Karnataka High Court
Smt Sarika Bhandari vs M/S Vivek Industries on 15 January, 2021
Author: Dr.H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JANUARY 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.850 OF 2011
BETWEEN:
Smt. Sarika Bhandari,
Proprietrix
M/s. Yash Furniture
No.18, Andrcc Road,
Shanthinagar,
Bangalore - 560 027.
.. Petitioner
(By Sri. Paras Jain, Advocate)
AND:
M/s. Vivek Industries,
18/11, Aswathkatte Main Road,
Kasturiba Nagar,
Mysore Road, Bangalore - 560 026.
Rep.by its prop.
Sri. Lakshmi Shantha.
.. Respondent
(By Sri. S. Javeed, Amicus Curiae)
****
This Criminal Revision Petition is filed under Section 397 read
with Section 401 of Cr.P.C. 1973, praying to call for the records and
set aside the judgment dated 01-07-2011 in Criminal Appeal
No.60/2011 passed by the Presiding Officer, Fast Track Court
Crl.R.P.No.850/2011
2
(Sessions)-XI, Bangalore and also the judgment dated
03-01-2011 passed by the XIII Additional Chief Metropolitan
Magistrate, Bangalore in C.C.No.11768/2009, etc.
This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this
day, the Court made the following:
ORDER
The present petitioner as the accused was tried by the Court
of the learned XIII Additional Chief Metropolitan Magistrate,
Bangalore (hereinafter for brevity referred to as the "Trial Court") in
C.C.No.11768/2009 for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 (hereinafter for brevity
referred to as the "N.I. Act") and was convicted for the said offence
by its judgment of conviction and order on sentence dated
03-01-2011.
Aggrieved by the same, the accused preferred a Criminal
Appeal in the Court of the Presiding Officer, Fast Track Court
(Sessions)-XI, Bangalore (hereinafter for brevity referred to as the
"Sessions Judge's Court") in Criminal Appeal No.60/2011.
The appeal was contested by the respondent who was the
complainant in the Trial Court. The Sessions Judge's Court in its
Crl.R.P.No.850/2011
order dated 01-07-2011 (but shown as 30-06-2011 in the title
sheet of the judgment) dismissed the appeal, confirming the
judgment of conviction and order on sentence passed by the Trial
Court in C.C.No.11768/2009.
Aggrieved by the said order, the accused has preferred this
revision petition.
2. The summary of the case of the complainant in the Trial
Court was that he is a dealer in furniture. The accused being his
customer had placed oral orders for the purchase of chairs on credit
basis. Accordingly, he sold and supplied chairs under invoice No.32
dated 19-12-2008 which was for a total sum of `56,350/-. Towards
the said invoice value, the accused had issued two cheques, one for
`25,000/- bearing No.761194 and the second cheque was bearing
No.76195 and for balance amount of `31,350/-, both drawn on
Syndicate Bank, Shanthinagar, Bangalore-27. The first cheque was
encashed by the complainant. However, when he presented the
second cheque which was dated 01-01-2009 for its realisation, the
same came to be returned with a banker's endorsement that the
payment was stopped by the drawer. A legal notice demanding the
Crl.R.P.No.850/2011
cheque amount was sent to the accused only to receive an
untenable reply, which constrained the complainant to institute a
criminal case against her for the offence punishable under Section
138 of the N.I. Act.
3. After trial, the Trial Court convicted the accused for the
alleged offence which was further confirmed by the Sessions
Judge's Court in the appeal preferred by the accused. Aggrieved by
the same, the accused is before this Court through this revision
petition.
4. The accused contested the matter appearing through her
counsel.
5. To prove its case, the complainant got examined its
Proprietor - Sri. Lakshmi shantha as PW-1 and got marked the
documents from Exs.P-1 to P-10. From the accused's side, no
witness was examined but a copy of delivery note was marked at
Ex.D-1.
Crl.R.P.No.850/2011
6. The Trial Court after recording the evidence led before it,
by its impugned judgment of conviction dated 03-01-2011
convicted the accused for the offence punishable under Section 138
of the N.I. Act and sentenced her to pay a fine of `35,000/-, in
default, to undergo simple imprisonment for six months.
Challenging the same, the accused preferred an appeal in
Criminal Appeal No.60/2011 before the learned Session's Judge's
Court, which after hearing both side, by its judgment dated
01-07-2011, dismissed the appeal while confirming the judgment of
conviction passed by the Trial Court. Being aggrieved by the same,
the accused has preferred this revision petition.
