Karnataka High Court
Shree Mallikarjuna A vs Shree Rajeev Reddy @ Chandrashekar ... on 2 July, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:24662
CRL.RP No. 410 of 2021
C/W CRL.RP No. 405 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 410 OF 2021
C/W
CRIMINAL REVISION PETITION NO. 405 OF 2021
IN CRL.RP NO.410/2021
BETWEEN:
SHREE. MALLIKARJUNA A,
SON OF ALEGOWDA,
AGED ABOUT 38 YEARS,
PROPRIETOR OF M/S. DEVI POWER ASSOCIATES,
B.G. PALYA CIRCLE, TUMKUR - 572 101.
...PETITIONER
(BY SRI. N. JAGADISHA BALIGA, ADVOCATE)
AND:
SHREE RAJEEV REDDY @
Digitally
signed by R CHANDRASHEKAR REDDY,
MANJUNATHA AGED ABOUT 43 YEARS, PROPRIETOR
Location:
HIGH COURT M/S. VYDURYA MARKETING,
OF NO.56, 2ND FLOOR, POST OFFICE ROAD,
KARNATAKA
YALACHENAHALLI, J.P. NAGAR 6TH PHASE,
BENGALURU - 560 078.
...RESPONDENT
(BY SRI. GADILINGAPPA G.M, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED ORDER OF DISMISSAL
OF CRL.A.NO.68/2017 DATED 16.03.2020 OF THE LEARNED
LXVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
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NC: 2024:KHC:24662
CRL.RP No. 410 of 2021
C/W CRL.RP No. 405 of 2021
BENGALURU IN CONFIRMING THE JUDGMENT OF CONVICTION
AND SENTENCE DATED 13.12.2016 PASSED BY XXIII A.C.M.M.,
AT BENGALURU IN C.C.NO.9140/2010 AND SET ASIDE BY THE
ORDER OF COURT BELOWS, BY ALLOWING THIS CRL.RP.
IN CRL.RP NO.405/2021
BETWEEN:
SHREE. MALLIKARJUNA A,
SON OF ALEGOWDA,
AGED ABOUT 35 YEARS,
PROPRIETOR OF M/S. DEVI POWER ASSOCIATES,
B.G. PALYA CIRCLE, TUMKUR.
...PETITIONER
(BY SRI. N. JAGADISHA BALIGA, ADVOCATE)
AND:
SHREE RAJEEV REDDY @
CHANDRASHEKAR REDDY,
AGED ABOUT 40 YEARS, PROPRIETOR
M/S. VYDURYA MARKETING,
NO.56, 2ND FLOOR, POST OFFICE ROAD,
YALACHENAHALLI, J.P. NAGAR 6TH PHASE,
BENGALURU - 560 078.
...RESPONDENT
(BY SRI. GADILINGAPPA G.M, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED ORDER OF DISMISSAL OF
CRL.A.NO.67/2017 DATED 16.03.2020 OF THE LEARNED LXVII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
IN CONFIRMING THE JUDGMENT OF CONVICTION AND
SENTENCE DATED 13.12.2016 PASSED BY XXIII A.C.M.M., AT
BENGALURU IN C.C.NO.9043/2010 AND SET ASIDE BY THE
ORDER OF COURT BELOWS, BY ALLOWING THIS CRL.RP.
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NC: 2024:KHC:24662
CRL.RP No. 410 of 2021
C/W CRL.RP No. 405 of 2021
THESE PETITIONS, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.N.Jagadisha Baliga, learned counsel for the revision petitioner and Sri.G.M.Gadilingappa, learned counsel for the respondent.
2. These two revision petitions are filed by the revision petitioner challenging the order of conviction and sentence passed in CC Nos.9140/2010 and 9043/2010 which was confirmed in Criminal Appeal Nos.68/2017 and 67/2017 for the offence punishable under Section 138 of the Negotiable Instruments Act.
