M/S Wavetech Telecom Private ... vs Unitel Media Private Limited
2022 Latest Caselaw 2991 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 22 N D DAY OF FEBRUARY, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

    CRIMINAL PETITION NO.790/2021 C/W
      CRIMINAL PETITION NO.798/2021,
CRIMINAL REVISION PETITION NO.594/2021 AND
  CRIMINAL REVISION PETITION NO.896/2021

In Crl.P.No.790/2021

BETWEEN:

M/s. Wavetech Telecom Private Limited,
No.447, 1 s t A Main, 5 t h Cross,
Rajarajeswari Layout,
Gnana Bharathi, Nag ad evanahalli,
Beng aluru-560056
Represented by its Director
C.H.Srinivasa Raju.

Now at No.12,
Ground Floor, Sumukha Enclave,
Near KLE Law College,
Hirohalli, Visweswara Layout,
7 t h Block, Beng aluru-560091.
                                             ...Petitioner
(By Sri Rameshchandra, Advocate)

AND:

1.    UNITEL MEDIA Private Limited
      No.32, Next to S-HIG B-6,
      4 t h Cross, 3 r d Main Road ,
      KHB 5 t h Phase, Yelahanka New Town,
      Beng aluru-560064
      Represented by its Director
      Sri G.Suresh Bab u
                          :: 2 ::


2.   Sri G.Suresh Bab u,
     S/o Mahad evaiah,
     Aged about 50 years,
     Director,
     UNITEL MEDIA Private Limited,
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064.

3.   Lakshmi Radhika
     Wife of G.Suresh Bab u,
     Aged about 45 years,
     Director
     UNITEL MEDIA Private Limited,
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064.
                                        ...Respondents

(By Sri Dayanand a Patil S.M., Ad vocate for R1 to R3)

      This Criminal Petition is filed under Section 482
of Cr.P.C. p raying to revise and modify the ord er
dated 21.04.2018 of the XLII A.C.M.M., Beng aluru in
C.C.No.8455/2017 and enhance the fine amount to
more than the double the cheq ue amount and direct
payment of double the amount of the cheque to the
petitioner herein out of fine amount imposed and to
revise the sentence and allow the petition.


In Crl.P.No.798/2021

BETWEEN:

M/s. Wavetech Telecom
Private Limited,
No.447, 1 s t A Main, 5 t h Cross,
Rajarajeswari Layout,
Gnana Bharathi, Nag ad evanahalli,
Beng aluru-560056
                          :: 3 ::


Represented by its Director
C.H.Srinivasa Raju.

Now at No.12,
Ground Floor, Sumukha Enclave,
Near KLE Law College,
Hirohalli, Visweswara Layout,
7 t h Block, Beng aluru-560091.
                                            ...Petitioner
(By Sri Rameshchandra, Advocate)

AND:

1.   Universal Telecommunications
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064
     Represented by its Prop rietor
     Sri G.Suresh Bab u

2.   Sri G.Suresh Bab u,
     S/o Mahad evaiah,
     Aged about 50 years,
     Proprietor
     Universal Telecommunications,
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064.

3.   Lakshmi Radhika
     Wife of G.Suresh Bab u,
     Aged about 45 years,
     Proprietor, Universal Telecommunications,
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064.
                                        ...Respondents

(By Sri Dayanand a Patil S.M., Ad vocate for R1 to R3)
                          :: 4 ::



      This Criminal Petition is filed under Section 482
of Cr.P.C. praying to allow this p etition and revise and
modify the ord er dated 21.04.2018 of the XLII
A.C.M.M.,    Beng aluru    in  C.C.No.8458/2017       and
enhance the fine amount to more than the double the
cheque amount and direct payment of double the
amount of the cheque to the petitioner herein out of
fine amount imposed and to revise the sentence.

In Crl.RP.No.594/2021

BETWEEN:

1.   M/s. UNIVERSAL TELECOMMUNICATIONS,
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064
     Represented by its Prop rietor
     Sri G.Suresh Bab u

2.   Sri G.Suresh Bab u,
     S/o Mahad evaiah,
     Aged about 47 years,
     Proprietor,
     M/s. Universal Telecommunications,
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064.

