complaint before explained by the
– 18 –
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C/W CRL.RP No. 858 of 2023
accused. Though in his evidence the accused deposed
that, he had lodged a complaint before jurisdictional
police in this regard, but has not produced the complaint
or copy of FIR registered against the complainant.
37. Coming to the crucial document which made
the complainant to agitate his right before the Court i.e.,
Ex. P9 surrender cum agreement, the same was
executed on 18.01.2019 wherein it appears that the
accused had surrender back the industrial premises
namely ‘Prem Prasad Bottling’ to the complainant along
with machineries and other equipments to the
complainant and had issued the Ex.P1 and Ex.P2
cheques in respect of the amount due to the
complainant. The accused has not at all disputed his
signatures in Ex.P9 surrender deed. That apart the wife
of accused also signed as a witness to the document.
Though the accused contended that, he had issued
signed blank stamp paper and signed blank papers at the
time of obtaining loan from the complainant, but has
failed to substantiate the same with cogent material
evidence. It is well settled that, once the signature in a
document is admitted, the contents thereof also deemed
to be admitted and the person who disputes execution of
the documents, the burden is on such person to disprove
the same with cogent material evidence. Mere denial of
contents of the document will not serve any purpose.”
10. Being aggrieved by the same, accused filed an appeal
before the District Court in Criminal Appeal No.102/2021.
– 19 –
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C/W CRL.RP No. 858 of 2023
11. After securing the records, learned Judge in the First
Appellate Court heard the arguments of the parties and on re-
appreciation of the material evidence on record, upheld the
order of conviction but modified the default sentence from two
years to six months inter alia holding in paragraph Nos.27 to 41
as under:
“27. It is borne out from the evidence that
accused has taken another contention that Prem Prasad
Industrial Unit was situated in property bearing Door
No.6-54/2 of Iddya village. It is pertinent to note that
as per Ex.P.18, the brother of the complainant acquired
the ownership of the said property through registered
sale deed dated 10.8.2012. In the cross examination
accused admitted that the property was earlier belongs
to his wife, she sold the property in favour of one
Bharath Kumar and he in turn sold the property in favour
of brother of the complainant. He also admits that he
and his wife attested as witnesses to the said document.
When accused and his family parted with the possession
of both properties bearing Door No.6 54 and 6-54/2 in
favour of complainant and his brother, the contention of
the accused that he was running the Prem Prasad
Bottling Company in his own building is not tenable
contention.
28. In this case Ex.P9 surrender deed is also produced
by the complainant stating that, accused has
surrendered the building and also issued two cheques
towards the due amount. Accused has denied his
– 20 –
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C/W CRL.RP No. 858 of 2023
signature on Ex.P9. The wife of the accused has shown
as witness to document Ex.P9/surrender deed. Even
though accused denied his signatures on Ex.P9, Ex.P11
and Ex.P12, he has not taken any steps to prove his
defence. In the reply marked at Ex.P8 also accused
never raised contention that complainant has taken
signatures on blank stamp papers. In his chief
examination also he only deposed that he has not
executed lease deeds and surrender deeds in favour of
complainant. In the cross examination also execution of
Ex.P11 and Ex.P12 is not specifically denied.
29. In Ex.P9/surrender deed it is clearly mentioned
that accused received hand loan of Rs.2,20,000/. He
issued cheque bearing No.968221 for Rs.3,00,00,000/
and another cheque bearing No.968224 for
Rs.2,15,73,798/ drawn on Corporation Bank, M.G.Road
Branch, Mangalore in favour of complainant towards
arrears of the amount and towards hand loan and also
interest thereon is due from him to complainant.
Cheques mentioned in Ex.P9 surrender deed are Ex.P1
and Ex.P2. In view of the same this court proceeds to
examine whether non-mentioning of the as to the
amount due from the accused under different heads in
the complaint is fatal to the case of the complainant. The
Hon’ble Supreme Court in its decision reported in (2019)
10 SCC 287 Uttam Ram Vs. Devinder Singh Hudan and
another, held that.
“once cheque is proved to be issued, it carries
statutory presumption of consideration. Once
agent of respondent admitted settlement of due
amount and in absence of any other evidence
– 21 –
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C/W CRL.RP No. 858 of 2023
the courts below could not dismiss complaint
only on account of discrepancies in
determination of amount due or oral evidence in
regard thereto, when written document
crystallizes the amount due for which the
cheque was issued.”
