Mandya Pipe Centre vs Sri. Shyam C Menda
2022 Latest Caselaw 2235 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 11 T H DAY OF FEBRUARY, 2022

                          BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

CRIMINAL REVISION PETITION NO.1403 OF 2015

BETWEEN:

1.    Mandya Pip e Centre
      No.14, 1 s t Floor, 4 t h Cross,
      Lalbhag h Road,
      Beng aluru-560025
      Represented by its Prop rietor
      Sri Virend ra N Dhoshi

2.    Mr. Virend ra N Doshi,
      S/o Nand lal Doshi,
      Aged 60 years,
      No.238, Shiyana,
      13 t h Cross, Vakil Gard en City,
      Thalaghatp ura, Kanakpura Main Road ,
      Beng aluru-560069.

3.    Mr. Hemanshu D Sanghvi,
      S/o Dhirajlal Sanghvi,
      Aged 55 years,
      No.1401, 14 t h Floor,
      Manthri Tranq uil Ap artments,
      Kanakpura Road, Gubala,
      Beng aluru-560062.
                                          ...Petitioners
(By Sri K.S.Abhijith, Amicus Curiae)

AND:

Sri Shyam C Menda,
S/o C.Mend a,
Aged about 41 years,
                               :: 2 ::


No.34/1, Nanjap pa Road ,
Shanthi Nag ar,
Beng aluru-560027.
                                                         ...Respondent
(By Sri P.Thejesh, Advocate for
    Sri Rohith Gowda, Advocate)

        This   Criminal   Revision      Petition    is    filed    under
Section 397 read with 401 of Cr.P.C. p raying to set
aside      the    jud gment/ord er       of      conviction        dated
07.11.2014 p assed in C.C.No.37124/2011 by the XIII
ACMM, Bengaluru and the Judgment d ated 21.11.2015
passed by the LXVIII Additional City Civil and Sessions
Judge, Beng aluru in Crl.A.No.1329/2014 and acquit
the     petitioners   from   the   offence       punishab le       under
Section 138 of N.I.Act.


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

                             ORDER

The petitioners have assailed the judgment

dated 21.11.2015 passed in Criminal Appeal

1329/2014 on the file of the LXVIII Additional City

Civil and Sessions Judge, Bengaluru (CCH-69).

The appellate confirmed the judgment of

conviction and sentence passed by the Magistrate :: 3 ::

against the petitioners for the offence under

section 138 of the Negotiable Instruments Act.

2. The facts are as follows : -

The petitioners approached the respondent for

financial assistance of Rs.10,00,000/- at the time

when they wanted to purchase a steel factory in

Gujarat. Considering his request, the respondent

paid a sum of Rs.10,00,000/- to the petitioners by

way of cheque drawn on Canara bank, Town Hall

Branch, Bengaluru and that the petitioners

executed two on-demand promissory notes, one

for Rs.5,00,000/- and another for Rs.10,00,000/-

in favour of the respondent agreeing to repay the

sum borrowed by him with interest at the rate of

12% p.a. After some days when the respondent

demanded repayment, petitioners repaid

Rs.4,50,000/- on two different dates and there

remained balance of Rs.10,50,000/-. Then the

petitioners are said to have issued 13 cheques for :: 4 ::

repayment of Rs.9,50,000/-. Out of 13 cheques, 6

cheques were issued for Rs.1,00,000/- each and 7

cheques for Rs.50,000/- each. When these

cheques were presented for encashment, they

were not honoured and returned with an

endorsement 'funds insufficient'. The respondent

issued demand notice to the petitioners. Notice

sent to petitioners 1 and 2 were duly served on

them, but notice sent to petitioner No.3 was not

served and it was returned with an endorsement

'insufficient address'. However, notice to

petitioner No.3 under certificate of posting was

duly served. Since the demand was not complied,

the respondent initiated action against the

petitioners under section 200 Cr.P.C for the

offence under section 138 of the Negotiable

Instruments Act.

3. The respondent being the complainant

himself adduced evidence as PW1 and produced 41 :: 5 ::

documents as per Exs.P1 to PW41. There was no

defence evidence. On assessing the evidence, the

Magistrate arrived at a conclusion that the

petitioners had committed offence punishable

under section 138 of the Negotiable Instruments

Act and therefore sentenced petitioners 2 and 3

who are the Managing Director and Director of the

first petitioner company respectively, to fine of

Rs.9,55,000/- with default sentence of simple

imprisonment for six months. It was further held

that out of the fine amount, Rs.9,50,000/- should

be paid to the respondent as compensation and

Rs.5,000/- should be defrayed to the State.

