Brij Mohan Vasishta vs Murali Melwani By His Lrs
2021 Latest Caselaw 6922 Kant

                           1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 21ST DAY OF DECEMBER, 2021

                     BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.351/2018


BETWEEN

BRIJ MOHAN VASISHTA
S/O DEVAKI NANDAN VASHSHTA
AGED ABOUT 72 YEARS,
R/AT NO.506,
SILICON TOWERS,
209/1, 4TH CROSS,
BYRASANDRA
C.V.RAMAN NAGAR POST
BENGALURU-560093
                                    ...PETITIONER
(BY SRI PRASANNA D P, ADVOCATE)

AND

   MURALI MELWANI BY HIS LRS

1 . DEEPAK MELWANI
    S/O MURALI MELWANI
    AGED ABOUT 56 YEARS,

2 . SAPNA N DARYANANI
    W/O NIRESH DARYANANI
    AGED ABOUT 50 YEARS
                                  2


     BOTH ARE R/AT NO.R-46
     GOLDEN ENCLAVE
     AIRPORT ROAD
     BENGALURU-560017
                                               ...RESPONDENTS

(BY SRI S.R.RAVI PRAKASH, ADVOCATE FOR R1 & R2)


      THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE PASSED BY THE 23RD A.C.M.M.,
BANGALORE IN C.C.NO.19516/2013, DATED 25.10.2016
AND IN CRIMINAL APPEAL NO.1362/2016, DATED
28.12.2017 ON THE FILE OF THE LXVI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE CITY, (CCH-67)
AT BANGALORE.

     THIS CRIMINAL REVISION PETITION COMING ON
FOR FURTHER HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                              ORDER

Heard Sri Prasanna D.P. learned counsel for the

Revision Petitioner and Sri S.R. Ravi Prakash, learned

counsel for the complainants and perused the records.

2. The accused, who suffered an order of

conviction dated 25.10.2016 passed in C.C.No.19516/2013

by the XXIII Addl. Chief Metropolitan Magistrate,

Bengaluru City, which was confirmed by judgment dated

28.12.2017 passed in Criminal Appeal No.1362/2016 by

the LXVI Addl. City Civil & Sessions Judge, Bengaluru City,

has preferred this Revision Petition.

3. Brief facts of the case are as under:

There was a business transaction between the

accused and the complainants, and they got acquainted in

Puttaparty at Bhagwan Shri Satya Sai Baba Ashram and

used to meet each others frequently and thereafter, the

business transaction was carried out and in respect of the

outstanding amount, the accused passed on a cheque

bearing No.69490 dated 30.4.2013 for a sum of

Rs.13,75,000/-. The said cheque on presentation came to

be dishonoured with an endorsement "insufficient funds".

There was a Memorandum of Understanding executed

between the parties which was marked at Ex.P-2 before

the Trial Magistrate. The cheque was purportedly issued in

pursuance of the Memorandum of Understanding. It is

also found from the records and the evidence of PW-1 and

by way of submission on behalf of the parties at the Bar,

that parallel civil proceedings are also initiated by the

complainants against the accused. Since the cheque on

presentation came to be dishonoured, statutory notice was

issued by the complainant to the accused. Records reveal

that there is no compliance to the callings of the statutory

notice nor the same was not properly replied. As such, the

complainant was constrained to approach the jurisdictional

Magistrate by filing a private complaint under Section 200

Cr.PC., seeking action against the accused for the offence

punishable under Section 138 of the Negotiable

Instruments Act.

4. Subsequent thereto, the learned Trial Magistrate

secured the presence of the accused and plea was

recorded. Since accused pleaded not guilty, trial was held.

In order to prove the case of the complainants, the

complainant got examined himself as PW-1 and relied on

documentary evidence which were exhibited and marked

as Exs.P-1 to P-14, thereby the complainant discharged his

initial burden in establishing the case of the complainant,

whereby there was a presumption available to the

complainant under Section 118 and 139 of the Negotiable

Instruments Act. In order to rebut the said presumption,

for the reasons best known to the accused, he did not step

into the witness box. Learned Trial Magistrate on

conclusion of the evidence of the complainant recorded the

accused statement as contemplated under Section 313 of

Cr.PC., wherein the accused denied all the incriminatory

circumstances found against him. However, he did not

examine himself or place his version in writing as

contemplated under Section 313(5) Cr.PC., Thereafter,

the learned Trial Magistrate heard the parties in detail and

after appreciating the material evidence on record came to

the conclusion that the complainant is successful in

establishing all ingredients to attract offence punishable

under Section 138 of the Negotiable Instruments Act and

passed an order of conviction sentencing the accused to

pay a sum of Rs.14,50,000/- in respect of the dishonoured

cheque.

5. Being aggrieved by the order of conviction,

accused preferred Criminal Appeal No.1362/2016.

6. The learned Judge in the first Appellate Court,

after securing the records and hearing the parties in detail,

and in the light of the grounds urged in the Memorandum

of appeal and after re-appreciating the material evidence

on record, dismissed the appeal by confirming the order of

conviction and sentence passed by the learned Magistrate.

Thereafter, the accused being aggrieved by the same, is in

Revision Petition with the following grounds:

The Judgment passed by the court below is erroneous against the law, facts, and circumstances of the case, hence same is liable to be set aside.

It is submitted that the court below has gravely erred in upholding the Judgment of conviction and sentence passed by the trial court against the accused petitioner for an offence under section 138 of the N.I. Act and sentencing the petitioner to undergo Simple imprisonment for a period of one year and to pay fine of Rs.5,000/- and awarded the compensation of Rs.14,45,000/- to the Complainant.

