Power Track vs Smt Roopa V Hubli
2022 Latest Caselaw 520 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 12 T H DAY OF JANUARY, 2022

                           BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

CRIMINAL REVISION PETITION NO.1206 OF 2015

BETWEEN:

1.     Power Track,
       No.107/1, CMC Khata,
       No.133, Mallathahalli V illage,
       Yeshw anthpura Hobli,
       Bengaluru North Taluk,
       Bengaluru-560056.
       Rep. by its Proprietor,
       Sri P.A.A.Khan.

2.     Sri P.A.Khan,
       S/o P.M.Khan,
       Aged about 63 ye ars,
       Proprietor of Pow er Track,
       No.107/1, CMC Khata
       No.133, Mallathahalli V illage,
       Yeshw anthpura Hobli,
       Bengaluru North Taluk,
       Bengaluru-560056.
                                               ...Petit ioners
(By S ri Narayanaswamy V.K., Advocate)

AND:

Smt. Roopa V. Hubli,
W/o V ijay S. Hubli,
Proprietrix of AVR Enertech,
Aged about 46 years,
R/at No.15, 3 r d Floor,
5 t h Main, 7 t h Cross,
Ganganagar, Bengaluru-560032.
                                               ...Respondent
(By S ri R avi B . Naik, Senior Counsel fo r
    Sri K.B.Mone sh Kumar, Advocate)
                               :: 2 ::



     This Criminal Revision Petition is filed under
Section 397(2) of Cr.P.C., praying to set asid e the
judgment and order dated 12.08.2015 p assed in
Crl.A.No.843/2014 by the court of the LVIII Additional
City Civil and Session Judge, (CCH-59), Beng aluru
City and confirm the judgment and order dated
28.07.2014 in C.C.No.20462/2010 passed by the
learned XII Addl.C.M.M., Bengaluru City.

     This Criminal Revision Petition coming on for
hearing through video conferencing this d ay, the
Court mad e the following:


                              ORDER

This revision petition is filed under Section

397 of Cr.P.C., by the accused in

C.C.No.20462/2010 on the file of the XII

Additional Chief Metropolitan Magistrate,

Bengaluru.

2. The facts of the case are:

The respondent initiated proceeding against

the petitioners for the offence punishable under

Section 138 of the Negotiable Instruments Act

('N.I.Act' for short), by filing a complaint under

Section 200 of Cr.P.C. The respondent is the :: 3 ::

proprietrix of a business concern, namely, A.V.R.

Enertech, which is involved in the business of

manufacturing electronic items. The first

petitioner is the proprietary concern and the

second petitioner is the proprietor. On behalf of

the first petitioner, the second petitioner used to

purchase electronic goods from the respondent.

The second petitioner also owns another

business concern, namely, Power Track

and he used to purchase goods from the

respondent on behalf of Power Track. On

26.06.2008 and 28.06.2008, the second petitioner

placed orders with the respondent on behalf of

Power Track. Accordingly, the respondent supplied

the electronic items in several batches on credit

basis to the petitioners and thus the petitioners

were due to the respondent in a sum of

Rs.12,21,680/-, excluding VAT. Out of

12.21.680/-, certain payments had been made and

there remained a balance of Rs.8,25,110/-. It is :: 4 ::

further case of the respondent that the petitioners

issued three cheques on 25.11.2008 for

Rs.1,64,288/- being part payment of

Rs.8,25,110/-. Those cheques were dishonored for

insufficiency of funds in the account of the

petitioners. Thereafter the petitioners issued a

cheque bearing No.625644 dated 26.08.2009 for

Rs.2,72,082/- drawn on Canara Bank,

Vasanthanagar Branch and another cheque bearing

No.332862 dated 28.11.2009 for Rs.4,88,362/-

drawn on State Bank of India, Peenya Industrial

Area Branch, Bengaluru to the respondent towards

part payment of outstanding amount of

Rs.8,25,110/-. When these two cheques were

presented for encashment, they were returned

with an endorsement 'Exceeds arrangement'.

Thereafter the respondent issued a demand notice

to the petitioners by registered post with

acknowledgment due and certificate of posting.

Though the petitioners received the notice, they :: 5 ::

did not make payment and therefore the

respondent approached the Court of Magistrate

with a complaint under Section 200 of Cr.P.C.

3. The respondent adduced evidence as PW1

and produced 18 documents in proof of her case.

The second petitioner adduced evidence as DW1

and produced two documents as Ex.D1 and D2.

