Karnataka High Court
Santosh Kumar vs Alvares & Thomas(R) on 26 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:24316
CRL.RP No. 1123 of 2018
R
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. 1123 OF 2018
BETWEEN:
SANTOSH KUMAR,
S/O K. GANAPATHY BHAT,
AGED ABOUT 59 YEARS,
PROPRIETOR SANGEETHA MARBLES,
AND MINERALS NO.102,
POOJAN APARTMENT,
VITHOBA TEMPLE ROAD,
MANGALURU-575 001
...PETITIONER
(BY SRI. S.N. BHAT, ADVOCATE)
AND:
Digitally ALVARES & THOMAS(R)
signed by R A PARTNERSHIP CONCERN, ALVARES CENTRE,
MANJUNATHA
Location: NANTHOOR, MANGALURU,
HIGH COURT REP. BY ITS PARTNERS,
OF
KARNATAKA HELEN ALVARES REIN,
W/O. STEPHAN REIN CHRISTIAN,
AGED ABOUT 44 YEARS,
ALVARES CENTRE, NANTHOOR,
MANGALURU-575 001
...RESPONDENT
(BY SRI. SHARATH S KULKARNI, ADVOCATE FOR
SRI. L. GOVINDRAJ, ADVOCATE)
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NC: 2024:KHC:24316
CRL.RP No. 1123 of 2018
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C TO
SET ASIDE THE ORDERS PASSED BY THE THIRD ADDITIONAL
DISTRICT AND SESSION JUDGE, MANGALURU, D.K., DATED
15.09.2018 IN CRIMINAL APPEAL NO.172/2017 AND ALSO
JUDGMENT PASSED BY THE FIRST ADDITIONAL CIVIL JUDGE
AND JMFC, MANGALURU, DATED 27.11.2017 IN
C.C.NO.1729/2010.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. S.N.Bhat for petitioner and Sri. Sharath Kulakarni for respondent.
2. Accused who suffered on order of conviction in C.C.No.1729/2010 confirmed in Crl.A.No.172/2017 for the offence punishable under Section 138 of the NI Act and ordered to pay fine amount of Rs.64,53,262/- out of which sum of Rs.64,33,262 was to be paid as compensation to the complainant and balance amount of Rs.20,000/- towards the defraying expenses of the State has preferred the present revision petition.
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NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018
3. Facts in brief which are most relevant to the disposal of the revision petition are as under:
4. Complainant contended that complainant, a partnership concern was carrying on the business of clearing and forwarding at Karwar and Mangaluru and other places. Towards the clearing and handling charges of iron ore shipment of the accused, complainant accepted an order by the accused on 19.01.2009 at Karwar by raising an invoice on 20.01.2009.
5. As per the terms of the contract, a sum of Rs.99,24,376/- was due to the complainant by the accused from the invoice. In respect of the said dues, a sum of Rs.30,00,000/- was paid by the accused by cheque. After clearing the said amount, still a sum of Rs.69,24,376/- was the amount that was due by the accused to the complainant. In that regard, after sufficient persuasion, the cheque bearing No.199870 dated 02.02.2009 in a sum of Rs.64,33,262/- was issued by the accused drawn on Canara Bank, Balmatta, Mangalore after deducting the TDS amount of Rs.2,17,164/-.
6. Said cheque on presentation came to be dishonored. Fact of dishonour was intimated to the accused. -4-
NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018 According to complainant, accused replied stating that they could not arrange the amount covered under the cheque and requested the complainant to represent the same in the month of April-2009. Accordingly, the cheque was represented on 09.04.2009. But again the cheque was dishonoured with an endorsement 'Exceeds Arrangement' and therefore, a legal notice was caused to the accused by the complainant.
7. The legal notice was served on the accused and there was no compliance to the callings of the notice nor there was any reply. Thereafter complainant approached the Trial Magistrate to take action against the accused for the offence punishable under Section 138 of NI Act.
8. Learned Trial Magistrate took cognizance and summoned the accused, recorded the plea. Accused pleaded not guilty and therefore, Trial was held.
9. In-order to establish the case of the complainant in all 5 witnesses were examined as PWs.1 to 5 and as many as 31 documents were placed on record which were executed and marked as Exs.P1 to P31.
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10. Accused statement as is contemplated under Section 313 of Cr.P.C. was recorded by the Trial Magistrate, wherein, accused has denied all the incriminatory circumstances found against him.
11. To rebut the evidence placed on record by the complainant, accused got examined himself as DW.1 and placed on record 2 documents namely quatation dated 05.01.2009 furnished by the complainant and statement of account dated 08.05.2016 as Exs.D1 and D2.