30. In this case even though complainant has not
mentioned different heads under which amount due by
the accused, Ex.P9 surrender deed crystallizes the
amount due for which cheques were issued. In Ex.P9 it is
clearly mentioned that cheques were issued towards
repayment of hand loan of Rs.2,20,00,000/ along with
other dues. Ex.P20 Income Tax Returns of the accused
also corroborates that in the year 2015-16 itself accused
owes Rs.1,90,70,000/ to the complainant. Accused in his
evidence clearly admitted that after submission of I.T.
Returns for the year 2015-16, he has not paid that
amount. Ex.P11 and Ex.P12 further substantiates that
complainant and accused entered into a lease
agreement, wherein accused admitted to pay monthly
rental to the complainant. As such contentions raised by
the learned counsel for the accused that complainant has
no authority to lease the premises and amount
mentioned in cheques is more than the amount due are
not tenable contentions.
31. The another contention raised is that, debt is
time barred debt as such debt is not legally enforceable
debt. It is strenuously contended by the learned counsel
for the appellant/ accused that transaction was
transpired in between 2012 to 2016. Complainant in his
evidence also admits that he paid in total
– 22 –
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C/W CRL.RP No. 858 of 2023
Rs.2,20,00,000/ to the accused on various dates from
June 2012 to December 2014. Evidently cheques Ex.P1
and Ex.P2 bear date 1.2.2019 and 26.2.2019. As such it
is contended that there is no legally enforceable debt
under the cheques Ex.P1 and Ex.P2. Ex.P9 surrender
deed dated 18.1.2019 is produced by the complainant to
show that accused issued Ex.P1 and Ex.P2 cheques
towards amount due to the complainant on the date of
execution of document. The said document even though
is disputed by the accused, in this case accused has not
taken steps to disprove the same. In view of Ex.P9, this
court further proceeds to examine whether the
transaction in question covered under time barred debt.
32. It is pertinent to refer Sec.25 of Contract Act
and Section 29(1) of Limitation Act. Sec.25 of Contract
Act states that a contract without consideration is void,
but there are three exceptions found in clauses 1 to 3 of
the said Section. Section 25(3) is relevant for discussion.
Its requirement is that there must be a promise made in
writing and signed by the persons to be charged
therewith (Promissor) or his agent generally or
specifically authorized on his behalf to pay wholly or in
part a debt of which the creditor might have enforced
payment, but for the law of limitation of suits. That
means, Section 25(3) applies to a situation where there
was a past valid contract and if the debt payable under
that contract cannot be recovered on account of expiry
of limitation period to file a suit, if the debtor or his duly
authorized agent makes a promise in writing, it
constitutes a lawful contract which can be enforced.
– 23 –
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C/W CRL.RP No. 858 of 2023
33. Section 29(1) of the Limitation Act clearly
states that nothing in this Act shall affect Section 25 of
the Indian Contract Act. Thus by virtue of a new contract
coming into force under Section 25, it becomes
enforceable and it has nothing to do with the past
contract which has become unenforceable due to lapse of
time.
34. The meaning that can be ascribed to the
expression legally enforceable debt or liability found in
explanation to Section 138 of N.I.Act is a debt or liability
arising out of legally enforceable contract. Even if in
respect of a time barred debt, an agreement comes into
existence subsequently according to Section 25(3) of the
Contract Act, it becomes a new contract which is
enforceable. Sections 18 and 19 of the Limitation Act
only extend the period of Limitation if there is
acknowledgment of debt before the limitation period
expires. Even if there is no acknowledgement of debt or
liability in terms of Sections 18 or 19 of the Limitation
Act, if a new agreement comes into existence according
to Section 25(3), it is a valid contract and thus a cheque
issued in this connection, if dishonoured, attracts penal
action under Section 138 of N.I.Act.
35. In view of Ex.P9 a new contract in writing
came into existence according to Sec.25(3) of Indian
Contract Act. In Ex.P9 there is recital to the effect that
accused issued two cheques also towards repayment of
Rs.2,20,00,000/ borrowed by him as hand loan. It was in
this connection that the cheques in question were issued
and when they were dishonoured, respondent/
– 24 –
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C/W CRL.RP No. 858 of 2023
complainant had to initiate action U/s. 138 of N.I.Act.
Therefore, the cheques were issued in connection with
legally enforceable debt and it was not a time barred
debt. The opinion of this court is fortified by the
judgment of Hon’ble High Court of Karnataka reported in
ILR. 2022 KAR 2071 K.R.Sudhir Vs. K.S.Suresh Raju. As
such the contention raised by the appellant that the loan
is time barred is not feasible contention.
