Karnataka High Court
M/S Jayess Steels vs Mr Mahendra Jolapara on 26 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:24251
CRL.RP No. 505 of 2016
C/W CRL.RP No. 504 of 2016
CRL.RP No. 506 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION No.505 OF 2016
C/W CRIMINAL REVISION PETITION No.504 OF 2016
CRIMINAL REVISION PETITION No.506 OF 2016
IN CRL.RP NO.505/2016
BETWEEN:
1. M/S JAYESS STEELS
NO.8/2, POTTERS COLONY
3RD CROSS, NEW BAMBOO BAZAAR,
BENGALURU-560 002.
A PARTNERSHIP FIRM
REPRESENTED BY ITS
PARTNERS
MR. SULTAN AHMED
PARTNER, M/S JAYESS STEELS,
MAJOR, R/O NO.13,
Digitally
signed by 18TH STREET,
MALATESH CHANDINI CHOWK ROAD CROSS,
KC BENGALURU-560 051.
Location:
HIGH
COURT OF 2. MR. A. JAMEEL AHMED
KARNATAKA PARTNER,
M/S JAYESS STEELS,
MAJOR,
R/O NO.47, SGN LAYOUT,
LALBAGH ROAD CROSS,
BENGALURU-560 001.
...PETITIONERS
(BY SRI BALARAJ A C, ADVOCATE)
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CRL.RP No. 505 of 2016
C/W CRL.RP No. 504 of 2016
CRL.RP No. 506 of 2016
AND:
MR MAHENDRA JOLAPARA
AGED ABOUT 51 YEARS,
S/O LATE SHANTHILAL BHAGWANJI,
30TH MAIN, J.P. NAGAR,
6TH PHASE,
BENGALURU-560 078.
...RESPONDENT
(BY SRI VIJAYKUMAR PRAKASH, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE XV
ADDL.C.M.M, BENGALURU IN C.C.NO.6806/2014 DATED
28.07.2015 AND OF ORDER OF THE LXVI ADDL. CITY CIVIL
AND S.J., BENGALURU PASSED IN CRL.A.NO.1087/2015 DATED
23.03.2016.
IN CRL.RP NO.504/2016
BETWEEN
1. M/S JAYESS STEELS
NO.8/2, POTTERS COLONY
3RD CROSS, NEW BAMBOO BAZAAR,
BENGALURU-560 002.
A PARTNERSHIP FIRM
REPRESENTED BY ITS
PARTNERS
MR. SULTAN AHMED
PARTNER, M/S JAYESS STEELS,
MAJOR, R/O NO.13,
18TH STREET,
CHANDINI CHOWK ROAD CROSS,
BENGALURU-560 051.
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NC: 2024:KHC:24251
CRL.RP No. 505 of 2016
C/W CRL.RP No. 504 of 2016
CRL.RP No. 506 of 2016
2. MR. A. JAMEEL AHMED
PARTNER,
M/S JAYESS STEELS,
MAJOR,
R/O NO.47, SGN LAYOUT,
LALBAGH ROAD CROSS,
BENGALURU-560 001.
...PETITIONERS
(BY SRI BALARAJ A.C, ADVOCATE)
AND
MR MAHENDRA JOLAPARA
AGED ABOUT 51 YEARS,
S/O LATE SHANTHILAL BHAGWANJI,
30TH MAIN, J.P.NAGAR,
6TH PHASE,
BENGALURU-560 078.
...RESPONDENT
(BY SRI VIJAYKUMAR PRAKASH, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE XV
A.C.M.M., BANGALORE IN C.C.NO.6805/2014 DATED
28.07.2015 AND OF ORDER OF THE LXVII ADDL. CITY CIVIL
AND S.J., BANGALORE PASSED IN CRL.A.NO.1086/2015 DATED
23.03.2016.