12. Learned Trial Judge heard the parties in detail and after appreciating the oral and documentary evidence placed on record by the parties in a cumulative manner, convicted the accused for the offence punishable under Section 138 of the NI Act and passed the sentence as referred supra.
13. Being aggrieved by the same, accused preferred an appeal before the district Court in Crl.A.No.172/2017. Learned Judge in the First Appellate Court, secured the records and in the light of the appeal grounds and the arguments put forward on behalf of the parties, not only accepted the reasoning recorded by the Trial Magistrate for convicting the accused but -6- NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018 also supplemented additional reasons for maintaining the conviction order and dismissed the appeal.
14. Being further aggrieved by the same, accused is before this Court.
15. Sri.S.N.Bhat, learned counsel representing the accused-revision petitioner vehemently contended that in the case on hand, transaction is not in dispute.
16. He further contended that while shifting the iron ore, from Belikeri to Karwar port, there were loss of iron ore and the same was intimated by the accused to the complainant and therefore, the liability as is found in the statement of account between the parties was incorrect and complainant was bound to give deduction to the loss of iron ore in the invoice value which has not been properly taken into consideration by the learned Trial Judge and the learned Jude in the First Appellate Court and therefore, the cheque which has been presented on 06.02.2009, on dishonour the matter was discussed by the parties and there was no direction by the accused to represent the cheque again on 09.04.2009 and therefore, there was no offence committed by the accused -7- NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018 under Section 138 of the NI Act and sought for allowing the revision petition.
17. He also contended that when there was an intimation by the complainant to the accused about the dishonour of the cheque on 06.02.2009, it should be construed as a constructive notice to the accused and the limitation to file the compliant would have commenced after 15 days of 06.02.2009 and representing the cheque without further instructions by the accused in writing to the complainant on 09.04.2009 would not make out a fresh cause of action for the complainant to proceed action against for the offence punishable under Section 138 of the NI Act and said aspect of the matter has not been properly appreciated by both the Courts in proper perspective and sought for allowing the revision petition.
18. He further argued that in the cross examination there is crystal clear admission that there was loss in the transportation of iron ore from Belikerei to Karwar and same has not been given any proper deduction in the statement of account by the complainant resulting in the invoice amount got -8- NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018 modified and the liability under the cheque being not there the conviction of the accused under Section 138 of the NI Act is impermissible and sought for allowing the revision petition.
19. Per contra Sri. Sharath Kulakarni learned counsel representing the respondent supports the impugned judgment.
20. He pointed out that no notice was issued to the accused in writing therefore, there was no embargo on the complainant to represent the cheque on 09.04.2009 as per the oral instructions of the accused and legal notice came to issued after second dishonour and thereafter compliant being filed to the Jurisdictional Magistrate is well within time and perfectly justified and sought for dismissal of the revision petition.
21. He also pointed out that the alleged loss of iron ore is not properly established by the accused and moreover having regard to the presumption available to the complainant under Section 139 of the NI Act, that the cheque is issued either for the entire legally recoverable debt or part legally recoverable debt has been rightly invoked by both the Courts and therefore, the conviction and sentence is just and proper. -9-
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22. He also pointed out that the plea of the accused is in the nature of set of counter claim which is impermissible and alien to the criminal jurisdiction and therefore, said plea of the accused cannot be countenanced in law and sought for dismissal of the revision petition.
23. Having heard the parties in detail this Court perused the material on record meticulously.
24. On such perusal of the material on record it is crystal clear that the transaction between the complainant and accused is established. Like wise issuance of the cheque and the signature of the accused in the dishonoured cheque is not in dispute.
25. Even according to the accused, sum of Rs.30,00,000/- has been paid towards the invoice value and for the balance amount the cheque came to be issued. But the accused has taken up a contention that the complainant failed to properly transport the iron ore from Belikere to karwar as per the contract.
26. According to accused, there were deficiency in the quantity of iron ore and there was loss in between. Accordingly,
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NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018 the accused is not obliged to pay the entire amount covered under the cheque. To substantiate the said aspect of the matter, accused has chosen to examine himself as DW.1 and produced two documents namely quotation dated 05.01.2009 as Ex.D1 and statement of account dated 08.05.2016 as Ex.D2.
27. In-order to establish the entire the amount covered under the cheque is due amount that is payable by the accused to the complainant, as many as 5 witnesses have been examined on behalf of the complainant.
28. The learned Trial Judge took into considerations the rival contentions of the parties and has also culled out in the Trial Court judgment, the cross examination with regard to he fact that about 810 metric ton iron ore was being transported from belikeri to Karwar there were some deficiencies. He also stated that for such loss deficiencies in the quantity it is the complainant who is responsible.