36. The another contention raised by the learned
counsel is that 313 statement of the accused is not
recorded in its proper perspective. On careful
examination of the trial court records, trial court has
recorded 313 statement of the accused on 25.2.2020
and also on 17.3.2020. Learned magistrate has clearly
readout gist of the evidence which incriminates accused
in the 313 statement. Learned counsel except raising the
contention has not made out any grounds to establish
prejudice occasioned to the accused. As such the said
contention not holds any water.
37. The trite proposition of law is that, it is
always not necessary for the accused to step into
witness-box and to deposed before the court to prove
his contentions. It is trite proposition of law that
accused can prove his contention by way of cross-
examining the complainant witnesses. In this case
accused not disputed with regard to issuance of
cheques. There is a clear and cogent evidence available
that cheques belong to the accused which bears his
signature. When such being the case it is incumbent
upon the accused to give explanation under what
circumstances he parted with the possession of Ex.P1
– 25 –
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C/W CRL.RP No. 858 of 2023
and Ex.P2. In his statement U/s.313 of Cr.P.C., accused
plainly denied the allegation. No explanation was offered
by the accused with regard to possession of cheques
belong to him in the hands of the complainant. When
such being the case the burden is on the accused to
disprove that cheques were not issued towards legally
enforceable debt.
38. There is an evidence of the complainant that
cheques belong to the accused. Cheque bears the
signature of the accused. Accused not disputed his
signature on the cheques. The explanation offered by the
accused in his evidence is not reasonable explanation. As
such this court proceeded to examine Section 118 and
139 of Negotiable Instrument Act as they provided for
statutory presumption. The statute mandates that once
the signature of accused on the cheque is established
then the ‘reverse onus’ clause become operative. In
such a situation the obligation shifts upon the accused
to discharge the presumption imposed upon.
39. The Hon’ble Supreme Court in its decision
reported in (2009) 2 SCC 513 in the case of Kumar
Exports v/s Sharma Carpets and another decision of the
Hon’ble Supreme Court reported in AIR 2019 SC 1983 in
the case of Basalingappa v/s Mudibasappa held that
presumption under Section 118 and 139 of N.I.Act are
rebuttable presumptions. It is further held that rebuttal
does not require proof beyond reasonable doubt.
Something probable has to be brought on record. In this
case the accused has not elicited any admissions from
the mouth of complainant nor rebut the presumptions
– 26 –
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C/W CRL.RP No. 858 of 2023
available to the complainant as provided under Section
118 and 139 of N.I.Act. The bare denial of passing of
consideration would not aid the case of the accused. The
Hon’ble Supreme Court clearly held that a probable
defence needs to be raised which must meet the
standard of ‘preponderance of probability’, and not mere
possibility.
40. The Hon’ble Supreme Court in its decision
reported in (2019) 4 SCC 197 in the case of Bir Singh
v/s Mukesh Kumar held that even a blank cheque leaf,
voluntarily signed and handed over by the accused
which is towards some payment, would attract
presumption under Section 139 of N.I.Act, in the
absence of any cogent evidence to show that cheque
was not issued in discharge of debt.
41. Ex.P1 & Ex.P2 were the cheques belong to the
account of the accused. Accused never denied his
signature on cheques marked at Ex P1 & Ex.P2. Such
being the case the defence raised by the accused in the
considered opinion of this court not inspire confidence or
meet the standard of ‘preponderance of probability’. In
the absence of any other relevant evidence to disprove
or to rebut the presumption available to the
complainant, the accused in the opinion of this court has
not discharged his onus in proving his contention. As
such the point No.1 taken up for consideration is held in
affirmative and point No.2 taken up for consideration is
held in Negative.”
– 27 –
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C/W CRL.RP No. 858 of 2023
12. Being further aggrieved by the same, accused and
complainant have filed the present revision petitions before this
Court.
13. Sri Dineshkumar K. Rao, learned counsel for the accused
reiterating the grounds urged in the revision petition
vehemently contended that the facts of the case on hand are
not properly appreciated by both the Courts while convicting
the accused for the offence under Section 138 of the Negotiable
Instruments Act resulting in miscarriage of justice.
14. He would further point out that the alleged deed of
surrender is not proved by the complainant with cogent and
convincing evidence on record. Mere marking of the deed of
surrender would not ipso facto result in proof of execution of
the deed of surrender marked at Exhibit P-9 and thus, there is
no legally recoverable debt under Exhibits P-1 and P-2 and thus
sought to allow the revision petition filed by the accused.