IN CRL.R.P.NO.506/2016
BETWEEN
1. M/S JAYESS STEELS
NO.8/2, POTTERS COLONY,
3RD CROSS, NEW BAMBOO BAZAAR,
BENGALURU-560 002
A PARTNERSHIP FIRM,
REPRESENTED BY ITS PARTNERS.
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CRL.RP No. 505 of 2016
C/W CRL.RP No. 504 of 2016
CRL.RP No. 506 of 2016
2. MR.SULTAN AHMED
PARTNER, M/S. JAYEES STEELS,
MAJOR, R/O NO.13, 18TH STREET,
CHANDINI CHOWK ROAD CROSS,
BENGALURU-560 051.
3 . MR A.JAMEEL AHMED
PARTNER, M/S. JAYEES STEELS,
MAJOR, R/O NO.47, SGN LAYOUT,
LALBAGH ROAD CROSS,
BENGALURU-560 001.
...PETITIONERS
(BY SRI BALARAJ A C, ADVOCATE)
AND
1 . MR MAHENDRA JOLAPARA
AGED ABOUT 51 YEARS,
S/O LATE SHANTHILAL BHAGWANJI,
30TH MAIN, J.P.NAGAR,
6TH PHASE,
BENGALURU-560 078.
...RESPONDENT
(BY SRI VIJAYKUMAR PRAKASH, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE ORDER PASSED BY THE XV
ADDL.C.M.M, BENGALURU IN C.C.NO.6807/2014 DATED
28.07.2015 AND OF ORDER OF THE LXVI ADDL. CITY CIVIL
AND S.J., BENGALURU PASSED IN CRL.A.NO.1088/2015 DATED
23.03.2016.
THESE PETITIONS, COMING ON FOR HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 505 of 2016
C/W CRL.RP No. 504 of 2016
CRL.RP No. 506 of 2016
ORDER
Heard Sri A.C.Balaraj, learned counsel for the petitioners and Sri Vijayakumar Prakash, learned counsel for the respondent.
2. Accused who have been convicted for the offence punishable under section 138 of the Negotiable Instruments Act in C.C Nos.6805/2014, 6806/2014 and 6807/2014 confirmed in Criminal Appeal Nos.1087/2015, 1086/2015, 1088/2015 have filed the present revision petitions.
3. Brief facts of the case which are utmost necessary for disposal of the present revision petitions are as under.
Case of the complainant is that accused No.1 is the partnership firm represented by accused Nos.2 and 3, had loan transaction in a sum of Rs.15,00,000/- for development of the business. Loan was paid through cheque. Complainant demanded repayment and accused issued three cheques amounting to Rs.4,50,000/-. Those cheques, on presentation, came to be dishonoured with an endorsement 'funds insufficient'. and legal notice returned with an endorsement -6- NC: 2024:KHC:24251 CRL.RP No. 505 of 2016 C/W CRL.RP No. 504 of 2016 CRL.RP No. 506 of 2016 'door locked'. Thereafter, action was sought for by the complainant against the accused.
4. The learned Trial Magistrate secured the presence of the accused and recorded the plea. Accused pleaded not guilty. Therefore, trial was held.
5. In order to prove the case of the complainant, complainant got examined himself as PW-1 and produced as many as fourteen documents, exhibited and marked as Exs.P1 to P 14.
6. Statement of the accused as is contemplated under Section 313 of the Code of Criminal Procedure was recorded wherein accused denied all the incriminating circumstances.
7. Accused No.2 got himself examined as DW-1 and marked documents as Ex. D.1. Thereafter, learned trial Magistrate heard the parties and, raising presumption in favour of the complainant and also taking into consideration the payment said to have been made by the accused vide Ex. D-1 to the complainant, convicted accused for the offence punishable under Section 138 of the Negotiable Instruments Act and -7- NC: 2024:KHC:24251 CRL.RP No. 505 of 2016 C/W CRL.RP No. 504 of 2016 CRL.RP No. 506 of 2016 awarded fine in a sum of Rs.15,50,000/- of which Rs.15,25,000/- was ordered to be paid as compensation to the complainant and balance amount in a sum of Rs.25,000/- as fine towards defraying expenses of the State.