29. While considering such admission, the Trial Magistrate further took into consideration that if there is any deficiency, the remedy for the accused lies elsewhere and for
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NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018 which purpose the liability under the cheque cannot be avoided by the accused.
30. No such action has been taken by the accused with regard to the deficiency in the quantity or loss of iron ore during transportation. What exactly is the quantity that has been lost while transporting the iron ore and whether that affected the contracted terms are all matters which can not be the subject matters of adjudication in an offence punishable under Section 138 of the NI Act.
31. Crowning all these things accused kept quite in not replying the legal notice after the second dishonour on 09.04.2009. Non answering the callings of the notice are to be considered having a probative value while rising presumption in favour of the complainant under Section 139 of the NI Act.
32. No doubt the presumption under Section 139 of the NI Act is a rebuttal presumption. How exactly such presumption is to be rebutted depends on facts and circumstances of each case. In the case of hand, the plea that has been raised by the accused while examining himself as DW.1 and placing Ex.D1 and D2, is in the nature of a set which is impermissible in so far
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NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018 as the adjudication for an offence punishable under Section 138 of the NI Act the procedure for conducting the Trial under Section 138 of the NI Act is summary in nature.
33. Further, it was always open for the accused to come forward and pay the admitted due amount. It is not the case of the accused that the loss of iron ore during transportation is to the extent of entire amount of Rs.64,33,262/-. If that would be so, what prevented the accused while issuing the cheque to mention that the cheque is issued in respect of a particular quantity subject to the final settlement between the complainant and accused. More over it is also the seen that the accused has deducted the tax at the source in a sum of Rs.2,17,154/-.
34. If at all the accused is not liable to pay sum of Rs.69,24,376/, why would he deduct the tax at source for a sum of Rs.64,17,164 and issued the cheque in a sum of Rs.64,33,262/- is a question that remains unanswered.
35. Under the circumstances, the rebuttal evidence placed on record by the accused was found insufficient to accept the version of the accused that he is not liable to pay
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NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018 the cheque amount and rightly convicted by the learned Trial Judge for the offence punishable under Section 138 of the NI Act.
36. Insofar as the representation of the cheque on 09.04.2009 is concerned, since, there was no notice issued by the complainant when the cheque got dishonoured on 06.02.2009, the complaint possessed the right to represent the cheque any number of times within a period of six months from the date of issuance of notice. Cause of action to take action would arise only when the legal notice in writing issued by the complainant and not the oral intimation to the accused. Therefore, the contentions urged on behalf of the accused/revision petitioner that complainant is barred by time cannot be countenanced in law. In fact in the case of MSRS. LEATHERS V/S. PALANIYAPPAN reported in 2012(7) SUPREME COURT 68 and KAMALESH KUMAR V/S. STATE OF BIHAR AND ANOTHER reported in 2014(1) CRIMES S.C.
108. The Hon'ble Apex Court has held that prosecution based on second or successive dishonour of cheque in also permissible so long as such successive prosecution satisfy the requirements stipulated in the proviso of section 138 of NI Act.
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37. The learned Judge in the First Appellate Court while considering case of the accused by revisiting to the aspects of the matter, not only accepting the reasoning assigned by the learned Trial Judge, while recording the order of conviction but also supplemented to additional reasons for maintaining the conviction.
38. This Court, that too in the revision jurisdiction, can not revisit into the factual aspects of the matter having regard to the scope of the reasons as is held by the Hon'ble Apex Court in the case of AMIT KAPUR V/s. RAMESH CHANDER AND ANOTHER reported in (2012) 9 SCC 460.
39. Suffice to say that the material evidence available on record would make out a case that the complainant in seeking an order of conviction to be confirmed by this Court also. As such, this Court does not find any one of the grounds urged in the revision petition is having merits so as to set aside the finding of conviction recorded by the Trial Court confirmed by the First Appellate Court. Accordingly, the conviction is maintained.
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40. Having said thus, both the Courts have erred in imposing sum of Rs.20,000/- as fine amount towards the defraying expenses of the State as the lis is privy to the parties and no State machinery is involved. Accordingly, to that extent, the judgments needs to be interefered by this Court, in this revision.
41. 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.64,53,262/- is modified to sum of Rs.64,33,262/- and sum of Rs.20,000/- imposed as fine towards the State is hereby set aside. iii. Entire amount of Rs.64,33,262/- is to be paid as compensation to the complainant.
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NC: 2024:KHC:24316 CRL.RP No. 1123 of 2018 iv. In default of payment fine amount, accused shall undergo simple imprisonment for a period of six months.
v. Accused is granted time till 30.07.2024 to pay the balance fine amount.
Sd/-
JUDGE LDC,KAV List No.: 1 Sl No.: 36