Karnataka High Court
Satyanarayana N @ Satish vs M/S Abc Enterprises on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2024:KHC:24811
CRL.RP No. 1048 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.1048 OF 2021
BETWEEN:
SATYANARAYANA N @ SATISH
S/O NANJAPPA,
AGED ABOUT 48 YEARS,
PROPRIETOR/OWNER,
SRI BANASHAKARI CHIKEN SUPPLIER,
R/O NO.24, 8TH MAIN ROAD,
1ST CROSS, NEAR NEW OATY CONVENT SCHOOL,
ANNATHAPURA, YALAHANKA,
BENGALURU-560064.
...PETITIONER
(BY SRI G.C.SHANMUKHA, FOR SRI S.B.HALLI, ADVOCATES)
AND:
M/S ABC ENTERPRISES
HAVING ITS OFFICE AT NO.106,
NEAR HK, HOSPITAL,
Digitally MYSORE ROAD, KENGERI,
signed by R BENGALURU-560060.
MANJUNATHA
REPT. BY ITS MANAGING PARTNER,
Location:
HIGH COURT NARAYANA S.
OF ...RESPONDENT
KARNATAKA (BY SRI G.N.SUBRAMANI, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
SENTENCE PASSED BY THE LEARNED 64th ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-65), BANGALORE IN
CRL.A.NO.1089/2019 DATED 31.12.2020 BY CONFIRMING THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE PASSED BY
THE XLII ACMM, BANGALORE IN C.C.NO.10538/2018 DATED
09.04.2019 AND ACQUIT THE PETITIONER FOR THE ALLEGED
OFFENCE.
-2-
NC: 2024:KHC:24811
CRL.RP No. 1048 of 2021
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Sri G.C.Shanmukha, advocate for Sri Shanthappa Basappa Halli, learned counsel for the petitioner and Sri G.N.Subramani, learned counsel for the respondent.
2. The present revision petition is filed by the revision petitioner challenging the order of conviction and sentence passed in C.C. No.10538/2018 dated 09.04.2019 on the file of the XLII Addl. Chief Metropolitan Magistrate, Bengaluru City, which was confirmed in Criminal Appeal No.1089/2019 dated 31.12.2020 on the file of the LXIV Addl. City Civil and Sessions Judge (CCH-65), Bengaluru, for the offence punishable under Section 138 of the Negotiable Instruments Act, whereby, accused was directed to pay fine in a sum of Rs.3,05,000/-, out of which Rs.3,00,000/- was ordered to be paid as compensation to the complainant and balance sum of -3- NC: 2024:KHC:24811 CRL.RP No. 1048 of 2021 Rs.5,000/- was ordered to be paid as defraying expenses to the State.
3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:
Case of the complainant is that complainant being a registered partnership firm, is in the wholesale business of distribution of chicken and in that regard, accused had a transaction and passed on a cheque which is marked at Ex.P.4, towards the legally recoverable debt, which is an amount towards purchase of chicken and said cheque on presentation, came to be dishonored and there was no reply to the callings of the notice. Therefore, complainant sought for action against the accused.
4. The learned Trial Magistrate after taking cognizance, secured the presence of the accused and recorded the plea. Accused pleaded not guilty. Therefore, trial was held.
-4-
NC: 2024:KHC:24811 CRL.RP No. 1048 of 2021
5. In order to prove the case of the complainant, Narayana S., Managing Partner got examined himself as P.W.1 and one more witness by name John Peter was examined as P.W.2. As many as twelve documentary evidence were placed on record, which were exhibited and marked as Exs.P.1 to P.12 comprising of certified copy of registration of the Firm as Ex.P.1, certified copy of the confirmation regarding cheque as Exs.P.2 and 3, cheque as Ex.P.4, bank memo as Ex.P.5, office copy of the legal notice as Ex.P.6, postal acknowledgment as Ex.P.7, complaint as Ex.P.8, statement of account as Ex.P.9, 26 invoices as Ex.P.10, certified copy of the tax returns as Ex.P.11 and certified copy of partnership deed as Ex.P.12.
6. As against the evidence placed on record by the complainant, accused got examined himself as D.W.1 and marked cover as Ex.D.1.
7. Thereafter, the learned Trial Magistrate recorded the accused's statement as is contemplated under Section 313 of the Code of Criminal Procedure -5- NC: 2024:KHC:24811 CRL.RP No. 1048 of 2021 wherein, the accused has denied all the incriminatory circumstances.
8. Subsequent there to, learned Trial Judge heard the arguments of the parties in detail and after considering the oral and documentary evidence placed on record, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and imposed sentence as referred to supra.