3.   Smt. Lakshmi Radhika
     Wife of G.Suresh Bab u,
     Aged about 37 years,
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064.
                                            ...Petitioners
(By Sri Dayanand a Patil S.M., Ad vocate)
                           :: 5 ::


AND:

M/s. Wavetech Telecom Private Limited,
No.447, 1 s t A Main, 5 t h Cross,
Rajarajeswari Layout,
Gnana Bharathi,
Nag adevanahalli,
Beng aluru-560056
Represented by its Director
C.H.Srinivasa Raju.
                                         ...Respondent
(By Sri Rameshchandra, Advocate)

      This Criminal Revision Petition is filed under
Section 397 read with 401 of Cr.P.C., praying to set
aside the imp ugned order d ated 21.04.2018 p assed by
the XLII A.C.M.M., Nrup athung a Road, Beng aluru in
C.C.No.8458/2017 at Annexure-A and other order
dated 21.10.2020 passed by the LXVIII Additional City
Civil    and     Sessions     Judge,     Beng aluru in
Crl.A.No.904/2018 marked at Annexure-B of this
petition and acq uit the p etitioners/accused from the
said false charg es under p rovisions of N.I.Act.

In Crl.RP.No.896/2021

BETWEEN:

1.   M/s. UNITEL MEDIA Private Limited ,
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064
     Represented by its Director
     Sri G.Suresh Bab u

2.   Sri G.Suresh Bab u,
     S/o Mahad evaiah,
     Aged about 47 years,
     Director,
     Unitel Med ia Private Limited
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
                          :: 6 ::


     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064.

3.   Smt. Lakshmi Radhika
     Wife of G.Suresh Bab u,
     Aged about 37 years,
     Director,
     Unitel Med ia Private Limited
     No.32, Next to S-HIG B-6,
     4 t h Cross, 3 r d Main Road ,
     KHB 5 t h Phase, Yelahanka New Town,
     Beng aluru-560064.
                                            ...Petitioners
(By Sri Dayanand a Patil S.M., Ad vocate)

AND:

M/s. Wavetech Telecom Private Limited,
No.447, 1 s t A Main, 5 t h Cross,
Rajarajeswari Layout,
Gnana Bharathi, Nag ad evanahalli,
Beng aluru-560056
Represented by its Director
C.H.Srinivasa Raju.
                                            ...Respondent
(By Sri Rameshchandra, Advocate)

     This Criminal Revision Petition is filed under
Section 397 read with 401 of Cr.P.C., praying to set
aside the imp ugned order p assed by both trial court in
C.C.No.8455/2017 on 21.04.2018 on the file of the
XLII ACMM., Nrup athung a Road, Beng aluru City at
Annexure-A and other d ated 21.10.2020 p assed in
Crl.A.No.903/2018 by the LXVIII Additional City Civil
and Sessions Judge, at Beng aluru City marked at
Annexure-B of this petition.

     These Petitions having been heard and reserved
on 28.01.2022, coming on for pronouncement this
day, the court p ronounced the following:
                            :: 7 ::


                         ORDER

The judgments of conviction in two

proceedings namely C.C.8455/2017 and 8458/2017

on the file of XLII ACMM, Bengaluru, gave rise to

two Criminal Appeals No. 903/2018 and 904/2018

and two Criminal Revision Petitions No.356/2018

and 357/2018 being filed before the Additional

City Civil and Sessions Judge, Bengaluru. The

orders dated 21.10.2020 in the Criminal Revision

Petitions have led to Criminal Petitions 790/2021

and 798/2021, the judgments dated 21.10.2020 in

the Criminal Appeals have given rise to Criminal

Revision Petitions 594/2021 and 896/2021 being

filed before this court. The factual background in

both the criminal cases briefly stated is as follows:

2. For the sake of convenience, the parties

will be referred with respect to their names while

narrating the facts.