4. Aggrieved by the judgment of conviction

passed by the Magistrate, the petitioners preferred

an appeal to the Sessions Court which by the

impugned judgment dismissed the appeal and

hence this revision petition.

:: 6 ::

5. Since the counsel for the petitioners did

not appear before this court, Sri K.S.Abhijith,

advocate, was appointed as amicus curiae. Today I

have heard Sri K.S.Abhijith for the petitioners as

amicus curiae and Sri P.Thejesh, learned counsel

for the respondent.

6. Sri K.S.Abhijith submits that PW1 has

admitted in the cross-examination that he does

not possess money lending licence and in this view

the transaction between the respondent and the

petitioners was illegal and therefore the

petitioners could not have been convicted. He also

submits that variations in the hand writing found

in the cheques may be noticed. There was no

service of notice on petitioner No.3. The trial

court has not addressed these issues at all.

Therefore, it is his submission that both the courts

have erred in convicting the petitioners. The

petitioners are liable to be acquitted.

:: 7 ::

7. Per contra, Sri Thejesh submits that the

petitioners do not dispute borrowing of money

from the respondent. The bank statement as per

Ex.P41 shows payment of Rs.15,00,000/- to the

petitioners. They do not dispute repayment of

Rs.4,50,000/-. The petitioners admit their

signatures on the cheques. On-demand

promissory notes also prove that the petitioners

borrowed money from the respondent. Therefore

all these documents clearly indicate that the

petitioners issued the cheques for discharging

their liability to the extent of Rs.9,50,000/-. So

far as one answer of PW1 about his not possessing

money lending business, Sri Thejesh submitted

that it does not mean that the respondent was a

money lender. If it was the specific defence of the

petitioners they should have proved that the

respondent was a money lender; there is no

defence evidence at all. Notice sent to petitioner :: 8 ::

No.3 was served through certificate of posting.

The summons issued by the Magistrate Court was

also served on the same address and there was

deemed service, the Magistrate has discussed all

these aspects in detail. The appellate court has

also come to the same conclusion after re-

appreciation of evidence. In this view, there is no

scope for interfering with the judgments of the

courts below.

8. I have perused the judgments of the trial

court and the appellate court, and also the

evidence, both oral and documentary. At the

outset it may be said that the judgments of the

courts below do not suffer from any infirmity.

Exs.P37 to P40 are the on-demand promissory

notes and consideration receipts which clearly

show that the petitioners borrowed an amount of

Rs.15,00,000/- from the respondent. Ex.P41

further establishes the encashment of two cheques :: 9 ::

by the petitioners in connection with Exs.P37 to

P40. Therefore the conclusion arrived at by the

Magistrate that there was a transaction between

the petitioners and the respondent is correct.

Further the petitioners do not dispute their

signatures in the cheques. I do not find any

variations in the handwriting found in the cheques.

What is found in this regard is just a suggestion to

PW4 and nothing more. The first petitioner is the

company and petitioners 2 and 3 are its directors.

The cheque was issued on behalf of the company

and signed by one of the petitioners. Notice to the

company is served. There is no dispute with

regard to it. With regard to service of notice on

petitioner No.3, though there was no service

through registered post, however notice sent

through certificate of posting was served and all

the more important is that the summons sent by

the Magistrate was served on petitioner No.3 at

the same address. Therefore the finding of the :: 10 ::

Magistrate with regard to service on petitioner

No.3 is correct.

9. It is true that PW1 has stated in the cross-

examination that he does not run money lending

business. Just by this answer, no inference can be

drawn that he was not a money lender. If it was

the specific case of the petitioners that the

respondent was a money lender, the burden was

on them to prove this aspect. There is no

evidence at all. In this view, the entire evidence

of respondent has stood unrebutted. The

Magistrate has discussed the evidence properly.

Even the appellate court has re-appreciated the

evidence. I find that the courts below have

applied their mind to the evidence on record.

There cannot be interference with the findings on

facts.

10. In so far as sentence is concerned, the

cheques were issued for Rs.9,50,000/- and that :: 11 ::

the petitioners were sentenced to fine of

Rs.9,55,000/-. In all respects the sentence is

adequate. Therefore there cannot be any

interference with the sentence.

11. In the result, this revision petition fails

and it is dismissed.

The services rendered by Sri K.S.Abhijith is

placed on record. He submits that he does not

claim any fee.

Sd/-

JUDGE

ckl/-