15. He would further contend that the Enforcement
Directorate (‘ED’ for short) has initiated action against the
complainant and as a retaliation, complainant got concocted
the deed of surrender and then misused two blank cheques
which were given as security at the time of taking the industrial
– 28 –
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C/W CRL.RP No. 858 of 2023
unit on lease. This aspect of the matter is not considered by
both the Courts in proper perspective resulting in miscarriage
of justice and thus sought for allowing the petition.
16. It is also contended that admission elicited in cross-
examination of PW-1 that complainant is not the owner of
‘Prem Prasad Bottling Company’ and he was running ‘Prem
Sagar Bottling Company’ is totally ignored by both the Courts
which has got a great bearing while appreciating the legally
recoverable debt under Exhibits P-1 and P2.
17. He also pointed out that both the Courts failed to notice
that ED initiated action against the complainant and there was
an order of attachment of properties by the ED vide Exhibit D-
6. DW-1 has specifically deposed before the ED that he has
advanced an amount of Rs.1,85,00,000/- which contradicts the
case setup before the Court that the accused was due in a sum
of Rs.5,15,73,798/-.
18. He further pointed out that in the Income Tax Returns
marked at Exhibit P-20, PW-1 has shown the due in a sum of
Rs.1,90,70,000/- as loan amount insofar as the accused is
concerned. Therefore, there cannot be any liability under
Exhibits P-1 and P-2.
– 29 –
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C/W CRL.RP No. 858 of 2023
19. Sri Dineshkumar K.Rao, learned counsel also points out
that PW-1 in his examination-in-chief itself has stated that he
has lent a loan in a sum of Rs.2,20,00,000/- which is contrary
to the documents placed by him and said aspect of the matter
is not considered by both the Courts, resulting in miscarriage of
justice and thus sought for allowing the revision petition filed
by the accused.
20. He also emphasized that the cross-examination of DW-1
vis-à-vis the oral testimony of DW-1 and the documents
marked with Exhibits D-1 to D-6 would make it clear that there
is no legally recoverable debt as is claimed by the accused and
contents of the reply notice is not even considered by both the
Courts resulting in miscarriage of justice and sought for
allowing the revision petition.
21. Insofar as the revision petition filed by the complainant,
Sri Dinesh Kumar K Rao, would contend that the First Appellate
Court in its discretion has reduced the default sentence from
two years to six months which is perfectly in order and
therefore, sought for dismissal of the revision petition filed by
the complainant.
– 30 –
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C/W CRL.RP No. 858 of 2023
22. Per contra, Sri Rajashekhar, learned counsel for the
complainant while opposing the revision grounds urged on
behalf of the accused, contented that both the Courts have
recorded factual finding based on the cumulative analysis of the
material evidence on record and has clearly held that Exhibits
P1 and P2 were issued towards the dues that were payable
under the surrender agreement marked at Exhibit P-9.
23. He would further contend that this Court in the revisional
jurisdiction, cannot revisit into the factual aspects as is held in
the case of Sanjabij Tari vs. Kishore S. Borcar and another
reported in 2025 SCC OnLine SC 2069 and sought for
dismissal of the revision petition.
24. He would further contend that the proceedings before the
ED has got nothing to do while appreciating the case on hand
insofar as the liability of the accused to pay the amount
covered under Exhibits P-1 and P-2 and thus sought for
dismissal of the revision petition filed by the accused.
25. It is his further contention that, learned Judge in the First
Appellate Court without proper analysis of the material on
record, arbitrarily reduced the default sentence from two years
to six months and therefore revision petition filed by the
– 31 –
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C/W CRL.RP No. 858 of 2023
complainant insofar as modification of the default sentence
needs to be allowed and sought for suitable orders.
26. In the light of the rival contentions urged by the learned
counsel for the parties, this Court meticulously perused the
records and bestowed its anxious consideration to every point
that has been addressed on behalf of the parties.
27. On such consideration of the material on record, there is
no dispute that the cheque marked at Exs.P.1 and 2 are
belonging to accused and signature found therein is that of the
accused.
28. Admittedly, cheques are dishonoured for want of funds in
the account of the accused. There is no dispute that a running
unit in the name ‘Prem Prasad Bottling Company’ with all
machineries situated in the land bearing No.40/5P and 40/8,
Idya village, Mangaluru Taluk, was taken on lease by the
accused and a separate lease agreement was executed.
Accused could not run the unit. Therefore, it was surrendered
to the complainant vide Ex.P.9. Signature found in Ex.P.9 is
that of the accused.