:: 8 ::

3. In C.C.8455/2017 the complainant is M/s

Wavetech Telecom Private Limited (for short

'Wavetech'), and the first respondent is a private

limited company namely Unitel Media Private

Limited (for short 'Unitel') and accused 2 and 3

namely Sri G.Suresh Babu and Smt. Lakshmi

Radhika are its directors. It is the case of

Wavetech that Sri G.Suresh Babu and Smt.

Lakshmi Radhika being the directors of Unitel used

to place orders with it for purchasing telecom and

IBS components and that it used to supply the

components to Unitel. In connection with these

transactions, Unitel was found due in a sum of

Rs.9,60,235/-. In order to discharge this liability,

Unitel issued a cheque dated 14.8.2014 bearing

126189 drawn on HDFC Bank for a sum of

Rs.8,04,497/-. When Wavetech presented this

cheque for encashment, it was returned as Unitel

had given 'stop payment' instructions to the bank.

Then Wavetech issued a demand notice on :: 9 ::

27.8.2014. The same was served on Unitel and its

Directors. Payment was not made and therefore,

Wavetech initiated criminal action under section

138 of the Negotiable Instruments Act (for short

'the Act').

4. Likewise, Wavetech initiated another

action under section 138 of the Act against a

proprietorship concern, namely Universal

Telecommunications (for short 'Universal). Sri

G.Suresh Babu and Lakshmi Radhika are its

proprietors. The transaction is that the

proprietors were found due in a sum of

Rs.10,27,105/- for the purchases made by them

from Wavetech from 11.1.2013 onwards under

different bills. For discharging this liability, totally

three cheques were issued by Universal. Two

cheques were dated 10.8.2014 and drawn for sum

of Rs.1,00,000/- and other for Rs.22,475/-. The

third cheque was dated 14.8.2014 for Rs.

:: 10 ::

Rs.6,75,769/- These cheques were also not

honoured as payments had been stopped by the

drawers. Therefore on 27.8.2014 Wavetech issued

demand notice and initiated action under section

138 as the drawers of the cheque did not comply

with the demand.

5. After trial of these two cases, the learned

ACMM found the first accused Unitel in

C.C.8455/2017 guilty of the offence under section

138 of the Act and sentenced all the three accused

to fine of Rs.11,09,000/- with a default sentence

of four months simple imprisonment to be

undergone by its directors. In C.C.8458/2017, the

first accused Universal was found guilty and its

proprietors were sentenced to fine of

Rs.11,09,000/- with default sentence of four

months simple imprisonment.

6. Aggrieved by the judgment of conviction,

the accused preferred two appeals to the Sessions :: 11 ::

court. The complainant also filed revision

petitions to the Sessions court questioning

inadequacy of sentence imposed by the ACMM.

The Sessions Court dismissed the Criminal Appeals

and the Criminal Revision Petitions and hence the

parties are before this court now.

7. The trial court has recorded findings that

the accused do not dispute the cheques in

question and the signatures on them, and in view

of this, presumption under section 118 and section

139 of N.I.Act could be drawn. The complainant

also issued legal notice to the accused and it was

served on the accused. The accused do not

dispute this and that they did not issue reply.

Moreover the accused do not dispute the case of

the complainant that the latter supplied telecom

and IBS components and this was the transaction

in respect of which they were due to pay a certain

sum of money to the complainant. Further it is :: 12 ::

held by the trial court that there is no consistency

in the defence put forward by the accused, in this

regard what is observed is that the accused issued

stop payment instructions to the bank giving

reason that there was dispute in regard to the bills

issued by the complainant, but whereas in the

application filed by accused No.3 for discharge, it

was stated that the complainant collected the

cheque by way of security. If really the accused

had issued the cheques for security purpose, the

same reason could have been given in the stop

payment instructions. In another stop payment

instruction, it is stated that the cheques were lost,

but the accused did not go to police station to

lodge complaint with regard to the lost cheques.

Therefore in view of these inconsistencies, defence

versions cannot be believed.

