Karnataka High Court
M/S Biorad Medisys Pvt Ltd vs Progressive Health Care on 13 January, 2022
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL REVISION PETITION NO.1408/2015
BETWEEN:
M/S. BIORAD MEDISYS PVT. LTD.,
NO.660, 1ST AND 2ND FLOOR
ESHWARI INDUSTRIAL ESTATE
HULIMAVU, BANNERGHATTA ROAD
BENGALURU - 76
REPRESENTED BY ITS GENERAL MANAGER
SRI. P.P.BABU
...PETITIONER
(BY SRI.N.M.DAMODAR, ADVOCATE)
AND:
1. PROGRESSIVE HEALTH CARE
NO.379/10, RAGHAVENDRA LAYOUT
HULIMAVU MAIN ROAD
BENGALURU - 560 076
REP. BY ITS PROPRIETOR MR.JOHN.
2. MR.JOHN
PROPRIETOR
PROGRESSIVE HEALTH CARE
NO.379/10, RAGHAVENDRA LAYOUT
HULIMAVU MAIN ROAD
BENGALURU - 560076. ...RESPONDENTS
(BY SRI. R.CHANDRASHEKAR, ADVOCATE)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING TO MODIFY THE JUDGMENT DATED 13.10.2015 IN
CRL.A.NO.241/2015, PASSED BY THE LEARNED LIX ADDL. CITY
CIVIL AND S.J., BENGALURU CITY AND CONSEQUENTLY
CONFIRM THE JUDGMENT AND ORDER DATED 15.11.2014 IN
C.C.NO.4955/2013 PASSED BY THE LEARNED MAGISTRATE
XXVII ADDL.C.M.M. BENGALURU.
2
THIS CRL.R.P. COMING ON FOR FINAL HEARING
THROUGH VIDEO CONFERENCE, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Heard learned counsel for the petitioner.
2. This revision petition arises out of the
Judgment passed by the learned LIX Addl. City Civil and
Sessions Judge, Bengaluru City in Criminal Appeal
No.241/2015 dated 13.10.2015, wherein the learned
Sessions Judge confirmed the findings of the trial Court
convicting the accused for the offences punishable under
Section 138 of Negotiable Instrument Act, 1881
(hereinafter referred to as 'NI Act') but modified the
sentence by setting aside the sentence of imprisonment
and also modified the fine amount to the tune of
`6,00,000/- (Rupees Six lakhs only) instead of
`11,46,188/- (Rupees Eleven lakhs forty six thousand one
hundred eighty eight only) imposed by trial Court i.e., by
the XXVII Addl. Chief Metropolitan Magistrate, Bengaluru
city in C.C.No.4955/2013, dated 15.11.2014.
3. Revision petitioner was the complainant and
respondent Nos.1 & 2 were accused Nos.1 and 2 before
the trial Court. The parties will be referred to as per their
respective ranks before the trial Court, for sake of
convenience.
4. Brief case of the complaint is that the
complainant supplied medical surgical devices to the
accused-Progressive Health Care, Bengaluru and in this
regard, the accused through its proprietor, had issued
cheque bearing Nos.020830, 020831 and 020832 for
`1,50,000/- (Rupees One lakh fifty thousand only),
`1,50,000/- (Rupees One lakh fifty thousand only) and
`2,73,094 (Rupees Two lakhs seventy three thousand
ninety four only) respectively drawn on Federal Bank Ltd.
All the cheques were dated 13.12.2022. Accordingly, the
complainant presented the said cheques to the Bank, but
they were dishonored and returned with an endorsement
'funds insufficient'. Immediately the complainant informed
the same to the accused and demanded for payment. The
accused though agreed to pay the amount, but postponed
the same and started giving evasive replies. Hence, the
complainant issued legal notice dated 28.01.2013 calling
upon the accused to pay the amount. Even after issuing
the legal notice, the accused failed to pay the cheque
amount. Therefore, the complainant filed a private
complaint against the accused alleging that the accused
has committed offence punishable under Section 138 of NI
Act, before the Magistrate Court.
5. The accused appeared before the Court after
issuance of summons. Thereafter, the complainant got
examined one Sri.P.P.Babu, General Manager as P.W.-1
and got marked 15 documents Ex.P-1 to P-15. The
accused Mr.John, Proprietor of Progressive Health Care,
got examined himself as D.W.-1, but has not produced any
documents on his behalf.
6. The learned trial Court Magistrate, after
hearing the arguments, convicted the accused for the
offences punishable under Section 138 of NI Act and
passed an order of sentence that the accused shall
undergo simple imprisonment for one year and to pay fine
of `11,46,188/- (Rupees Eleven lakhs forty six thousand
one hundred eighty eight only) out of that `11,00,000/-
(Rupees Eleven lakhs only) is ordered to be paid to the
complainant as compensation and remaining amount of
`46,188/- (Rupees Forty six thousand one hundred eighty
eight only) is ordered to be remitted to the State.
7. Aggrieved by the same, the accused preferred
criminal appeal before the learned Sessions Court. The
accused took-up a contention that defective goods were
supplied by the complainant and in fact, the complainant is
liable to pay more than 2 lakhs to the accused. Therefore,
they prayed to set aside the said conviction and order of
sentence. After hearing the arguments, learned Sessions
Judge confirmed the findings of the trial court regarding
conviction for the offence punishable under Section 138 of
NI Act by the accused but modified the sentence as stated
above. Aggrieved by the same, the complainant preferred
this revision petition.