7. In view of the fact that the learned counsel for the
respondent failed to appear before this Court on several dates of
hearing and also considering the fact that this revision petition is
nearly ten years' old, this Court by its order dated 07-01-2021,
appointed learned counsel Sri. S. Javeed, as Amicus Curiae for the
respondent to defend his case.
Crl.R.P.No.850/2011
8. Learned counsel for the revision petitioner is appearing
through video conference and learned Amicus Curiae for the
respondent is appearing physically before the Court.
9. The Trial Court and Sessions Judge's Court's records were
called for and the same are placed before this Court.
10. Heard the arguments from both side. Perused the
materials placed before this Court including the Trial Court and
Sessions Judge's Court's records.
11. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the Trial Court.
12. After hearing the learned counsels for the parties, the
only point that arise for my consideration in this revision petition is:
Whether the judgments under revision are
perverse, illegal and erroneous warranting interference
at the hands of this Court?
13. Learned counsel for the petitioner in his brief arguments
submitted that the placing of the order for purchase of chairs is not
in dispute. However, the goods supplied to the accused under
Crl.R.P.No.850/2011
invoice No.32 since were damaged and broken, the goods were not
accepted and returned to the supplier, i.e. the complainant with an
endorsement on the delivery note which is at Ex.D-1, as such, in
the simultaneous performance of the contract, unless the goods in
good condition are delivered to the accused, he was not under an
obligation to honour the cheque. Therefore, there exists no legally
enforceable debt, attracting Section 138 of the N.I. Act.
14. Learned Amicus Curiae for the respondent in his
argument submitted that, Ex.D-1 is with respect to invoice No.31,
but not with respect to the present invoice and there are no
material to show that the accused has returned the goods.
Therefore, the complainant was entitled for the amount shown in
the cheque which was legally enforceable debt in his favour. As
such, both the Trial Court as well as the learned Sessions Judge's
Court have rightly held the accused guilty of the alleged offence
punishable under Section 138 of the N.I. Act.
15. It is not in dispute that the complainant is a dealer in
wooden furniture and the accused was a retailer in the same
Crl.R.P.No.850/2011
business, who had placed orders with the complainant for supply of
some tables and chairs from the complainant to the accused. The
said aspect is clear in the legal notice sent by the complainant to
the accused at Ex.P-3 as well in his complaint filed under Section
200 of the Code of Criminal Procedure, 1973 (hereinafter for brevity
referred to as the "Cr.P.C."). The evidence of the complainant as
PW-1 is also to the effect that it was towards invoice No.32 dated
19-12-2008, the accused had undertaken to make payment
towards the supply of goods to her. Therefore, even according to
the complainant, the liability of the accused would arise, provided
the complainant proves that there was supply of goods as
consideration towards the cheque amount which cheque is at
Ex.P-1. Thus, it is a contract wherein the performance of reciprocal
promises were simultaneous.
16. According to the complainant who was examined as
PW-1, he had supplied the goods under invoice No.32 to the
accused which statement of PW-1 has been seriously disputed by
the accused in the cross-examination of PW-1. In fact, the accused
has taken such a stand of non-delivery of the alleged goods to her,
Crl.R.P.No.850/2011
at the earliest point of time by sending a reply to the legal notice
sent by the complainant as per Ex.P-6. In the very reply, the
accused has specifically stated that even the goods that were sent
to her for the order under invoice No.31 which were the big and the
small wooden tables were also found broken and to compensate the
same, the complainant had sent the tables also along with chairs
while attempting to deliver the goods under invoice No.32 on
19-12-2008. In the said reply notice, the accused has also stated
that since the goods attempted to be delivered to her were found
damaged, she did not accept the goods, rather she returned those
goods by making an endorsement in the delivery note that "Material
rejected and send back to supplier". A copy of the delivery note
was confronted to PW-1 in his cross-examination and the witness
has admitted that the said document pertains to him and that he
had issued the said document as a delivery note. Thus, the
undisputed document which is at Ex.D-1 clearly goes to show that
the accused has not accepted the goods but returned the same to
the supplier. Admittedly, the cheque in question was issued by the
Crl.R.P.No.850/2011
accused to the complainant towards the goods under invoice No.32
which goods also includes the one in Ex.D-1.