3. Brief facts of the case which are utmost necessary for disposal of the revision petition are as under:
3.1. Accused and the complainant were dealers in the Ultra Motors Company. In respect of closure of the show rooms at Bengaluru and Mysore, there was an agreement between the accused and the complainant that -4- NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021 the furniture, interior partition etc., which were available in the showroom and which were in possession of the complainant was given to the accused and value of those furniture, interior partition etc., were fixed at Rs.2,50,000/-.
3.2. Towards the payment of Rs.2,50,000/-, accused passed on four cheques. Among them, three cheques were dishonored and action was initiated. In respect of one such dishonored cheque, there was an order of acquittal of the accused on the ground that the payment covered under the said cheque was not taken into account by the complainant. The order of acquittal has become final. In respect of remaining two cheques, the complainant filed two complaints which were subject matter of CC No.9140/2010 and 9043/2010.
4. The learned Trial Magistrate after taking cognizance, secured the presence of the accused and recorded the plea. Accused pleaded not guilty. Therefore, the trial was held.-5-
NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021
5. In order to prove the case of the complainant, complainant got examined as P.W.1 and relied on six documentary evidence on record which were exhibited and marked as Exs.P.1 to Ex.P.6 comprising of complaint as Ex.P.1, original cheque as Ex.P.2, signature of the accused as Ex.P.2(a), bank endorsement as Ex.P.3, office copy of the legal notice as Ex.P.4, postal receipt and acknowledgement as Exs.P.5 and 6. In the cross- examination of P.W.1, no positive material is elicited so as to dislodge the presumption available to the complainant under Section 138 of the Negotiable Instruments Act.
6. As against the evidence placed on record by the complainant, accused himself as D.W.1 and no documentary evidence were placed on record. Accused took up the contention that when he was about to clear the dues, he received an email from the Ultra Motors to the effect that the infrastructure in the form of interior partition, furniture etc., belongs to the Ultra Motors -6- NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021 company and complainant is not the owner and therefore, he had to withhold the payment to the complainant.
7. In order to prababilise such a defence, accused did not chose to examine any officials from the Ultra Motors Company nor the alleged email correspondence is placed on record.
8. Taking note of these aspects of the matter and raising the presumption as is available to the complainant under Section 139 of the Negotiable Instruments Act, learned Trial Magistrate convicted the accused in both the cases and imposed fine in a sum of Rs.1,00,000/- each, out of which Rs.95,000/- was ordered to be paid as compensation to the complainant and balance sum of Rs.5,000/- is ordered to be appropriated towards the defraying expenses of the State.
9. Being aggrieved by the said order of conviction and sentence passed by the learned Trial Magistrate, the -7- NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021 accused preferred the appeal before the First Appellate Court in Criminal Appeal Nos.68/2017 and 67/2017.
10. The learned Judge in the First Appellate Court after securing the records and hearing the arguments, vide judgment dated 16.03.2020, dismissed both the appeals and confirmed the order of conviction and sentence.
11. Being further aggrieved by the same, the accused is before this Court in this revision.
12. Reiterating the grounds urged in the revision petition, learned counsel for the revision petitioner vehemently contended that the dispute between the complainant and the accused is genuine dispute inasmuch as, an e-mail came to be received from the Ultra Motors company that the furniture, interior partition belonged to them and as such, as a prudent person, accused issued stop payment instructions to his banker and as such, learned Trial Magistrate and learned Judge in the First Appellate Court misdirected themselves in holding that -8- NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021 cheques in question was issued towards the legally recoverable debt. Therefore, sought for allowing the revision petition.
13. He also pointed out that in respect of four cheques, accused has honored one cheque and in respect of yet another cheque, after context, the learned Trial Magistrate acquitted the accused which has become final shows that all is not well in the relationship of the complainant and accused, resulting in complainant misusing the cheques which were handed over to the hands of the complainant by the accused under the bonafide agreement with regard to the furniture and interior partition, infrastructure that were available in the showrooms at Bengaluru and Mysuru which were in occupation of the complainant and handed over to the accused and thus, sought for allowing the revision petition.