9. Being aggrieved by the said order of conviction and sentence passed by the learned Trial Magistrate, the accused preferred an appeal before the First Appellate Court in Criminal Appeal No.1089/2019.
10. The learned Judge in the First Appellate Court after securing the records and hearing the arguments, vide judgment dated 31.12.2020, dismissed the appeal and confirmed the order of conviction and sentence.
11. Being further aggrieved by the same, the accused is before this Court.
-6-
NC: 2024:KHC:24811 CRL.RP No. 1048 of 2021
12. Reiterating the grounds urged in the revision petition, Sri.S.B.Halli, learned counsel for the revision petitioner vehemently contended that cheque was actually issued to the hands of John Peter towards the security and same has been misused by John Peter by handing over the same to the complainant firm. Therefore, there was no legally recoverable debt involved in Ex.P.4 and same has not been properly appreciated by learned Trial Magistrate while convicting the accused and not considered by learned Judge in the First Appellate Court, resulting in miscarriage of justice and thus, sought for allowing the revision petition.
13. He further pointed out that there is no proper service of notice and therefore, offence punishable under Section 138 of the Negotiable Instruments Act has not been committed by the accused.
14. Per contra, Sri.G.N.Subramani, learned counsel for the respondent supports the impugned judgments. -7-
NC: 2024:KHC:24811 CRL.RP No. 1048 of 2021
15. Having heard the parties in detail, this Court perused the material on record meticulously.
16. On such perusal of the material on record, it is crystal clear that the cheque is that of the accused and signature found therein is also that of the accused. According to the accused, cheque has been handed over to P.W.2 who in turn, handed it over to the complainant firm and same has been misused.
17. To substantiate the said aspect of the matter, no positive action has been taken by the accused, either by filing a police complaint or by issuing a legal notice or atleast after the accused put in appearance before the learned Trial Magistrate had the services of an Advocate. No proper explanation is also forthcoming in this regard. If at all, if John Peter who is examined as P.W.2, has misused the cheque as is contended by the accused, nothing prevented the accused to take action against John Peter.
-8-
NC: 2024:KHC:24811 CRL.RP No. 1048 of 2021
18. On the contrary, material evidence placed on record would go to show that accused did have the business transaction with the complainant Firm in purchasing the chicken as is found in the 26 invoices. Value Added Tax registration certificate was also filed before the Court to reflect the transaction between the accused and the complainant.
19. It is the specific case of the complainant that the cheque has been issued towards repayment of the chicken purchased by the accused from the complainant Firm. Accordingly, the complainant has discharged the initial burden to invoke the presumption available under Section 139 of the Negotiable Instruments Act.
20. No doubt, said presumption is a rebuttable presumption and therefore, accused has chosen to examine himself as D.W.1 and placed on record a cover as Ex.D.1. The said evidence was not sufficient to rebut the evidence placed on record by the complainant. -9-
NC: 2024:KHC:24811 CRL.RP No. 1048 of 2021
21. Coming to the question of non service of legal notice, legal notice contemplated under the statue is to allow a bonafide defaulter to make the payment within fifteen days. According to the accused, same is not served. Returned cover shows that address shown in the cover is that of the accused. Therefore, the contentions urged on behalf of the revision petitioner that there was no notice served on him and there was no commission of offence under Section 138 of the Negotiable Instruments Act, cannot be countenanced in law.
22. Till today, accused has not repaid the amount and therefore, he cannot be termed as a bonafide person to avoid the criminal liability. Accordingly, viewed from any angle, conviction is just and proper.
23. However, both the Courts have misdirected themselves in directing a sum of Rs.5,000/- to be paid as defraying expenses of the State which is impermissible having regard to the fact that lis is privy to the parties and no State machinery is involved.
- 10 -
NC: 2024:KHC:24811 CRL.RP No. 1048 of 2021
24. As such, to that extent, this Court needs to interfere in the revisional jurisdiction.
25. Accordingly, the following:
ORDER i. Criminal 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, the fine amount ordered by the learned Trial Magistrate confirmed by the First Appellate Court in a sum of Rs.3,05,000/- is modified to the sum of Rs.3,00,000/- and sum of Rs.5,000/- imposed as fine towards the State is hereby set aside. iii. Entire amount of Rs.3,00,000/- is to be paid as compensation to the complainant.
- 11 -
NC: 2024:KHC:24811 CRL.RP No. 1048 of 2021 iv. In default of payment fine amount, accused shall undergo simple imprisonment for a period of one year.
v. Accused is granted time till 25.07.2024 to pay the balance fine amount.
Sd/-
JUDGE kcm List No.: 1 Sl No.: 53