8. So far as the settlement is concerned, it is

held by the trial court that while cross-examining :: 13 ::

PW.1, she was not questioned about the

settlement at all or at least a suggestion was also

not given. If really there had taken place a

settlement, soon after the accused received the

demand notice, nothing prevented the accused

from coming out with the fact of settlement having

taken place so as to say that there was probability

in her defence version. In view of this, the

accused have utterly failed to rebut the evidence

of the complainant and hence, the accused can be

held guilty of the offence under section 138 of

N.I.Act.

9. It is not necessary to refer to the judgment

of the appellate court in detail as it has just

confirmed the findings of the trial court.

10. Assailing the judgments of the trial court

and the appellate court, Sri. Dayananda Patil,

learned counsel for the petitioners / accused

argued that both the courts below have utterly :: 14 ::

failed to understand the actual contentions of the

parties. No doubt the accused do not dispute to

have purchased certain items from the

complainant, but the burden was on the

complainant to prove that there existed legally

enforceable debt for prosecuting the accused. The

trial court has failed to notice that the accused

relied upon a document as per Ex.D.7 to prove

that there had taken place a settlement between

them and the complainant according to which the

accused were to pay a sum of Rs.13,22,475/- and

out of this sum, the accused made payment of

Rs.8,00,000/- as evidenced by Ex.D.3 to D.5 and

that the balance of Rs.5,00,000/- was paid by way

of cash. The judgment of the trial court very well

discloses that it has just considered the evidence

given by the complainant and totally ignored the

defence evidence. He argued that non

consideration of the evidence given by the accused

has seriously resulted in the accused being :: 15 ::

convicted even though they were not due to pay

any amount to the complainant. Merely for the

reason that the accused did not reply to the legal

notice issued by the accused, that itself cannot be

a ground for totally disbelieving the defence

version. When the accused are entitled to lead

evidence, and accordingly the second accused

entered the witness box, his evidence should have

been given due weightage. The invoices produced

by the complainant should not have been relied

upon by the trial court to come to conclusion that

the accused issued the cheques under question to

clear the liability in connection with purchase of

goods as depicted in the invoices. In the VAT 100

forms, there was no reference to invoice numbers

and in this view the entire transaction between the

complainant and the accused was doubtful. Thus

seen, there did not exist a legally enforceable debt

for prosecuting the accused under section 138 of

N.I.Act. Instead of returning the cheques after :: 16 ::

the accused cleared the entire outstanding amount

as per the settlement, the complainant misused

the cheques which were issued by way of security.

The trial court has wrongly held that the accused

have taken inconsistent defences. In this regard it

was his argument that, the accused can take any

defence, but unless the initial burden of proving

the existence of legally enforceable debt is

discharged by a complainant, presumption cannot

be drawn. The trial court has wrongly drawn the

presumption without appreciating the defence

evidence. Therefore there is perversity in

appreciation of evidence. The appellate court has

also mechanically confirmed the judgment of the

trial court. For this reason revision petitions

deserve to be allowed.

11. Sri. Ramesh Chandra for the complainant/

respondent submitted that the accused do not

dispute the actual transaction of purchasing :: 17 ::

components from the complainant and that the

invoices produced by the complainant prove the

transaction between the parties. The entire

transaction depicted in the invoices cannot be

disbelieved merely for the reason that in some of

the VAT 100 forms, the invoice numbers are not

mentioned. The accused cannot question the VAT

100 forms when they admit the purchases made

from the complainant.

12. It is further argued by Sri. Ramesh

Chandra that the accused do not dispute the

signature on the cheques. Therefore the burden

is on them to rebut the complainant's case. They

refer to a settlement as per Ex.D.7. It was argued

that the accused cannot refer to a settlement deed

because the trial court actually did not mark any

settlement deed. The accused are relying upon

the documents which were not marked in the trial :: 18 ::

court. Rightly the trial court has disbelieved the

existence of any settlement.

13. It was his further submission that one Mr.

Gupta was the common auditor for the

complainant and the accused. It is the case of

accused that settlement was finalized in the

presence of Gupta, in that view the accused should

have examined Mr. Gupta. Moreover while cross-

examining the complainant i.e., PW.1, he was not

at all questioned about the agreement. For the

first time while leading defence evidence, the

theory of settlement was introduced, and that the

trial court did not think of considering it as it

should have been disclosed at the earliest point of

time i.e., by issuing a reply to the demand notice.

