M/S Protec Sol vs Sri. M. Uday
2022 Latest Caselaw 3391 Kant

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

       CRIMINAL REVISION PETITION NO.1158/2019

BETWEEN:

M/S. PROTEC SOL
NO.20, SAPTHAGIRI
4TH CROSS, GURURAJA LAYOUT,
BEHIND VIDHYAPEETHA,
BANASHANKARAI III STAGE,
BENGALURU-560050.
REPRESENTED BY ITS PROPRIETOR,
M.S.BALAJI.                                ...PETITIONER

          (BY SRI SHARATH N., ADVOCATE [ABSENT])

AND:

SRI M.UDAY
PROPRIETOR,
BEST LADIES P.G.
NO.27, 1ST CROSS,
SAMPIGE ROAD,
MALLESHWARAM,
BENGALURU-560 003

ALSO AT NO.463/35, 64TH CROSS,
5TH BLOCK, RAJAJINAGAR,
BENGALURU-560010.                         ...RESPONDENT

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO
MODIFY    THE    JUDGMENT     DATED    10.07.2019   IN
CRL.A.NO.654/2016 ON THE FILE OF LXVII ADDITIONAL CITY
                                 2



CIVIL  AND   SESSIONS   JUDGE,  BENGALURU    (CCH-68),
CONSEQUENTLY IN C.C.NO.8561/2013 DATED 26.03.2015 THE
ORDER PASSED BY THE XXV ADDL. C.M.M., BENGALURU AT
ANNEXURES-A AND B BY IMPOSING DOUBLE THE PENALTY AND
RAISE THE COMPENSATION AMOUNT OF THE PETITIONER.

    THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

This criminal revision petition is filed to modify the

judgment dated 10.07.2019 in Crl.A.No.654/2016 on the file of

the LXVII Additional City Civil and Sessions Judge, Bengaluru

City, consequently in C.C.No.8561/2013 dated 26.03.2015 on

the file of the XXV Additional Chief Metropolitan Magistrate,

Bengaluru imposing double the penalty and raise the

compensation amount of the petitioner.

2. This matter is listed for Admission and learned

counsel appearing for the petitioner has repeatedly not appeared

before the Court. The order sheet also reveals that, at the

instance of the petitioner, the matter was adjourned on

24.09.2021, 04.10.2021 and 23.10.2021. This Court also

granted time again on 14.01.2022, adjourned the matter and as

a last chance, ordered to list this matter after two weeks. When

the matter was again listed after two weeks on 11.02.2022, no

representation on behalf of the petitioner. Hence, this Court

made an observation in the order that 'petitioner's counsel shall

be present without fail on the next date of hearing, otherwise,

the Court will proceed to dispose of the matter in accordance

with law'.

3. Having perused the order of the Trial Court, the

proceedings was initiated by the petitioner against the

respondent for the offence punishable under Section 138 of

Negotiable Instruments Act ('N.I. Act' for short) and thereafter,

imposed fine of Rs.2,000/- along with the cheque amount of

Rs.10,00,000/- and ordered to pay a sum of Rs.10,02,000/-.

Out of that, Rs.10,00,000/- is ordered to be payable to the

complainant and the remaining Rs.2,000/- was confiscated to

the State.

4. Being aggrieved by the said order, the petitioner

herein has filed an appeal in Crl.A.No.654/2016 and the

Appellate Court dismissed the appeal, confirming the judgment

of the Trial Court. Being aggrieved by the said judgment, the

complainant has preferred this criminal revision petition

contending that imposition of lesser penalty is both opposed to

law and facts. The Appellate Court, while dismissing the pray for

enhancement, came to the conclusion that the cheque has been

issued for the purpose of security and also that the amount was

invested for the purpose of partnership. The Appellate Court,

further observed that the partners are abide by the terms and

conditions of the partnership deed and they have to bear the

profit and loss and without the commencement of the

commercial transaction, the accused cannot be penalized.

5. Learned counsel for the revision petitioner would

further contend that the Appellate Court failed to consider the

case of the revision petitioner for enhancement of sentence. The

learned counsel would also vehemently contend that the

Appellate Court failed to observe that, even though the cheque

was issued for security, the Trial Court, categorically observed

that the accused had the knowledge of presentation and the

accused has given the consent to present the cheque. The

reasoning given by the First Appellate Court for rejection of the

prayer for enhancement is improper and without justification.

The respondent has admittedly involved in several complaints of

similar nature and he is a habitual offender being involved in

such offences. The counsel would further contend that the

transaction relates to the year 2012, the respondent having not

paid the amount legally payable has rendered the complainant

inexplicable loss which remains redressed in no other manner.

The Appellate Court has not imposed the interest on such

compensation amount award till realization.

6. Learned counsel for the revision petitioner would

further contend that the amount was paid to the accused in

2012, the complaint was filed in the year 2013 and failed to take

note of the transaction of the year. On perusal of the material

available on record, it is seen that the transaction has taken

place in the year 2012. The Trial Court, while passing the order

of sentence, taken note of the material on record and the record

disclose that there was a transaction and there are sufficient

grounds to accept the guilt of the accused. The cheque itself is

for Rs.10,00,000/- and no reason is assigned for stoppage of

payment. Thus, the accused is found guilty of the offence and

the Appellate Court comes to the conclusion that the ends of

justice would be met, if the cheque amount plus fine of

Rs.2,000/- is ordered to be payable by the accused.

7. The Appellate Court, while dismissing the appeal filed

by the petitioner herein for enhancement of the sentence also

comes to the conclusion that the vital defense raised by the

accused is that the investment is intended to be made for the

proposed project and as a security, the cheque was issued.

Therefore, even though the liability is established as per

admitted facts and documents and endorsement given by the

accused, it is apparent that the project work initiated in

partnership. Therefore, penalization of higher sentence does not

in any way justifiable. The partners are abide by the terms and

conditions of the partnership deed and they have to bear the

benefits and loss. Therefore, without being beginning of the

project, one cannot be penalized more than the amount due

under the instrument, as it is not initiated as commercial

transaction, so as to raise any benefit unless the project is

implemented. Hence, the Appellate Court, comes to the

conclusion that the Trial Court is justified in imposing of fine and

payment of compensation.

8. Having taken note of the reasoning assigned by the

Trial Court and also the Appellate Court in paragraph No.19 that

the very project is not implemented and the project work was

initiated in partnership and the parties are liable to bear both the

benefits and loss. When such reasoning is given in paragraph

No.19 by the Appellate Court considering the inadequate

compensation and sentence ordered by the Trial Court and

having considered the factual aspects of the case and the liability

which has arisen between the parties, it is not a fit case to

invoke the revisional jurisdiction.

9. In view of the discussions made above, I pass the

following:

ORDER

The criminal revision petition is dismissed.

Sd/-

JUDGE

ST