M/S Royal Properties (India) vs Sri. B R Prathap
2021 Latest Caselaw 759 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 13TH DAY OF JANUARY 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

    CRIMINAL REVISION PETITION No.20/2015

BETWEEN :
M/s Royal Properties (India)
Represented by its Proprietor
Sri R Balaji
Aged about 54 years
No.22, Mission Road,
(P Kalinga Rao Road)
K.H. Shamarao Compound
Bangalore 560 027
                                           ...Petitioner

(By Sri. Mohan S., Advocate)

AND :
Sri B.R. Prathap
Aged about 44 years
S/o Sri B.P.Ramaiah
Residing at Old No.75,
'A' Main, IV Block
Rajajinagara
Bangalore 560 010
                                           ...Respondent

(By Sri. K Narayan, Advocate(Absent))

     This Criminal Revision Petition is filed under Section
397 of Cr.P.C. praying to set aside the judgment and order
passed in C.C.No.23509/2011 dated 18.06.2014 on the file
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of the XIII-ACMM, Bangalore and the judgment and order
dated 01.12.2014 passed in Crl.A.No.815/2014 on the file
of the Presiding Officer, Fast Track Court-II Bangalore and
direct the petitioner be acquitted of the offence alleged and
charges against him.

      This Criminal Revision Petition coming            on     for
Hearing, this day, the Court made the following:

                           ORDER

Heard Shri. Mohan S, learned counsel for revision

petitioner. There is no representation on behalf of

respondent.

2. This revision petition is filed by the accused

challenging the judgment and order dated 18.06.2014

passed in C.C.No.23509/2011 on the file of XIII Additional

Chief Metropolitan Magistrate, Bengaluru, wherein the

learned Magistrate convicted the accused for the offence

punishable under Section 138 of Negotiable Instrument Act

(Hereinafter referred to as 'Act' for short). By said

judgment, accused was convicted and sentenced to pay a

fine of Rs.6,50,000/- and out of the said sum Rs.5,000/-

was ordered to be paid towards fine to the State and

balance of Rs.6,45,000/- was ordered to be paid as

compensation to complainant under Section 357 of Cr.P.C.

Said order came to be confirmed in judgment dated

01.12.2014 in Crl.A.No.815/2014, passed by the Fast Rack

Court-II, Bengaluru.

3. The brief facts which are necessary for disposal

of this revision petition are as under:

A private complaint came to be filed under Section

200 Cr.P.C. r/w Section 138 of the Act, contending that

accused by name M/s Royal Properties (India) represented

by Shri. R Balaji, who was doing real estate business,

entered into a joint development agreement with the

complainant in respect of an immovable residential

property, situated in Abbigere village known as 'Nisarga

Layout', Phase-II, Yeshwanthpur Hobli, Bengaluru North

Taluk. Complainant and his friend V.K.Ramesh had agreed

to purchase sites in the said layout and entered into an

agreement of sale and has paid advance amount towards

purchase of the sites. It is further contended that after

some time complainant came to know about the

misrepresentation made by the accused, he demanded the

accused to repay the advance amount and accused issued

a cheque bearing No.000300, dated 22.04.2011, in a sum

of Rs.6,45,000/- drawn on Kotak Mahindara Bank, Lavelle

Road, Bangalore, which on presentation came to be

dishonoured with an endorsement that "Debit

disallowed". Immediately complainant got issued a

statutory notice to accused on 24.02.2011. The accused

even on receipt of the notice, did not make payment and

agreed to settle the matter on 04.05.2011 and

05.05.2011. It is further contended that the promises

made by the accused were not fulfilled, which necessitated

the complainant to file a criminal complaint against the

accused for the offence under Section 138 of the Act.

4. Learned Magistrate took cognizance of the offence

and secured presence of the accused and recorded the

plea. Accused pleaded not guilty.

5. In order to prove the case, complainant got

examined himself as P.W.1 and relied on 31 documents

which were exhibited and marked as Exs.P.1 to P.31.

Another witness on his behalf is examined as P.W.2.

6. On behalf of the defence, accused got examined

himself as D.W.1 and no documents were marked.

7. Thereafter, the learned Magistrate recorded

statement of the accused as contemplated under Section

313 Cr.P.C. The accused denied all the incriminating

circumstances that were put to him and thereafter learned

magistrate heard the parties and passed an order of

conviction sentencing him to pay a sum of Rs.6,50,000/-

as fine amount and out of which Rs.6,45,000/- shall be

paid as compensation to the complainant. Being aggrieved

by the said judgment of conviction, accused preferred an

appeal in Crl.A.No.815/2014 before the Fast Track Court-

II, Bengaluru City. The learned Judge in the First

Appellate Court after securing the records and hearing the

parties, confirmed the judgment of the learned Magistrate

by dismissing the appeal. It is those judgments, which are

the subject matter of this revision petition.