– 32 –
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C/W CRL.RP No. 858 of 2023
29. Admittedly, contents of Ex.P.9 would make it clear that
there was due in a sum of Rs.5,15,73,798/- payable by accused
to the complainant. How the said sum is arrived at is also
explained by stating that sum of Rs.2,15,73,798/- and sum of
Rs.80,00,000/- being the arrears of amount and sum of
Rs.2,20,00,000/- being the amount received by the accused as
hand loan which was paid over a period of time.
30. In other words, all the liabilities of the accused to the
complainant was crystallized under Ex.P.9. In cross-
examination of P.W.1 not a single suggestion is put to P.W.1
with regard to the veracity of Ex.P.9. Pertinently, cross-
examination is conducted on 13.02.2020 at the first instance
and again on 12.03.2020. What made the learned counsel for
the accused to dispute Ex.P.9 and contents thereof is not
forthcoming on record.
31. Several other questions were put to P.W.1 with regard to
‘Prem Prasad Bottling Company’ and there is extensive cross-
examination on Exs.P.11 and 12 (lease agreements) but there
is no whisper with regard to Ex.P.9 (surrender agreement).
32. So also, it is pertinent to note that in the entire
examination-in-chief of D.W.1, there is no mention as to
– 33 –
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C/W CRL.RP No. 858 of 2023
veracity of Ex.P.9 and D.W.1 has not stated that signature
found in Ex.P.9 is not his signature or that he has not executed
Ex.P.9.
33. Silence of the accused with regard to Ex.P.9 whereunder
the dues of accused to the complainant is crystallized is
significant while considering the case set up by the accused.
However, in the cross-examination of D.W.1, when Ex.P.9 is
confronted to him, he denied his signature and he also stated
that the liability under Exs.P.9, 11 and 12 is incorrect. If it is
so, what prevented the accused to refer the signature found in
Ex.P.9 to hand writing expert is a question that remains
unaltered.
34. Therefore, prime contention canvassed on behalf of the
accused/petitioner that debt is not proved, cannot be
countenanced in law.
35. Further, it is significant to note that accused and the
complainant are not strangers. Several proceedings which
ensued between the parties and orders passed thereon
admitted by D.W.1 in his cross-examination would belie the
contentions urged on behalf of the accused.
– 34 –
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C/W CRL.RP No. 858 of 2023
36. In fact, there is a finding that accused has gone to the
extent of altering the documents issued by the competent
Municipal Authorities. Though same may not have any serious
bearing on the issue which is directly involved in the present
lis, when accused is denying his signature on Ex.P.9 the finding
recorded against the accused in the civil proceedings assumes
importance.
37. Be that what it may. If the accused is of the opinion that
there is no liability under Ex.P.9 and if it is his case that it is a
concocted document, it is for him to establish that signature
found therein is not that of the accused by referring it to the
hand writing expert.
38. Accused having failed to take such measures, probative
value of Ex.P.9 as accepted by the Trial Court confirmed by the
First Appellate Court cannot be brushed aside by this Court,
that too, in the limited power of revisional jurisdiction.
39. Thus the material available on record was sufficient
enough to hold that the complainant was entitled to the
presumption under Section 139 of the Negotiable Instruments
Act, 1881.
– 35 –
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C/W CRL.RP No. 858 of 2023
40. No doubt, it is a rebuttable presumption. To rebut the
said presumption available to the complainant accused has lead
his defence evidence by examining himself as D.W-1.
41. As referred to supra, in his examination-in-chief itself,
D.W-1 did not depose anything about Ex.P.9 which is a
document under which the liability of the accused is confirmed.
42. In his examination-in-chief he says that he has not
executed any lease deed or surrender deed. But to
substantiate the same, he did not examine the witness to the
documents or referred the lease deed and surrender deed to
the hand writing expert.
43. Accused referring to the proceedings initiated by the ED
has got nothing to do insofar as the lis on hand.
44. It is the specific case of the accused that since he has
been examined as a witness and he has deposed against the
complainant that complaint has misused the signed blank
cheques which were in his custody and signed stamp paper
which was in his custody to create the documents, he has
proved his case.
– 36 –
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C/W CRL.RP No. 858 of 2023
45. If the version of the accused that misappropriation of
blank cheques and blank stamp papers is to be accepted,
accused being business man should have taken necessary
action against the complainant by filing a criminal complaint for
the alleged misuse.