8. The conviction order was challenged by the accused before the First Appellate Court.
9. The learned Judge in the first Appellate Court after securing the records, heard the parties and dismissed the appeal, confirming the order of conviction and sentence passed by the learned Trial Magistrate.
10. Thereafter, accused has filed these revision petitions assailing both orders of conviction.
11. Sri Balaraj, learned counsel for the revision petitioners contended that payments made by the accused to the complainant as is depicted in Ex.D-1 is not given due concession though the learned trial judge has referred the same in the impugned order of conviction. -8-
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12. He also pointed out that the transaction being admitted and part payment having been made, convicting the accused by imposing fine of Rs.15,50,000/- as against due even according to the complainant to the extent of Rs.12,00,000/- cheque is on the higher side and impermissible and thus sought for modifying the sentence in the event of this Court maintaining the conviction.
13. Per contra, Sri Vijay Kumar Prakash, learned counsel supports the impugned judgment by contending that even after giving all deductions as per Ex. D1, accused was due and therefore the cheque in question was to the tune of Rs.12,00,000/- which on presentation came to be dishonoured and therefore imposing fine of Rs.15,50,000/- is justified having regard to the number of years that the matter was pending before the learned trial Judge and first appellate Court.
14. Having heard the parties, this court perused the material on record meticulously.
15. On such perusal of the material on record, it is not in dispute that cheque in question was issued by the accused to -9- NC: 2024:KHC:24251 CRL.RP No. 505 of 2016 C/W CRL.RP No. 504 of 2016 CRL.RP No. 506 of 2016 the complainant, so also signature found therein is not in dispute. Transaction between the complainant and accused is also not in dispute in view of the fact that some repayment has been already made by the accused to the complainant vide Ex.D1.
16. According to accused learned trial Magistrate and the learned Judge in the first appellate Court did not consider the payment made vide Ex.D1.
17. Learned trial Magistrate in the impugned judgment has bestowed its attention to the said plea of the accused in paragraph 11 and its judgment.
18. Learned Judge in the first Appellate Court has also re- appreciated the said aspect of the matter and recorded conviction, which does not require interference by this Court, that too in the revisional jurisdiction by revisiting into the factual aspects.
19. Having said this, it is seen that in the business transaction amount has been lent and till today complainant is not able to recover the entire cheque amount.
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20. Therefore, fine imposed by the learned Trial Magistrate confirmed by the learned Judge in the first Appellate Court in a sum of Rs.15,25,000/- as compensation payable to the complainant needs no interference.
21. However, since lis is privy to the parties and no State machinery is involved, awarding Rs.25,000/- towards defraying expenses to the State needs interference by this court in this revision petition.
22. Accordingly, the following.
ORDER
(i) Revision petitions are allowed in Part.
(ii) While maintaining the conviction of the accused for the offence punishable under section 138 of the Negotiable Instruments Act, fine amount ordered by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court in a sum of Rs.15,50,000/- is reduced to Rs.15,25,000/- and entire sum is payable as compensation to the
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NC: 2024:KHC:24251 CRL.RP No. 505 of 2016 C/W CRL.RP No. 504 of 2016 CRL.RP No. 506 of 2016 complainant failing which accused shall undergo simple imprisonment for a period of 2 years.
(iii) Time is granted up to 25th July 2024 to pay the balance amount.
(iv) Fine in a sum of Rs.25,000/- imposed by the learned trial Magistrate towards defraying expenses of the State is hereby set aside.
(v) Amount in deposit, if any, is order to be released in favour of the complainant.
(vi) Office is directed to return the trial code records forthwith.
Sd/-
JUDGE kcm List No.: 1 Sl No.: 66