Mr P C Manjunath vs M/S Mahalakshmi Sri Vasavi Credit ...
2022 Latest Caselaw 2419 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 15 T H DAY OF FEBRUARY, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

CRIMINAL REVISION PETITION NO.1231 OF 2015


BETWEEN:

Mr. P.C.Manjunath,
S/o Late Cheluvaraj,
Aged about 50 years,
No.FF2, Sug ar Enclave,
Opp. to Bharg avi Resid ence,
2 n d Main, 2 n d Cross,
Kathriguppe East,
EWS Layout, BSK 3 r d Stag e,
Beng aluru-560085.

Also at R/at No.23,
1 s t Main, 2 n d Cross,
ISRO Layout, Vittalnag ar,
Beng aluru-560078.
                                         ...Petitioner
(By Smt. Sohani Holla, Amicus Curiae)

AND:

M/s. Mahalakshmi,
Sri Vasavi Credit Co-operative
Society Limited ,
No.88-G, 13 t h Cross,
Mahalakshmi Layout,
Beng aluru-560086,
Represented by its
Authorized Officer
Mr. S.M.Patil.
                                        ...Respondent
(By Sri S.N.Bhat, Advocate)
                                     :: 2 ::


        This   Criminal    Revision           Petition    is   filed    under
Section 397 read with 401 of Cr.P.C., praying to set
aside    the    order     of   conviction         in     judgment        dated
17.08.2012 p assed by the XIII ACMM, Beng aluru in
C.C.No.19887/2009 and judgment p assed by the LX
Additional City Civil and Sessions Judge, Beng aluru
(CCH-61),        Beng aluru         in     Crl.A.No.565/2012             dated
02.11.2015.

        This Criminal      Revision           Petition    coming       on   for
final hearing throug h video conferencing this day,
the Court mad e the following:

                                ORDER

This revision petition under Section 397 read

with Section 401 of Cr.P.C., is filed by the accused

in C.C.No.19887/2009 on the file of XIII Additional

Chief Metropolitan Magistrate, Bengaluru, who has

suffered judgment of conviction in relation to

offence punishable under Section 138 of the

Negotiable Instruments Act ('N.I.Act' for short).

Learned Magistrate imposed a fine of

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

simple imprisonment on the petitioner. Thereafter

the petitioner preferred an appeal, :: 3 ::

Crl.A.No.565/2012, in the Court of the LX

Additional City Civil and Sessions Judge, Bengaluru

(CCH-61) and he lost his appeal also. Therefore

this revision petition.

2. I have heard the arguments of Smt.

Sohani Holla, learned Amicus Curiae for the

petitioner and Sri S.N.Bhat, learned counsel for

the respondent.

3. The respondent is a Credit Co-operative

Society. The case of the respondent is that on

03.06.2004, the petitioner availed financial

assistance of `5,00,000/- and agreed to repay the

same with interest in installments. As he failed to

repay the loan amount, the respondent initiated

arbitration proceeding before the Deputy Registrar

of Co-operative Societies. The Deputy Registrar of

Co-operative Societies passed an award against

the petitioner. Therefore the respondent took out

execution for recovery of the award amount and in :: 4 ::

that course, the petitioner is said to have issued

post dated cheque bearing No.126850 dated

25.03.2009 for `6,50,000/-. The said cheque

came to be dishonoured for insufficiency of funds

in the bank account of the petitioner. Therefore

the respondent initiated action under the

provisions of Negotiable Instruments Act.

4. Learned Magistrate, after appreciating

evidence, came to conclusion that the petitioner

issued the cheque for discharging his debt and

since it was dishonoured for want of sufficient

funds in his bank account, he could be convicted

for the said offence. The appellate Court also

confirmed the judgment of the trial Court.

5. Smt. Sohani Holla, learned Amicus Curiae

for the petitioner refers to Ex.P.14, to argue that

the cheque marked as per Ex.P.1 was obtained

from the petitioner forcibly by the officers of the

respondent-Society. She submits that Ex.P.14 is :: 5 ::

the notice issued by the petitioner to the

Secretary of the respondent-society alleging that

the cheque was obtained from the petitioner by

putting threat and therefore the petitioner

requested the respondent to return the cheque. It

is her argument that if the cheque was obtained

from the petitioner in these circumstances, the

trial Court ought not to have held that the

petitioner voluntarily issued the cheque for

discharging his legally enforceable debt. The

petitioner should have been acquitted of the

offence under Section 138 of N.I.Act. Even the

appellate Court has not noticed Ex.P.14. In view

of this legal infirmity in the judgment of the trial

Court as also the appellate Court, the petitioner is

entitled to be acquitted.

6. Sri S.N.Bhat, learned counsel for the

respondent refutes the argument of the learned

Amicus Curiae and submits that the petitioner :: 6 ::

issued the cheque voluntarily and this is

forthcoming in Ex.P.10. The trial Court has

carefully referred to Ex.P.10 to come to conclusion

that Ex.P.14 cannot be considered for doubting the

case of the respondent. In Ex.P.10, it is clearly

written that the petitioner himself issued the

cheque for `6,50,000/- when the execution was

taken out against him pursuant to the award

passed by the Deputy Registrar of Co-operative

Societies. Therefore it is not as though the trial

Court and the appellate Court have doubted the

case of the respondent. In this view, there is no

merit in this revision petition.

7. Since this is the only point urged now, if

Ex.P.10 and P.14 are considered, what appears is

that although the petitioner issued a notice to the

Secretary of the respondent-Society on

24.03.2009 stating that the representatives of the

Society obtained the cheque from him by putting :: 7 ::

threat, the contents of Ex.P.14 is to be doubted

because of Ex.P.10. Ex.P.10 is a record of the

proceeding in CVP No.410/2008-09. The

proceeding dated 06.12.2008 shows that the

petitioner issued two cheques for clearing the

outstanding amount. One cheque was for

`50,000/- and the other was for `6,50,000/-. The

cheque that the petitioner issued for `6,50,000/-

bears No.126850. This is the cheque in question,

which is marked as per Ex.P.1. Therefore Ex.P.10

which cannot be disputed by the petitioner clearly

indicates that it was not on 11.03.2009, that the

cheque was forcibly taken from him by the officers

of the respondent-society as has been mentioned

in para 5 of Ex.P.14, but it was on 06.12.2008, the

petitioner himself issued a post dated cheque for

`6,50,000/-. The petitioner does not dispute the

award passed against him. If he himself issued the

cheque in question for discharging the award

amount, obviously it was for discharging the :: 8 ::

liability due to the respondent. Therefore, as

rightly held by the trial Court, Ex.P.14 does not

assume any significance at all. There is no

probability in the defence put forward by the

petitioner, by relying upon Ex.P.14. In this view I

do not find any infirmity in the judgment of the

trial Court as well as the appellate Court in holding

the petitioner guilty of the offence under Section

138 of N.I.Act.

8. If the sentence part is examined, the

Magistrate has imposed fine of `9,55,000/-, which

is adequate and in accordance with law. Therefore

I do not find any good reason to interfere with the

judgment of the appellate Court which has

confirmed the judgment of the trial Court.

Revision petition is therefore dismissed.

The services rendered by Smt. Sohani Holla,

learned Amicus Curiae is placed on record. Smt.

Sohani Holla, learned Amicus Curiae submits that :: 9 ::

she will file a memo to the effect that she has

rendered pro-bono services.

Sd/-

JUDGE

Kmv/-