46. Crowning all these aspects of the matter, for the year
2015-2016 in the Income Tax Returns filed by the accused, he
has shown that he was due in a sum of Rs.1,90,70,000/- to the
complainant. The said Income Tax Returns was confronted to
the accused in his cross-examination and he has admitted the
same and, it was marked as Ex.P.20.
47. The very fact of showing that accused was due in a sum
of Rs.1,90,70,000/- to the complainant would falsify the
defence that has been put up by the accused, perhaps, with an
intention to avoid or at the most postpone the liability.
48. These aspects of the matter has been taken note of by
the learned Trial Magistrate and learned Judge in the First
Appellate Court in a judicious manner and categorically
recorded a finding of guilt of accused for the offence punishable
under Section 138 of the Negotiable Instruments Act which
– 37 –
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C/W CRL.RP No. 858 of 2023
requires no interference whatsoever by this Court, that too, in
the revisional jurisdiction.
49. Having said so, complainant has filed the revision petition
challenging the order reducing the default sentence from two
years to six months.
50. The default sentence is reduced by the First Appellate
Court using discretion. Discretion has been exercised by the
learned Judge in the First Appellate Court at paragraphs 42 to
48 of its judgment, which reads as under:
“WITH REGARD TO SENTENCE:
42. Point No.3: On careful examination of the
sentence the learned magistrate sentenced the accused
to pay fine of Rs.6,08,57,000/ with default sentence of
two years of simple imprisonment and also ordered to
pay compensation of Rs.6,08,50,000/ U/s.357(3) of
Cr.P.C. to the complainant.
43. Section 65 of IPC provides that term for which the
court directs offender to be imprisoned in default of
payment of a fine shall not exceed 1/4th of the term of
imprisonment which is the maximum fixed for the
offence, if the offence be punishable with imprisonment
as well as fine.
44. Section 138 of Negotiable Instruments Act
provides for maximum imprisonment of two years or
– 38 –
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C/W CRL.RP No. 858 of 2023
with fine. On careful examination, the default sentence
passed in this case by the learned magistrate is not in
accordance with law. As such this court proceeds to
examine the powers of the appellate court with regard
to passing of sentence.
Section 386(b)(iii) and proviso to Sec.386
provides that;
386. Power of the Appellate Court. After
perusing such record and hearing the appellant
or his pleader, if he appears, and the Public
Prosecutor if he appears, and in case of an
appeal under section 377 or section 378, the
accused, if he appears, the Appellate Court
may, if it considers that there is no sufficient
ground for interfering, dismiss the appeal, or
may-
(a) xxxxx
(b) xxxxx
(I) xxxxx
(ii)xxxxx
(iii) with or without altering the finding, alter
the nature or the extent, or the nature and
extent, of the sentence, but not so as to
enhance the Same;
Provided further that appellate court shall not
inflict greater punishment for the offence
which in its opinion the accused has committed
than might have been inflicted for that offence
– 39 –
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C/W CRL.RP No. 858 of 2023
by the court passing the order or sentence
under appeal.
45. On careful examination of the above stated
provision, the appellate court can alter the sentence,
the only rider is that appellate court is not empowered
to enhance the same and not to inflict greater
punishment than the one might have been inflicted by
the trial judge.
46. The default sentence passed is not in consonance
with the Section 65 of IPC. Taking into consideration
this court proceeds to modify the sentence as follows;
47. Accused is sentenced to pay fine of
Rs.6,08,57,000/- and out of which complainant is
entitled for compensation of Rs. 6,08,50,000/- as
provided U/s. 357(1)(b) of Cr.P.C. The remaining
amount of Rs.7,000/- is ordered to be defrayed to the
State. In default to payment of fine, the accused shall
undergo simple imprisonment for six months.
48. It is made clear that serving default sentence by
the accused will not absolve the accused from paying
the fine amount. As such the point No.3 taken up for
consideration is held partly in the affirmative.”
51. The reasons assigned by the learned Judge in the First
Appellate Court is sound and the apprehension expressed by
the complainant that accused may serve default sentence
whereby his right to recover the amount from the accused
– 40 –
CRL.RP No. 782 of 2023
C/W CRL.RP No. 858 of 2023
would vanish, is also taken care of in paragraph 48, referred to
supra.
52. Thus, this Court does not find any reasons whatsoever to
interfere with the discretionary order of reduction of default
sentence by the First Appellate Court in the revisional
jurisdiction.
53. In view of the foregoing discussion, the following:
ORDER
Revision Petitions are dismissed.
Sd/-
(V SRISHANANDA)
JUDGEkcm