The learned Magistrate after appreciating the

evidence dismissed the complaint and acquitted

the petitioners for the offence punishable under

Section 138 of N.I.Act. Aggrieved by the

judgment of the trial Court, the respondent

preferred an appeal to the Court of LVIII

Additional City Civil and Sessions Judge,

Bengaluru, (CCH-59). The appellate Court vide

judgment dated 12.08.2015, reversed the

judgment of the learned Magistrate and convicted

the petitioners for the offence punishable under

Section 138 of N.I.Act and then sentenced the :: 6 ::

second petitioner to pay fine of Rs.12,00,000/- out

of which Rs.11,75,000/- is to be paid to the

respondent towards compensation. Aggrieved by

the judgment of the appellate Court, the

petitioners are before this Court in revision.

4. I have heard the arguments of Sri

Narayana Swamy V K, learned counsel for the

petitioners and Sri Ravi B Naik, learned Senior

Counsel on behalf of Sri K.B.Monesh Kumar,

learned counsel for the respondent.

5. It is the argument of Sri Narayana

Swamy V K, that the appellate Court has

committed an error in reversing the judgment of

the Magistrate, who rightly came to conclusion

that the respondent was not able to prove her

case. The findings given by the Magistrate clearly

indicate that the cheques in question were issued

in connection with the hand loan transaction with

the husband of the respondent and that there is a :: 7 ::

clear admission of PW1 that the hand loan was

cleared. The Magistrate has noticed this

admission of PW1 and also other admissions that

actually the cheque was not issued to the

respondent and rather it was issued to the

husband of the respondent. Noticing these glaring

discrepancies in the evidence of PW1, the

Magistrate dismissed the complaint and acquitted

the petitioners. But the appellate Court reversed

the findings of the Magistrate without appreciating

the evidence in proper perspective. The findings

of the appellate Court are not sustainable,

because, the clear admissions given by PW1 have

not been considered by the appellate Court, rather

it has substituted its own reasons for convicting

the petitioners. It is submitted further that

actually the transaction that the respondent put

forward in her complaint is not supported by any

document. Ex.P.9 to P18 does not in any way

establish the transaction between the respondent :: 8 ::

and the petitioners. The cheques in question were

issued prior to the invoices that the respondent

has produced, wrongly the first appellate Court

has come to conclusion that these invoices

indicate supply of electronic items to the

petitioners by the respondent and in that

connection the cheques were issued. These

findings are not correct. The petitioners could not

have been convicted for the offence under Section

138 of N.I.Act and hence the judgment of the

appellate Court is to be set-aside and that the

judgment of the Magistrate is to be restored.

6. Per contra, Sri Ravi B Naik, learned

Senior Counsel for the respondent argued that the

Magistrate's judgment clearly indicates certain

stray answers of PW1 in the cross examination

being given importance for disbelieving the entire

case. The Magistrate has referred to some

answers of PW1 which are in the form of :: 9 ::

admissions, but he has not considered the

subsequent answers given by PW1. If the

Magistrate had appreciated the evidence of PW1 as

a whole, the petitioners ought to have been

convicted by the learned Magistrate. The

Magistrate has come to conclusion that Ex.P.9 to

P18 do not establish the transaction between the

respondent and the petitioners in relation to

supply of electronic items. This is a wrong

finding, which has been set-right by the appellate

Court after re-appreciating the evidence. If the

judgment of the appellate Court is read, it

becomes amply clear that it has re-appreciated the

evidence in a proper perspective. The appellate

Court has pointed out the errors committed by the

Magistrate for acquitting the petitioners. In fact,

DW1 has very well admitted in his cross

examination that he himself filled the cheques in

question. The defence theory has no basis at all.

All these aspects have been noticed by the :: 10 ::

appellate Court for convicting the petitioners. In

the revision petition, there is no scope for

interfering with the judgment of the appellate

Court, if it is found the appellate Court has re-

appreciated the evidence. Hence, he argued for

dismissing the revision petition.

7. I have considered the arguments.

8. Firstly, it is to be stated that in a

revision petition against the judgment of the

appellate Court, there is no scope for

reappreciation of evidence. Even if there is any

error in reappreciation of evidence by the

appellate Court it shall not be interfered with,

unless perversity in appreciation of evidence is

made out.

9. Now, if the judgment of the trial Court is

perused, what glaringly appears is that, it has

extracted some answers of PW1 for disbelieving

the entire case of the respondent/complainant.