It is further submitted that the court below has utterly failed in appreciation of evidence and materials placed

before him also failed in appreciate the defense evidence and the specific contention of the petitioner/accused he has paid the entire amount to the respondent/complainant, but Hon'ble Appellate court has not taken into consideration and erroneously dismissed the appeal, hence the same is warrants the interference of this Hon'ble court.

It is further submitted that, admittedly the respondent has initiated the civil proceedings and also accepted the payments during the course of the proceedings, but Hon'ble appellate court has failed to consider the same contemplated under section 357(5) of the Cr. P.C., hence the findings of the appellate court is erroneous one and liable to be set aside.

It is further submitted that, as per the respondent/ petitioner has to pay a sum of Rs.25,00,000/- and issued a cheques for Rs.25,90,000/- and Hon'ble trial court is pleased to convict the accused for a total amount of Rs.30,50,000/ and the petitioner/accused has paid the amount to the respondent complainant as follows:

1     10,00,000           29.04.2014   OS.5854/2013
2     8,75,000            02.07.2014   OS.5854/2013
3     43,299              30.03.2015   OS.5854/2013
4     1,50,000            30.11.2016   OS.5854/2013
5     1,50,000            30.11.2016   OS.5854/2013
6     1,50,000            30.11.2016   OS.5854/2013
7     40,000              27.06.2017   Ex.572/2017


     8      60,000                19.06.2017     Ex.572/2017
     9      1,00,000              05.07.2017     Ex.572/2017
     10     2,11,480              16.10.2017     Ex.572/2017
     11     1,50,000              16.10.2017     Ex.572/2017
     12     1,56,000              19.01.2018     CC 14529/13
     13     1,40,000              19.01.2018     CC 19516/13
     14     Total      amount     Rs.32,25,779/- against to the

received by the conviction for Rs.30,50,000/-. respondent

It is further submitted that, even after receiving the excessive payment from the accused/petitioner, the respondent has suppressed the material facts and harassing the accused for his illegal enrichment which is permissible under law.

It is further submitted that the Hon'ble trial court has failed to apply its mind and without to the notice of the petitioner accused has permitted the legal heirs of the respondent to withdraw the deposited amount, hence the same is warrants the interference of this Hon'ble court."

Reiterating the above grounds, learned counsel for the

Revision Petitioner has vehemently contended that both

the Courts have not properly appreciated the materials on

record and both the courts have not taken into account

especially the civil proceedings as there is a parallel

proceedings pending in respect of the very same cause of

action and therefore, the learned Trial Magistrate and first

Appellate Court were erred in law in convicting the accused

under Section 138 of the Negotiable Instruments Act and

sought for allowing the Revision Petition.

7. He further contended that already some amount

has been paid by the Revision Petitioner to the

complainant and the same is not properly accounted and

therefore, sought for allowing the revision petition.

8. Per contra, Sri S.R. Ravi Prakash, learned

counsel representing the complainant supported the

impugned judgment. He fairly admits that there are civil

proceedings pending before the executing Court. He has

also stated that if any amount is paid by the accused, in

pursuance of these criminal proceedings, the same would

be given due deduction in the pending civil cases

accordingly.

9. 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 offences punishable under Section 138 of the Negotiable Instruments Act, which was confirmed by the First Appellate Court is suffering from legal infirmity, error of jurisdiction, patent factual defect or perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

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

signature found on the cheque is not in dispute. Even

according to the accused, in respect of the business

transaction and as per the Memorandum of Understanding

marked at Ex.P2, the entire amount has been paid by the

accused to the complainant which has not been properly

accounted by the complainant. To substantiate the said

contention, there is no evidence placed by the accused

which would act as a rebuttal evidence to annul the

presumption available to the complainant under Section

139 of Negotiable Instruments Act.

11. Applying the legal principles enunciated in the

case of Hon'ble Supreme Court in the case of Indian

Banks Association and others Vs. Union of India and

Others reported in (2014) 5 SCC 590, accused was

bound to step into the witness box and explain and prove

for discharge. Having not stepped into the witness box

and placing any material evidence, he cannot be

discharged. The learned Trial Magistrate was justified in

recording an order of conviction under Section 138 of the

Negotiable Instruments Act and directing the accused to

pay fine amount as referred to supra.

12. Learned Judge in the first Appellate Court has

also re-appreciated the material evidence on record and

took into consideration all the grounds urged on behalf of

the accused, and confirmed the order passed by the

learned Trial Magistrate. Having regard to the limited

scope of the revisional jurisdiction, re-assessed the

material evidence on record. Even according to the

accused, the defence is one of discharge. If entire amount

is paid by the accused as per the Memorandum of

Understanding, there was no necessity for the Revision

Petitioner to file a civil suit as well as to launch criminal

case in respect of dishonour of cheque, when it is settled

principles of law. Whenever a plea for discharge is taken

after the conviction, it is for that person to establish plea

of discharge by placing cogent and convincing evidence on

record.

13. In the case on hand, the accused failed to step

into the witness box nor adduced any evidence, whereby

the plea of discharge cannot be accepted by any court of

law. Accordingly, this court is of the considered opinion

that there is no error of jurisdiction or patent factual defect

or perversity in recording a finding by both the courts that

accused is guilty of the offence under Section 138 of the

Negotiable Instruments Act. Having regard to the nature

of transaction, the fine amount imposed by the Trial Court

is also just and proper and does not call for interference by

this court at this juncture in this Revision Petition.

Accordingly, Point Nos.1 and 2 are answered in the

Negative.

14. However, since parallel proceedings are also

initiated by the complainant against the accused, if any

amount is recovered in pursuance of the Revision Petition,

complainant is bound to account for the same in the

pending civil proceedings which is now pending before the

Executing Court.

15. With the above observations, pass the

following:

ORDER

Criminal Revision Petition is dismissed.

Sd/-

JUDGE

PL*