17. The document at Ex.D-1 further goes to show that, for
delivery of the goods, the complainant is in the habit of delivering
the goods along with a delivery note and obtaining the signature of
the recipient of the goods for having taken delivery of the goods.
The said delivery note is in the format of 'Form VAT 505. PW-1 in
his cross-examination has admitted that he has filed the said
document before the competent authority. Therefore, he has once
again authenticated that Ex.D-1 is a document that originated from
his end, as a proof of delivery of goods. That being the case, when
admittedly, the complainant is in the habit of collecting the
document to prove the delivery of goods to the purchaser and
except Ex.D-1, since the complainant has not produced any other
document to show that he had supplied the goods under invoice
No.32 to the accused, the only inference that could be drawn is
that, it is Ex.D-1 which alone would show that the attempt to
deliver the goods to accused was made by the complainant.
However, as already noted above, when the accused has made an
Crl.R.P.No.850/2011
endorsement in the very same document, mentioning that,
'material rejected and send back to supplier' and also has shown
that 41 chairs supplied to her were broken and that since the said
delivery note since has come out from the possession of the
complainant in a competent Civil Court, in a civil litigation between
the same parties and also since the said document has been
admitted by complainant in the instant case as the one produced by
him in the Civil Court, the contents of the said document cannot be
suspected. Therefore, in the very same document, through which
the complainant intended to show the supply of goods to the
accused, which is now clearly showing that the accused has not
accepted the goods, rather has returned the said goods with the
endorsement that as the goods were broken, as such, the same
were sent back, it is clear that in return of the amount shown in the
cheque at Ex.P-1, there is no consideration passed from the
complainant's side to the accused, either past, present or future.
When the accused could able to establish that there was no
consideration for the cheque at Ex.P-1, the presumption which has
formed in favour of the complainant immediately after issuance of
Crl.R.P.No.850/2011
legal notice upon the accused stands rebutted. Once the
presumption which was formed in favour of the complainant is
shown to be rebutted, the burden of proving the existence of a
legally enforceable debt was upon the complainant which he has
failed to discharge in the instance case.
However, both the Trial Court as well as the Sessions Judge's
Court, without appreciating the evidence and the material placed by
the parties before them, in their proper perspective, have
erroneously confined their concentration upon Ex.P-1 which is the
dis-honoured cheque and Ex.P-3 which is a legal notice rather than
considering the earliest defence taken up by the accused under
reply notice at Ex.P-6 and more particularly, Ex.D-1 and the
evidence of PW-1 in his cross-examination. The above analysis
since has now proved that Ex.D-1 covers the alleged supply of
goods towards invoice No.32 with respect to which the cheque in
question was issued by accused and since it has also been proved
that the goods has not been delivered or supplied to the accused in
return for the cheque amount, the existence of a legally enforceable
debt has to be held as not proved by the complainant.
Crl.R.P.No.850/2011
Consequently, the finding of both the Trial Court and the
learned Sessions Judges Court holding the accused guilty of the
alleged offence, deserves to be set aside and the accused deserves
to be acquitted of the alleged offence.
Accordingly, I proceed to pass the following:-
ORDER
[i] The Criminal Revision Petition is allowed;
[ii] The impugned judgment of conviction and order on
sentence dated 03-01-2011, passed by the learned XIII
Additional Chief Metropolitan Magistrate, Bangalore, in
C.C.No.11768/2009, holding the accused guilty of the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881 and sentencing her for the
alleged offence, is set aside;
Consequently, the judgment passed by the
Presiding Officer, Fast Track Court (Sessions)-XI,
Bangalore, dated 01-07-2011, in Criminal Appeal
No.60/2011 is also set aside.
Crl.R.P.No.850/2011
[iii] The accused - Smt. Sarika Bhandari,
Proprietrix, M/s. Yash Furniture, No.18, Andrcc Road,
Shanthinagar, Bangalore-560 027, is acquitted of the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881.
The Court while acknowledging the service rendered by the
learned Amicus Curiae for the respondent - Sri. Javeed S.,
recommends honorarium of a sum of not less than `3,000/- to him
payable by the Registry.
Registry to transmit a copy of this order to both the Trial
Court and also the Sessions Judge's Court along with their
respective records forthwith.
Sd/-
JUDGE
BMV*
