[Cheque Dishnonour] Accused Must Place Evidence To Prove Claim That Complainant Misused Cheque Issued To Another Person: Karnataka High Court

A single judge bench of Justice V Srishananda while dismissing the petition filed by A M Harish Gowda, turned down his contention that the cheque issued in favour of one Prabhakar had been misused by the complainant Chaluvaraju H to file a false case against the accused.

The court said, “It is pertinent to note that said Prabhakar is not even examined on behalf of the accused, nor any material like counterfoil or cheque issuing register is placed on record so as to establish that the cheque has been issued in favour of Prabhakar.”

Further, it said that no positive action was taken by the accused like filing a police complaint, issuing a legal notice or filing civil proceedings in respect of the alleged misuse of the cheque. Under such circumstances, the learned Trial Magistrate was justified in drawing the presumption in favour of the complainant and convicting the accused.

The court also rejected the argument that the complainant did not have the financial capacity to extend the amount and also the absence of legally recoverable debt from the accused.

It said, “No contra evidence is placed on record by the accused to establish his defence by placing cogent evidence though he got examined himself as D.W-1.”

The trial court had while convicting the accused awarded a fine of Rs.4,30,000 of which, the sum of Rs.4,00,000 was ordered to be paid as compensation to the complainant and Rs.30,000, as defraying expenses of the State.

The bench said “Both the Courts have misdirected themselves on two aspects. Firstly, there is no foundation made by the complainant to seek for double the cheque amount as a fine amount in the complaint averments or in the evidence.”

Then it said that under these circumstances, imposing double the cheque amount as a fine was uncalled for.

Further, it held “Admittedly, the lis is between the two private parties and therefore, no State machinery is involved. Further, learned Trial Magistrate has no power to impose a fine more than double the cheque amount. The Magistrate has imposed the fine of Rs.4,30,000/- which is beyond the jurisdiction of the Trial Magistrate under the Act. Said aspect of the matter is totally ignored by the learned Judge in the First Appellate Court while mechanically dismissing the appeal. Therefore, a case is made out by the accused for interference in the sentence.”

Taking note of the fact that the conviction order was passed in the year 2016 and the appeal came to be disposed of in the year 2021, the court reduced the fine amount to a sum of Rs.3,25,000.

Appearance: Advocate Praveenkumar K S for Petitioner.

Advocate A Lourdu Mariyappa for Respondent

Citation No: 2024 LiveLaw (Kar) 276

Case Title: A M Harish Gowda AND Chaluvaraju H S