:: 11 ::

The case of the respondent is that the petitioners

issued cheques in question for repaying part of

liability in relation to purchase of electronic items

from the respondent. The defence is that the

second petitioner issued cheques to the husband

of the respondent as the former had taken hand

loan from the latter. It is held by the trial Court

that the cheques as per Ex.P.1 and P.2 were not

issued subsequent to purchase order dated

19.02.2009 and therefore Ex.P.1 and 2 could not

have been issued in relation to transaction

depicted in Ex.P.9 to P.18. It has held that PW1

has given admission that accused issued cheques

to her husband in connection with hand loan and

that Ex.P1 and P2 indicate that they were not

written by the accused. The contents of the

cheques very well indicate that probably the

cheques were not written by the second petitioner

and that they appear to have been written in

different inks. The trial Court has also relied upon :: 12 ::

another admission of PW1 that accused No.2 i.e.,

the petitioner No.2 did not have business

transaction with her. Relying upon these answers,

the trial Court is of the opinion that blank cheques

issued by petitioner No.2 in connection with hand

loan might have been misused. These are the

main reasons assigned by the trial Court for

acquitting the petitioners.

10. If the judgment of the appellate Court is

seen, it becomes very clear that it has re-

appreciated the evidence as a whole. It has

considered not only Ex.P.1 and P.2, cheques in

question, but also Ex.P.9 to P.18. The appellate

Court has held that Ex.P.9 to P.18 clearly indicate

that the petitioners placed orders for supply of

electronic items on 19.03.2009 and that the

invoices were raised subsequently on different

dates. Placing of orders on 19.03.2009 is found in

the invoices marked as per Ex.P.9 to P.13.

:: 13 ::

Considering P.14 to P18, the appellate Court has

come to conclusion that the petitioners

acknowledged the receipt of goods. Therefore,

placing reliance on Ex.P.9 to P.18, it is the

conclusion of the appellate Court that the

petitioners were in due in a certain sum of money

for having purchased the electronic items from the

respondent.

11. The appellate court has clearly held that

the trial Court has given importance for stray

answers given by PW1 in the cross examination

instead of appreciating entire oral evidence of PW1

as a whole.

12. Having re-appreciated the evidence, if

the appellate Court were to come to conclusion

that the respondent was able to prove her case

that the petitioners issued cheques, Ex.P.1 and

P.2, for discharging their liability in connection

with purchase of electronic items and if these :: 14 ::

cheques were dishonored for want of sufficient

funds in the account of the petitioners, an offence

under Section 138 of N.I.Act had been committed.

It cannot be said that the appellate Court has

erred in coming to such conclusion.

13. If the entire case is seen, it appears that

the Magistrate has not appreciated the evidence

properly; perversity in appreciation can be clearly

seen. Stray answers given by PW1 in the cross

examination have been taken into consideration

ignoring the other answers that PW1 had given.

For example, the trial Court has extracted an

answer given by PW1 that the cheques Ex.P.1 and

P.2 were given by the accused to her husband in

connection with the hand loan. But the Magistrate

has ignored, the voluntary answer given by PW1

that Ex.P.1 and P.2 were not given in relation to

hand loan, but in relation to supply of electronic

items. The Magistrate has relied upon another :: 15 ::

answer of PW1 that accused No.2 is not having any

business transaction with her. This answer has

been given much importance, without

understanding the meaning in it. PW1 intended to

say by giving this answer that accused No.2 did

not have any business transaction with the

respondent, i.e., the complainant personally,

because her case is that accused No.2 purchased

goods from her proprietary concern. The

Magistrate has assigned another reason that the

cheques in question were filled up by the

respondent/complainant. It may be noticed here

the answer given by DW1 i.e., the second

petitioner has been ignored by the Magistrate in

the examination in chief itself. DW1 has clearly

stated that he filled the cheqeus Ex.P.1 and P.2.

Therefore a clear conclusion can be drawn that the

trial Court has not appreciated the evidence

properly to acquit the petitioners. The appellate

Court, having noticed all the infirmities in the :: 16 ::

judgment of the Magistrate, appears to have come

to right conclusion to reverse the judgment of the

Magistrate. Therefore I do not find any good

ground to interfere with the well reasoned

judgment of the appellate Court. Even if the

sentence imposed by the appellate Court is seen,

the petitioners have been adequately sentenced.

There is no need to interfere in the sentence part

also. In the result, revision petition fails and it is

dismissed.

Sd/-

JUDGE

Kmv/-