Sri.Ramanath S/I Vinayakrao ... vs Sri.Mahalaxmi Enterprises By Its ...
2022 Latest Caselaw 751 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH
         DATED THIS THE 17TH DAY OF JANUARY, 2022
                         BEFORE
       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

        CRIMINAL REVISION PETITION No.100061/2018

BETWEEN:

1.   SRI.RAMANATH S/O VINAYAKRAO NAYAK,
     AGE:62 YEARS, OCC:ENGINEER,
     R/O:I FLOOR, VINAYAK COMPLEX,
     OPP TOWN HALL,
     J C NAGAR, HUBBALLI-32.
                                     ...PETITIONER
(BY SHRI SHIVASAI M.PATIL, ADVOCATE)

AND:

SRI.MAHALAXMI ENTERPRISES
BY ITS PARTNERS

1.     SRI BABURAO S/O HANUMANTARAO DESAI
       AGE:70 YEARS, OCC:BUSINESS,
       R/O CONTRACTORS COMPLEX,
       WOMEN COLLEGE ROAD,
       J C NAGAR, HUBBALLI 32.

2.   SMT.NALINI W/O NARAYANRAO DESAI,
      AGE:75 YEARS, OCC:BUSINESS,
      R/O CONTRACTORS COMPLEX,
      WOMEN COLLEGE ROAD,
      J C NAGAR, HUBBALLI 32.
                                  ...RESPONDENTS
(RESPONDENTS 1 AND 2 SERVED)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) R/W 401 OF CR.P.C., PRAYING TO CALL FOR THE
RECORDS AND SET ASIDE THE JUDGMENT OF TRIAL COURT IN
                               2




C.C.NO.2659/2013 PASSED BY THE COURT OF JMFC-I HUBBALLI,
DTD.17.10.2015 & CRL.APL.NO.121/2015 PASSED BY THE COURT
OF V ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING
AT HUBBALLI, DTD.12.01.2018.

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

                            ORDER

Accused has preferred this revision petition

against the concurrent findings recorded by the

Courts below, convicting and sentencing him for an

offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 (for short 'the

Act').

2. Heard the learned counsel for petitioner

and perused the material on record.

3. The trial Court has sentenced the

petitioner to pay fine of Rs.95,000/-, in default, to

undergo simple imprisonment for a period of

3 months. The same has been confirmed by the

Sessions Court in the appeal preferred by him.

4. Brief facts are that, complainant

M/s. Mahalaxmi Enterprises is a partnership concern,

represented by its partners namely Shri Baburao

Desai and Smt. Nalini Desai. The said firm is

running the business in selling building materials.

Accused, a Civil Engineer used to purchase building

materials from the complainant and building

materials worth Rs.73,425/- was supplied by the

complainant to the accused. Accused issued a

cheque dated 10.08.2013 bearing No.001138 drawn

on Union Bank, J. C. Nagar Branch, Hubballi,

towards discharge of his debt. When the

complainant presented the said cheque to his

banker, it came to be dishonoured for 'funds

insufficient' on 16.08.2013. In spite of issuance of

legal notice, accused failed to pay the amount

mentioned in the cheque within the stipulated time.

As such, he committed an offence punishable under

Section 138 of the NI Act.

5. Before the trial Court, complainant got

himself examined as P.W.1 and got marked Ex.P.1 to

Ex.P.12. Accused was examined as D.W.1 and he

got marked Ex.D.1 to Ex.D.3.

6. Defence of the accused was that he gave

cheque towards future supply of building materials.

Later, he got the required materials at a cheaper

price from one Meghana Enterprises and therefore,

asked complainant not to supply materials and to

return the cheque. But, complainant did not return

the cheque, on the other hand, misused it and filed

a false complaint.

7. In the cross-examination of accused/

DW-1, he admitted that he has not given any notice

to PW-1 to return the cheque nor he has given any

police complaint nor made any application to the

bank to stop payment. He has admitted that EX.D.2

produced by him is not the delivery note towards the

supply of materials made by Meghana Enterprises.

8. According to the defence taken by

accused, no building materials were supplied by the

complainant and bill book marked as Ex.P.11 is not

according to the new tax standards. It is contended

that cheque was issued towards future supply of

materials and since accused received the materials

at a cheaper price from another firm, he cancelled

the order placed with the complainant, but

complainant did not return the cheque. In support

of the defence taken by accused, he has produced

Ex.D.2 and Ex.D.3, said to be the price lists of one

Meghana Enterprises, but he has not produced any

materials to establish that infact said Meghana

Enterprises had supplied the building materials to

him.

9. Trial Court taking into consideration the

12 receipts at Ex.P.12 got marked by the

complainant and taking into consideration the

evidence adduced by him, held that he has

established that the cheque was issued by the

accused towards building materials purchased by

him.

10. Appellate Court has also considered the

evidence and material on record and after giving

reasons, confirmed the judgment and order of

conviction and sentence passed by the trial Court.

It is observed that complainant by producing VAT

Certificate (Ex.P.10), Bill Book (Ex.P.11), Receipt

Book (Ex.P.12) has rebutted the claim of accused. I

see no illegality in the concurrent findings recorded

by the Courts below. Hence, revision petition fails

and accordingly, it is dismissed.

Sd/-

JUDGE

Jm/Ssp/-