8. Heard Sri.N.M.Damodar, learned counsel for
the petitioner. Respondent side no representation.
9. Learned counsel for the petitioner contends
that the order of modification of the sentence passed by
the learned Sessions Judge is contrary to law. Learned
sessions Judge ought to have awarded simple interest on
the amount as compensation to the complainant. The
order of modification is liable to be set aside. Learned
Sessions Judge has not taken into consideration the time
and amount spent for the litigation and modified the
sentence which needs to be set aside. With these main
contentions, learned counsel for the petitioner prayed to
set aside the modification order passed by the Sessions
Judge and restore and confirm the Judgment and order
dated 15.11.2014 passed by the XXVII Addl. Chief
Metropolitan Magistrate, Bengaluru city in
C.C.No.4955/2013 the learned counsel relied upon the
decision of the Apex Court reported in AIR 2015 in case of
Mainuddin Abdul Sattar Shaikh vs Vijay D Savli in
support of his case and prays to modify the order.
10. I have perused the revision petition contents
and also the Judgment of Sessions Court and trial Court. I
have perused the records of the case and also the decision
relied upon by the learned counsel for the petitioner.
11. From the above materials, the point that arise
for my consideration is:
"Whether the impugned order passed by
both courts are correct, legal and in conformity
with the settled principle regarding
appreciation of evidence in cases under
Section 138 of the Negotiable Instruments Act,
1881, which are popularly called as cheque
bounce cases?"
12. The respondents/accused have not challenged
the confirmation of findings of the appellate Court
regarding conviction for the offence punishable under
Section 138 of NI Act. It has attained finality. Though the
accused has not challenged the Judgment of the trial
Court, but contends before Sessions Court that they are
not liable to pay the said amount, the goods were
defective and in fact, it is the complainant who has to pay
`2,00,000/- (Rupees Two Lakhs only) to them. But, the
said contention was not accepted. The appellate Court
found that Ex-P-7 indicates that the accused used to
purchase goods from the complainant regularly and it is
found that the cheques were issued in respect of the goods
purchased. Though the accused have taken the contention
regarding the defective goods, but they have not proved
the same. So, the learned Sessions Judge has not
accepted that contention. Therefore, the learned Sessions
Judge came to the conclusion that accused were liable to
pay ` 5,95,000/- (Rupees Five lakhs ninety five thousand
only) to the complainant as per cheques in Ex.P-1, P-3 and
P-5. The learned Sessions Judge found that the sentence
of imprisonment and imposing fine of double amount will
be too harsh and it appears that in view of the contention
taken by the accused, learned Sessions Judge has modified
the sentence.
13. I have perused the decision of Mainuddin
Abdul Sattar Shaikh vs Vijay D Savli stated supra,
relied by the learned counsel for the revision petitioner. In
that case, the appellant had booked a flat at Khargar
Project proposed to be developed by M/s. Salvi
Infrastructure Pvt. Ltd., and he has paid through accused
the amount but that project did not materialise and only
after much persuasion, the cheque given in that
circumstance and considering the earlier decision of
R.Vijayan Vs. Baby, reported in AIR 2005, imposed
the said sentence and it is held that the directions to pay
the compensation by way of restitution in regard to the
loss of cheque should be practical and realistic which would
mean not only the payment of the cheque amount but
interest thereon at a reasonable rate.
14. So, this proposition cannot be disputed at all.
The Court has to keep in mind the facts of each and
impose the sentence.
15. In the present case, the records reveals that
the accused were regular customers of the complainant
and they used to supply medical surgical devices. The total
cheque amount was `5,73,094/- (Rupees Five lakhs
seventy three thousand ninety four only). It is also evident
from the evidence that, earlier also accused had
transaction and purchased goods to the tune of Rs.59 to
60 lakhs, which is evident from the cross-examination
evidence. The records indicate that the respondents have
not submitted any documents to show that the goods are
defective. However, learned Sessions Judge keeping in
mind the nature of transaction has imposed the said
sentence by modifying the amount and has awarded fine
amount of `6,00,000/- (Rupees Six lakhs only) in default,
directed the accused-proprietor to undergo simple
imprisonment for a period of six months. Out of the above
said fine amount of `5,95,000/- (Rupees Five lakhs Ninety
five thousand only) amount to be paid as compensation to
the complainant and the remaining `5,000/- (Rupees Five
thousand only) to the Government as fine.
16. Looking into the nature of transaction and the
value of the goods and the cheque amount, in my
considered view, the said modification order passed by the
learned Sessions Judge does not appear to be perverse or
illegal. On the other hand, whatever goods purchased by
the accused, goods supplied value has to be paid and
some extra amount has also to be paid. The same is
awarded as compensation in the order passed by the
Session Court i.e., in the year 2015 itself. Therefore, in
view of the peculiar facts and circumstances and the
nature of transactions and the fine amount, I do not find
any perversity in the order passed by the learned Sessions
Judge.
17. Therefore, the revision petition being devoid of
merits is liable to be dismissed. Accordingly, I pass the
following:
ORDER
i. The revision petition is dismissed.
ii. The Judgment dated 13.10.2015 in
Crl.A.No.241/2015, passed by the learned LIX Addl. City
Civil and Sessions Judge, Bengaluru city, is confirmed.
iii. Send back the records.
Sd/-
JUDGE
GVP
