B.V.Prakash vs The Annavara Adike Company ...
2021 Latest Caselaw 5464 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 4TH DAY OF DECEMBER, 2021

                     BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO. 283/2019

BETWEEN

B.V.PRAKASH
S/O. VENKATAGIRIYAPPA,
AGED ABOUT 58 YEARS
R/O VINOBHANAGARA, SAGARA TOWN,
SAGAR- 577 401.
SHIVAMOGGA DISTRICT
                                     ...PETITIONER
(BY SRI RAJENDRA .S, FOR
SRI S V PRAKASH, ADVOCATES)

AND

THE ANNAVARA ADIKE COMPANY LIMITED
(A PUBLIC LIMITED COMPANY),
HAVING ITS OFFICE AT J C ROAD,
SAGAR TOWN,
SAGAR 577 401.
SHIVAMOGGA DISTRICT,
REP. BY ITS EXECUTIVE DIRECTOR
                                     ...RESPONDENT
(BY SRI R.V.JAYAPRAKASH, ADVOCATE)
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     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED
20.11.2018 PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, SHIVAMOGGA (SITTING AT SAGAR) IN
CRL.A.NO.10010/2018 CONFIRMING THE JUDGMENT AND
ORDER OF CONVICTION DATED 27.02.2018 PASSED BY
THE PRINCIPAL SENIOR CIVIL JUDGE AND J.M.F.C.,
SAGAR    IN    C.C.NO.126/2010   CONVICTING      THE
PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I. ACT.

    THIS CRIMINAL REVISION PETITION COMING ON
FOR REPORTING SETTLEMENT THIS DAY, THE COURT
MADE THE FOLLOWING:-

                           ORDER

Heard Sri. Rajendra S., learned counsel appearing for

Sri S.V.Prakash, learned counsel for the Revision Petitioner

and Sri R.B.Jayaprakash, learned counsel for the

respondent and perused the records.

2. This Revision Petition is filed by the accused,

who suffered an order of conviction in C.C.No.126/2010 on

the file of the Principal Senior Civil Judge and JMFC, Sagar

by Judgment dated 27.02.2018, whereby he has been

convicted for the offence punishable under Section 138 of

Negotiable Instrument Act, which was confirmed in

Criminal Appeal No.10010/2018, on the file of the V

Additional District and Sessions Judge, Shivamogga sitting

at Sagar by judgment dated 20.11.2018.

3. Brief facts of the case are as under:

Respondent/complainant filed a complaint before the

jurisdictional magistrate stating that the accused is

carrying on areca nut business in the name and style of

Manish Traders and he used to purchase the goods from

the complainant on credit basis by executing necessary

documents. In respect of the dues payable to the

complainant, a promisory note came to be executed in a

sum of Rs.1,80,000/-. To repayment of the said loan with

interest, accused passed on a cheque bearing No.496974

dated 03.06.2003 in a sum of Rs.2,00,000 which on

presentation came to be dishonored. The statutory notice

came to be issued and the same is served on 26.06.2003.

But the accused failed to comply the callings of the legal

notice and accordingly, action was sought against the

accused by the complainant.

4. The learned Magistrate after completing the

formalities, secured the presence of the accused and plea

was recorded. Accused pleaded not guilty and as such, trial

was held.

5. In order to prove the case of the complainant,

complainant himself got examined as PW.1 and relied on

10 documentary evidence which were marked and

exhibited as Exs.P1 to 10.

6. Accused statement as contemplated under

Section 313 Cr.P.C was recorded thereafter, wherein

accused denied all the incriminatory circumstances found

in the prosecution evidence. In order to rebut the

presumptions available to the complainant under Section

118 and 139 of NI Act, accused examined himself as

DW.1. However, accused did not relied on any

documentary evidence.

7. The learned Magistrate on conclusion of the

trial, heard the parties in detail about the merits of the

matter and after appreciating materials on record,

concluded that the accused has committed an offence

punishable under Section 138 of NI Act and passed an

order whereby accused was directed to pay fine of

Rs.10,000/- to the State and sum of Rs.4,00,000/- as

compensation to the complainant which is doubled the

cheque amount.

8. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.10010/2018.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, dismissed the

appeal by judgment dated 20.11.2018. Thereafter, the

accused is in the Revision Petition.

9. In the Revision Petition, the following grounds

are raised:

The impugned judgment and order of conviction passed by the courts below are highly illegal, unreasonable and opposed to law and facts.

The courts below have committed serious irregularities and illegalities in exercising jurisdiction vested on them under law and also while appreciating the evidence on record and the entire approach of the courts below into the matter is erroneous in law.

The courts below have failed to notice that the complainant has utterly failed to prove the case beyond reasonable doubt and the accused ought to have been acquitted.

The complainant has failed to fulfill the mandatory requirements of Section 138 of Negotiable Instruments Act and in the circumstances, the courts below committed serious error in convicting the accused.

The courts below have failed to appreciate the evidence on record if considered in proper perspective, it can't be said that the complainant has made out a case to prove that the accused has committed the offence punishable under Section 138 of Negotiable Instruments Act, 1881. The complainant has not produced any iota of evidence to show that the accused issued the cheque in its favour for discharge of legally enforceable debt or liability. The courts below have failed to appreciate this aspect of the matter.

The complainant has not made out proper grounds to convict the accused and the courts below have not considered the oral and documentary evidence made available on record in the right perspective and in the circumstances, the petitioner visited with total miscarriage of justice.

The impugned order of conviction passed by the courts below solely based on the presumption available under Sections 118 and 139 of Negotiable Instruments Act is bad in law being contrary to the law declared by the Hon'ble Apex Court. Therefore, the impugned order of conviction is liable to be set aside.

The courts below have not noticed that the PW1 who is said to be the Executive Director of the complainant company did not have the authorization to lodge the complaint and to give evidence on behalf of the company. It is needless to point out that the complainant is a company which is juridical person and it should be represented by one of the officers of the company. There is no authority produced by PW1 to show that he is authorized to lodge the complaint and give evidence. At the end of the trial, the PW1 produced Xerox copy of authority letter and same could not have been accepted by the

courts below. In the circumstances, the impugned judgment and order of conviction not be sustained.

The courts below have not noticed that the complainant admitted that the accused used to purchase the areca nut from the company and used to take delivery of the areca nut so purchased and he was accommodated with an account and that he used to lake delivery of the areca nut on credit basis and he was found due in a sum of 1,80,000/-. The accused has denied the same contending that at the time of commencement of his business, he had deposited the blank cheque and other papers as a security and he was not in due to the complainant as stated by the complainant. Admittedly, the complainant did not produce the documents which are in its custody and possession in order to establish that the cheque in question was issued in discharge of legally enforceable debt. In the circumstances, the courts below ought to have drawn adverse inference against the complainant.

Both the courts below have proceeded on the basis that they are dealing with a civil case for recovery of amount. The proceedings under Section 138 of Negotiable Instruments Act, 1881 is criminal proceedings and that the standard of evidence required is that of an offence under Indian Penal

Code and the complainant is required to prove the offence alleged against the accused beyond all reasonable doubts.

The courts below failed to notice that the writings appeared in the cheque are not that of the accused and the age of the ink relating to the signature found in the cheque and other writings in the cheque are different so also the ink. Therefore, the defense of the accused is probable that the blank cheque given by him to the complainant at the time of commencement of business was made use of against the accused. This important aspect has not been considered at all by the courts below.

The courts below have committed serious error in not appreciating that even according to the complainant, the amount due from the accused is only 1,80,000/-. No documents are produced to show that there was an agreement between the complainant and the accused for payment of interest at the rate of 20%. In absence of the same, the courts below could not have directed the accused to pay the sum of 4,00,000/- an amount which is more than double the cheque amount.