In this view both the courts below have come to

right conclusion to convict the accused and that

there are no grounds to allow the revision

petitions.

:: 19 ::

14. In regard to two criminal petitions filed by

the complainant under section 482 Cr.P.C., it was

the argument of Sri. Ramesh Chandra that the trial

court and the appellate court have failed to

sentence the accused adequately in accordance

with the sentencing structure found in section 138

of N.I.Act. The accused should have been

subjected to fine equal to double the cheque

amount. The transaction was commercial. The

complainant has suffered a great loss on account

of dishonour of cheque and initiating criminal

action against the accused. The complainant has

to be suitably compensated. The appellate court

failed to notice the error committed by the trial

court. In this view criminal petitions have to be

allowed and the sentence enhanced.

15. Sri. Dayananda Patil replied that the

criminal petitions filed by the complainant have to

be dismissed. The sentencing structure provided :: 20 ::

in section 138 of N.I.Act does not mandate that in

all the cases fine equal to double the cheque

amount should be levied. It lies within the

discretion of the court. When the complainant has

already received the entire balance due from the

accused, he cannot insist on enhancing the

sentence. Therefore these petitions under section

482 Cr.P.C. are to be dismissed.

16. I have examined the points that the

learned counsel for the parties raised while

arguing. The tenor of argument of Sri. Dayananda

Patil shows that the trial court has utterly failed to

appreciate the evidence, especially the defence

evidence and thus the interest of the accused have

been affected. In the revision petition, there is no

scope for re-appreciation of evidence, but when it

is pointed out that the trial court as also the

appellate court have committed serious errors

leading to failure of justice, the revisional court :: 21 ::

should take cognizance of it. Now with this back

ground, if the case is analyzed, it appears very

well that the trial court has just proceeded on the

premise of drawing presumption under section 139

of N.I.Act, as the petitioner being the accused did

not reply to the demand notice and that the

defence version is just an after thought. The

judgment of appellate court just appears to be

mechanical affirmation of trial court's findings

without application of mind.

17. The transaction which gave rise to dispute

between the parties is not disputed, but what is

disputed is actual sum of money due by the

accused to the complainant. It is in this connection

that the accused speak about a settlement in the

presence of one Gupta, who ought to have been

examined, but was not examined. However the

accused refer to Ex.D.7, an email correspondence

which was marked subject to objection perhaps :: 22 ::

taken by counsel for the respondent / complainant.

What was the objection taken, is not forthcoming

and the trial court has not referred to it. Even

while arguing in revision, Sri. Ramesh Chandra

seriously objected to considering Ex.D.7.

Therefore even if Ex.D.7 is ignored and if it is

examined whether an agreement might have taken

place between the parties, an inkling to it can be

obtained from the manner in which DW.1 is cross-

examined. Yes, at one stage DW.1 has answered

in cross-examination that there had not taken

place any settlement as stated by him in the

examination-in-chief. But when DW.1 gave further

evidence on 31.10.2017, an answer was elicited

from him in the cross-examination that he was due

to pay Rs.13,00,000/- to the respondent-

complainant as per settlement.

18. There are two more documents which the

trial court as also the appellate court have :: 23 ::

completely ignored and upon which there is no

cross-examination at all. They are bank

statements of the accused, marked Ex.D.3 to D.5

which disclose payment of totally a sum of

Rs.8,00,000/- to the respondent/complainant on

different dates. To put it more specifically, there

are entries showing two cheque payment of

Rs.1,00,000/- each on 17.5.2014 to Wavetech,

again Rs.1,00,000/- each on 31.5.2014 and

7.6.2014, and Rs.4,00,000/- on 1.7.2014 to

Wavetech Telecom Pvt. Ltd., i.e., 1 s t complainant

company. Ex.D.6 is another defence document

which is not disputed as there was no objection at

the time of marking it and that there is no cross-

examination on it. Ex.D.6 is an email

correspondence with attachment generated on

13.5.2014 and it clearly indicates that the actual

sum due by Suresh Babu i.e., accused No.2 to

Srinivasa Raju, (who represents complainant

company) was Rs.13,22,475/-. Now if Exs.D.2 to :: 24 ::