8. Shri. S. Mohan, learned counsel for the revision

petitioner vehemently contended that both the Courts have

not considered the case of the parties in its right

perspective and evidence of the parities were misread by

the Courts and wrongly convicted the accused. He also

contended that the learned Magistrate did not properly

appreciate the case of the parties, especially, when there

was heavy burden on the complainant to prove his case

beyond reasonable doubt and thus wrongly placed reliance

on Ex.P.8, which was no way concerned to the case of the

parties.

He further contended that the complainant failed to

establish amount covered under Ex.P.1- cheque was a

legally recoverable debt. Therefore, the judgment passed

by the learned Magistrate suffers from legal infirmity, as

the required ingredients to establish the offence prescribed

under Section 138 of the Act is not properly proved by the

complainant and thus sought for allowing revision petition.

Further Sri Mohan S, learned counsel for the revision

petitioner submits that without prejudice to the grounds

urged in the petition, accused has made some deposits

before the First Appellate Court as well as this Court,

which shall be taken into consideration by this Court.

9. In this revision petition the complainant is

represented by learned counsel Sri. K. Narayan. Today

Sri. K. Narayan is not present. Hence, this Court in the

light of the arguments advanced by the learned counsel for

the revision petitioner and after perusal of records has

proceed to dispose of the matter.

10. In view of the arguments advanced by the

learned counsel for the revision petitioner, following points

would arise for consideration:

i) Whether the finding recorded by the learned Magistrate that the accused has committed the offence under Section 138 of the N.I. Act, affirmed by the learned Fast Tract Court-II, Bengaluru, in

Crl.A.No.815/2014 is suffering from any legal infirmity or capricious?

ii) Whether the sentence passed by the learned Magistrate confirmed by the First Appellate Court is excessive?

10. The said points are answered in negative for

the following reasons:-

Reg. Point No.1:

In the case on hand, acquaintance of the

complainant and accused is not in dispute. Having regard

to the say in the cross-examination, issuance of cheque

and signature found therein and cheque being dishonoured

with an endorsement 'debit disallowed' is not in dispute.

The initial burden cast on the complainant is discharged by

the complainant through oral testimony of P.W. 1 and

P.W.2 coupled with the documents that were relied upon

by the complainant.

DW.1 in his evidence stated that talks of purchase of

sites was between the complainant and one Abdul Majid.

It is also his case that the said transaction failed and he

had mediated between the complainant and Abdul Majid

for payment of advance amount for purchase of sites. In

otherwords, accused tried to establish that there was no

previty of contract between him and the complainant and

therefore, there was no legally recoverable debt in the

case, which has been ignored by the trial Court. If at all,

there was no previty of contract between the accused and

complainant, as is established by PW1, what prompted the

accused to part with the cheque - Ex.P.1, is not explained

by the accused. It is also pertinent to note that no positive

steps are taken by the accused to seek for return of the

cheque even after he appeared before the learned

Magistrate. This aspect of the matter is not explained by

the accused while placing rebuttal evidence.

It is an admitted fact that the cheque on

presentation came to be dishonoured with an endorsement

'debit disallowed' and statutory notice being served on the

accused. There is no reply by accused. No prudent man

would keep quiet without replying when legal notice is

issued in respect of dishonoured cheque, especially when

there is plea that cheque has been misused.

Per contra, complainant has stated that after

receipt of the legal notice, accused contacted him on two

dates 04.05 2011 and 05.05.2011 and promised to pay the

amount covered under Ex.P.1. All these factors have been

properly appreciated by the learned Magistrate while

holding that the accused has committed an offence under

Section 138 of the Act. Learned Judge in the First

Appellate Court supplemented few more reasons to the

reasons assigned by the learned Magistrate while

upholding the order of conviction.

Thus even after re-appreciation, this Court is of the

considered opinion that there is no legal infirmity or

capriciousness in the finding recorded by the learned

Magistrate, which has been uphold by the First Appellate

Court. Accordingly, point no.1 is answered in the negative.

12. Reg. Point No.2:

Learned Magistrate has imposed a fine of

Rs.6,50,000/- and out of which, ordered to pay a sum of

Rs.6,45,000/- as compensation to the complainant, which

is the cheque amount. In the absence of any revision

petition filed by the complainant seeking enhancement of

the sentence, this Court is only required to find out

whether the sentence as ordered by the learned Magistrate

is excessive, since the cheque amount is for Rs.6,45,000/-

and same has been ordered by the learned Magistrate as

compensation payable by the accused to the complainant

out of the fine amount. This Court does not find any error

whatsoever in passing such a sentence. Accordingly, point

No.2 is answered.

13. However, Shri. Mohan S, learned counsel for the

revision petitioner submitted that some amount is in

deposit before the First Appellate Court when the matter

was pending before it and few payments have been made

before this Court to the complainant.

14. The revision petitioner is at liberty to account

for the same before the learned Magistrate, if fine/levy

warrant is ordered against the accused.

15. With this observation, following order is made:

ORDER

Revision petition sans merit and hereby dismissed.

Registry is directed to transmit the Trial Court

records forthwith.

Sd/-

JUDGE

Psg*