The courts below committed an error in not appreciating that the Hon'ble Apex Court in umpteen numbers of cases held that there cannot be a

conviction of a person under Section.138 of Negotiable Instruments Act, 1881 solely on the basis of presumption available under Sections 118 and 139 of Negotiable Instruments Act, 1881. In the case on hand also, courts below proceeded to convict the accused solely based on the presumption available under Sections 118 and 130 of Negotiable Instruments Act, 1881.

Viewed the matter from any angle and regard being had to the law declared by the Hon'ble Apex Court and the materials made available on record, it cannot be said by any stretch of imagination that accused committed an offence punishable under Section 138 of Negotiable Instruments Act."

Reiterating the above grounds, learned counsel for the

Revision Petitioner vehemently contended that both the

Courts have not properly appreciated the materials on

record and wrongly convicted the accused resulting in

miscarriage of justice and thus, sought for allowing the

Revision Petition. He also pointed out that there is no

materials on record to justify the imposition of double the

cheque amount of fine and sought allowing the revision

petition.

10. Per contra, learned counsel for the

respondent/complainant supported the impugned

judgment and sought for dismissal of the Revision Petition

as none of the grounds in Revision Petition are having

merit.

11. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused is guilty of the offence punishable under Section 138 of NI Act which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

12. In the case on hand, issuance of cheque and

signature found therein and the signature of the accused in

a Ex.P1 Promissory Note stands established by placing

necessary oral and documentary evidence. Admittedly,

cheque on presentation came to be dishonored and the

statutory legal notice stood not complied. Therefore, initial

burden cast on the complainant to raise presumption in

favour of the complainant under provision of Sections 118

and 139 NI Act stands discharged by the complainant. In

order to rebut the presumption available to the

complainant, the accused examined himself as DW.1.

However, he only denied the transaction and that denial is

only self serving testimony and therefore, is not capable

discharging the presumption available to the complainant.

Admittedly, the signature found in Ex.P1 being that of the

accused and cheque is also that of the accused. The

accused was required to place contra evidence on record

as to under what circumstances the documents came to be

issued. The accused is not a stranger to the complainant

and he was having business transactions and there were

business transactions between the parties. Under these

circumstances, in the absence of sufficient materials placed

by the accused to rebut the presumption available to the

complainant, Trial Magistrate was justified in recoding a

finding that the accused is guilty of the offence punishable

under Section 138 of NI Act which has been rightly re-

appreciated by the learned Judge in the first Appellate

Court.

13. In view of the grounds urged in the Revision

Petition supra, this Court reconsidered the materials on

record. On such reconsideration, this Court does not find

any compelling reasons so as to interfere with the finding

recorded by the Trial Magistrate or confirmed by the first

Appellate Court. Accordingly, point No.1 is answered in the

negative.

14. Insofar as sentence is concerned, the Trial

Magistrate has awarded double the cheque amount.

However, in the impugned judgment there is no proper

reasons assigned for imposing double the cheque amount.

Therefore, there is no justification in the case on hand, to

impose double the cheque amount.

15. Accordingly, this Court is of the considered

opinion that in the Revisional jurisdiction, this Court is

required to interfere with the order passed when the

double the cheque amount is ordered as the fine amount.

Hence, this Court is of the considered opinion that having

regard to the attendant circumstances if the accused is

directed to pay compensation of Rs.3,00,000/- instead of

Rs.4,00,000/- as ordered by the Trial Magistrate and

confirmed by the first Appellate Court, ends of justice

would be met. Accordingly, point No.2 is answered partly

in the affirmative and pass the following:

ORDER

1. Criminal Revision Petition is allowed-in-part.

2. While maintaining the conviction of the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, the accused is directed to pay compensation in a sum of Rs.3,00,000/- to the complainant as against Rs.4,00,000/. If the amount as aforesaid is paid, the imprisonment ordered by the Trial Magistrate stands set aside.

3. Time is granted for the accused to pay the balance compensation till 15.01.2022.

In the event of accused failed to pay the

compensation as aforesaid, the order of the Trial

Magistrate stands automatically restored.

The amount in deposit is ordered to be withdrawn by

the complainant under due identification.

Sd/-

JUDGE

KA*