D.6 are considered in juxtaposition to the dates

that the cheques in question bear, certain

inferences as to existence of probability in the

defence version may be drawn. Of the three

dishonoured cheques marked as Ex.P.2 to P.4 in

C.C.No.8458/2017, two cheques bear the date

10.8.2014 and one cheque bears the date

14.8.2014. The cheque marked as Ex.P.2 in

C.C.No.8455/2017 also bears the date 14.8.2014.

The total sum of all the four cheques is

Rs.16,02,741/-, whereas total sum agreed to be

paid by the accused was Rs.13,22,475/-. Exs. D.3

to D.5 evidence payment of Rs.8,00,000/-. The

accused contend to have made payment of balance

of Rs.5,00,000/- by cash, and of course as

admitted by DW1 there is no documentary proof

for cash payment. Even if cash payment of

Rs.5,00,000/- is not possible to be believed, the

respondent was to be paid only Rs.5,22,475/-.

Looked in this view, the defence stand about the :: 25 ::

settlement is probable to be accepted. Therefore

though Ex.D7 can be ignored, and even though Mr.

Gupta was not examined for proving the

settlement, the circumstances indicate possibility

of settlement.

19. It is true that the accused did not reply to

the demand notices and that while cross examining

PW1, questions pertaining to settlement were not

put. If reply had been given to the demand notice

and PW1 had been questioned in the cross-

examination effectively, they would have

strengthened the defence, but nevertheless, when

DW1 entered the witness box and introduced

specific defences, and if he was not questioned at

all on some documents which have the effect of

destabilizing the respondent/complainant's case, it

may be stated that his evidence is suitably

rebutted. The defence evidence should also

receive equal weightage while appreciating :: 26 ::

evidence. Mere failure to reply to the demand

notice cannot always be viewed negatively against

the accused; facts and circumstances of every

case must be considered to arrive at conclusions.

20. It is true that as has been observed by

the trial court, there is inconsistency in the other

defences put forward by DW1 and I do not think it

necessary to delve on those aspects in detail as

the findings cannot be disturbed, but not

withstanding those inconsistencies, from the

discussion made above as to actual sum due by

the accused, a clear inference may be drawn that

it was doubtful that DW1 would have issued the

cheques for clearing the amount outstanding in

connection with purchases depicted in the invoices

produced by the respondent/complainant.

Possibility of misusing the cheques signed by DW1

in the given set of circumstances cannot be ruled

out. Therefore the findings of the trial court and :: 27 ::

the appellate court just appear to be perfunctory,

there is no serious appreciation of evidence, all

that is forth coming is just one sided evaluation of

evidence.

21. There is another legal infirmity. In

C.C.No.8455/2017, the first accused is a company.

The third accused i.e., petitioner No.3 is shown as

a Director, but in the complaint, there is no

averment that she was also responsible for the

day-to-day business of the company, and that she

is not a signatory to cheque. Likewise, in

C.C.No.8458/2017, 1 s t accused is a proprietary

concern, and accused No.3 is also shown as a

proprietor. The cheque in question in this case

has not been signed by her. It is doubtful that

there can be more than one proprietor to a

business concern. Her role in the business of the

firm is not specifically stated. In this view, she :: 28 ::

could not have been prosecuted at all. Both the

courts below have lost sight of this aspect.

22. Therefore from the above discussion I find

that both the revision petitions deserve to be

allowed and the judgments of the court below, set

aside to record acquittal of the accused.

Accordingly ordered, and the petitioners are

acquitted of the offence under Section 138 of N.I.

Act.

23. In view of the criminal revision petitions

being allowed, the criminal petitions No.790/2021

and 798/2021 are dismissed as they do not survive

for consideration.

Sd/-

JUDGE ckl/sd