Karnataka High Court
Manjunath Sadanand Raikar vs M/S Bhagyodaya Builders Pvt Ltd., ... on 7 February, 2022
Bench: Mohammad Nawazpresided Bymnj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL REVISION PETITION No.2053/2013
BETWEEN:
MANJUNATH SADANAND RAIKAR,
AGE: 48 YEARS, OCC: BUSINESS,
R/O. H.NO. 1732/1,
BHADYODAYA BUNGLOWS,
BEHIND SUMAROMA APARTMENT,
SPOST: HUBWADA, KARWAR,
TQ:KARWAR, DIST: KARWAR. ...PETITIONER
(BY SHRI S.V.YAJI, ADVOCATE)
AND:
M/S BHAGYODAYA BUILDERS PVT LTD.,
KARWAR,
A COMPANY REGISTERED UNDER THE INDIAN
COMPANIES ACT HAVING ITS REGD. OFFICE
IN KARWAR,
REP. BY ITS PRINCIPAL OFFICER,
AUTHORISED REPRESENTATIVE AND
EXECUTIVE DIRCTOR,
KRISHNANDA RAMADAS KOLVEKAR,
AGE: 56 YEARS, OCC: BUSINESS,
R/O.H.NO. 637, SRI RENUKA, KENCHA ROAD,
KARWAR, TQ: AND DIST:KARWAR. ...RESPONDENT
(BY SHRI ASHOK ANGADI, FOR
SHRI GIRISH A.YADWAD, ADVOCATES)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397
AND 401 OF CR.P.C. SEEKING TO SETTING ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 19.01.2010 PASSED BY THE
2
JMFC-II, KARWAR IN C.C.NO.1007/2004 SENTENCING TO
UNDERGO S.I. FOR ONE MONTH AND SHALL PAY FINE OF
RS.2,500/- IN DEFAULT OF PAYING THE FINE AMOUNT SHALL
UNDERGO S.I. FOR ONE MONTH AND FURTHER DIRECTED TO PAY
COMPENSATION OF RS. 30,000/- AND CHEQUE AMOUNT OF
RS.75,000/- WHICH IS CONFIRMED BY THE JUDGMENT AND
ORDER DATED 29.09.2010 BY THE OCURT OF THE SESSIONS
JUDGE, FAST TRACK COURT-I UTTARA KANNADA, KARWAR IN
CRIMINAL APPEAL NO.22/2010 AND ACQUIT THE PETITIONER FOR
THE CHARGES U/SEC. 138 OF N.I.ACT.
THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The revision petitioner/accused is before this
Court questioning the concurrent findings recorded
by the Courts below, convicting and sentencing him
for an offence punishable under Section 138 of the
Negotiable Instruments Act.
2. Heard both side and perused the material
on record.
3. The specific case of the complainant is
that the accused for a valid consideration i.e., as a
part consideration and damages for late payment
towards construction of a house, issued a cheque
bearing No.599950 dated 28.12.2003 drawn on
Karwar Branch of Karnataka Bank Limited, for
Rs.75,000/- which when presented, came to be
dishonoured and inspite of issuance of legal notice,
he failed to reply to the said notice and also failed
to make the payment, as such, committed an offence
punishable under Section 138 of the NI Act.
4. PW-1 is the authorized representative and
Executive Director of the complainant/Company. In
support of complainant's case, Ex.P.1 to Ex.P.7 were
marked in evidence. The defence got marked Ex.D.1
to Ex.D.9. The accused has not replied to the legal
notice received by him, which is not disputed. From
the cross-examination of PW-1, it appears that
defence taken by the accused is that he has paid a
sum of Rs.10 lakhs as per Ex.D.2 to Ex.D.9 and from
1998 till 2002, there was no communication by the
complainant. The construction was put up as per
the agreement Ex.D.1 and only a sum of Rs.10 lakhs
was to be paid to the complainant and there is no
agreement to pay the damages. Further, the
accused denied that he was due a sum of
Rs.75,000/- and the cheque was issued towards part
consideration and damages for late payment. It is
contended by the learned counsel for petitioner that
the cheque issued towards security was misused by
the complainant and a false case was filed.
5. The trial Court has taken into
consideration the letter dated 28.08.2002 issued to
the complainant by the accused and his brother,
marked as Ex.P.7, wherein it is stated that due to
the difficulties, dues of Rs.76,000/- claimed in the
said letter has not been cleared and further
informed the complainant that the said dues will be
cleared by way of installments. The trial Court was
therefore of the view that accused knowing fully well
that he is due a sum of Rs.76,000/- to the
complainant, deliberately failed to pay the same
even after taking possession of the house.
6. It is relevant to see that the cheque in
question is issued for a sum of Rs.75,000/-. The
signature in the cheque has not been disputed.
Hence, a legal presumption arises in favour of the
complainant. Accused has failed to rebut the said
presumption. The appellate Court has also taken
into consideration that the cheque in question bears
signature of the accused and it is drawn on the bank
account maintained by him. The transaction is
between the Complainant/Company and the accused
with regard to construction of an apartment. Both
the parties have entered into an agreement and as
per the terms of agreement, accused and his brother
had to pay a sum of Rs.10 lakhs which was duly paid
as per Ex.D.2 to Ex.D.9 and one of the clause in the
agreement/Ex.D.1 was that if there is any variation
etc., the party has to pay extra amount as stated.
Further, as per Ex.P.7, accused and his brother had
agreed to pay the amount shown in the letter in
installments. Hence, the complainant has proved
that the cheque was issued by the accused towards
consideration amount, which was returned
dishonoured and the accused failed to make the
payment inspite of receipt of a legal notice. The
accused having failed to rebut the presumption, has
been convicted and sentenced by the trial Court
which is confirmed by the appellate Court. I see no
illegality in the findings recorded by both the Courts.
7. Accordingly, the revision petition is
dismissed.
8. Considering the facts and circumstances of
the case, it is ordered that the sentence imposed
against the accused to undergo S.I. for one month
shall take effect, only if the petitioner/accused fails
to pay the balance amount before the trial Court
within a period of 30 days from today.
9. Complainant is at liberty to withdraw the
amount and trial Court shall permit to do so, on
proper identification.
Sd/-
JUDGE
Jm/-