14. Per contra, learned counsel for the respondent supports the impugned judgment.
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NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021
15. In the light of the arguments that has been put forth on behalf of the parties, this Court perused the material on record meticulously.
16. On such perusal of the material on record, it is crystal clear that there was an agreement with regard to the furniture and interior partition and other infrastructure available in the showroom occupied by the complainant when he was the dealer of Ultra Motors Company which was handed over to the accused.
17. The value of those furniture, interior partition etc., was fixed at Rs.2,50,000/- as per the parties, but the learned Trial Magistrate has recorded the finding that it is for Rs.2,00,000/-. The complainant has not challenged the said finding. Therefore, the cheques in question were parted away by the accused to the hands of the complainant in respect of the said transaction.
18. Non honoring the cheques in question is not in dispute. Cheques were admittedly dishonored with an
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NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021 endorsement 'stop payment'. It is settled principles of law and requires no emphasis that to invoke the validity of the stop payment endorsement, it is incumbent on the holder of the account (accused) to establish before the Court that as on the date of presentation of the cheque, there was enough balance to honor the cheque amount plus the minimum balance. No such evidence is placed on record by the accused. In the absence of any such evidence placed on record by the accused, even though the cheque is dishonored with an endorsement 'stop payment', it should be construed as 'insufficient funds'.
19. The second ground on which that the accused is trying to defend the action initiated by the complainant is that there was an e-mail correspondence by the Ultra Motors Company stating that the infrastructure, furniture etc., is belonging to the Ultra Motors Company and therefore, he was not liable to pay the complainant.
20. To probabilise such a defence, except the oral testimony of the accused, no other evidence is placed on
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NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021 record. Atleast an official from the Ultra Motors Company would have been examined on behalf of the accused to establish that in fact such an email was sent by the Ultra Motors Company and complainant was only a franchise of the Ultra Motors Company and therefore, infrastructure was provided by the Ultra Motors Company nor that email correspondence is placed on record by the accused so as to prove his defence.
21. Under such circumstances, when there is a transaction that has been admitted by the accused to the effect that accused is in possession of the furniture and other infrastructure available in the showroom at Bengaluru and Mysuru which was erstwhile in the occupation of the complainant and accused had agreed to pay sum of Rs.2,00,000/- towards the value of the said infrastructure, learned Trial Magistrate and learned Judge in the First Appellate Court were justified in recording an order of conviction under Section 138 of the Negotiable Instruments Act as against the accused.
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NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021
22. Therefore, this Court, in this revision, does not find any good grounds to interfere with the order of conviction.
23. Having said thus, both the Courts have misdirected themselves in ordering sum of Rs.5,000/- as fine amount towards the defraying expenses of the State in each of the cases.
24. Since, the lis is privy to the parties and no State machinery is involved, imposing fine amount of Rs.5,000/- towards the defraying expenses of the State cannot be countenanced in law in each of the cases.
25. Accordingly, the following:
ORDER i. Criminal Revision Petitions are allowed in part.
ii. While maintaining the conviction of the accused for the offence punishable under
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NC: 2024:KHC:24662 CRL.RP No. 410 of 2021 C/W CRL.RP No. 405 of 2021 Section 138 of the Negotiable Instruments Act, the fine amount ordered by the learned Trial Magistrate confirmed by the First Appellate Court in each of the cases, in a sum of Rs.1,00,000/- is modified to the sum of Rs.95,000/- and sum of Rs.5,000/- imposed as fine towards the State is hereby set aside.
iii. Entire amount of Rs.95,000/- is to be paid as compensation to the complainant in each of the cases.
iv. In default of payment of fine amount on or before 25.07.2024, accused shall undergo simple imprisonment for a period of six months.
Sd/-
JUDGE KAV List No.: 1 Sl No.: 34 CT: BHK