Violet Menezes vs Sri Sannanayaka
2022 Latest Caselaw 3685 Kant

                           1




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 04TH DAY OF MARCH, 2022

                        BEFORE

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

   CRIMINAL REVISION PETITION NO.260/2013


BETWEEN:

VIOLET MENEZES,
W/O DR. J.S. WILLIAM MENEZES,
AGED 65 YEARS,
R/O MEENAKSHI GARDEN RESORTS P. LTD.,
KETHALLI VIA SINDENHALLI,
BHOGADI-GADIGE ROAD,
HAMPAPURA HOBLI,
H.D.KOTE TALUK,
MYSORE DISTRICT-571 114
                                        ... PETITIONER
(BY SMT. ARCHANA K.M., ADVOCATE - AMICUS CURIAE)


AND:

SRI SANNANAYAKA
S/O LATE KANTHANAYAKA,
AGED ABOUT 47 YEARS,
R/O GUMUCHANAHALLY VILLAGE,
JAYAPURA HOBLI,
MYSORE-570 001.
                                       ... RESPONDENT
(BY SRI ABUBACKER SHAFI, ADVOCATE APPEARING
THROUGH VIDEO CONFERENCING)

       THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 3947 R/W 401 CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT DATED 16.02.2013 PASSED BY THE VI
ADDL. S.J., MYSORE IN CRL. A.NO.162/2012 AND SET
                           2




ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 29.O8.2012 PASSED BY THE PRL. I C.J. & J.M.F.C.,
MYSORE IN C.C. NO.2364/2010 AND ETC.,


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


                       ORDER

Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent.

2. The factual matrix of the case is that, the

son of the complainant by name Kantharaju who is

aged about 19 years was working as a coolie under the

accused since one year in her form house namely

Meenakshi Garden Resorts Private Limited, Kethahalli,

H.D.Kote Taluk. On 05.09.2009 at about 8.00 am., the

complainant's son died inside the form house of the

accused due to electric shock. The accused had

unauthorizedly given electric connection in order to

protect crops from wild animals. As a result, the

complainant gave a complaint and the police registered

the case for the offences punishable under Section 304

of IPC r/w Sections 39, 44 and 135 of Indian Electricity

Act against the petitioner in Crime No.249/2009. On

the spot, the accused had agreed to pay compensation

of Rs.3,50,000/- and paid cash of Rs.15,000/- to the

complainant and the accused in all issued four cheques

to the complainant. Out of the said four cheques, two

cheques were encashed by the complainant and

received Rs.1,00,000/-. When remaining cheques were

presented for encashment, those cheques were

dishonoured on the ground of "funds insufficient".

Immediately, the complainant contacted the accused

and the accused requested the complainant to present

the said cheques in the last week of December, 2009.

Accordingly, when two cheques were presented, the

said cheques were dishonoured with endorsement

"payment was stopped by the drawer". Hence, legal

notice was issued and even after issuance of legal

notice, the accused did not repay the amount. Hence,

the complaint was filed, took cognizance and the

complainant himself was examined as P.W.1 and got

marked the documents at Exs.P.1 to P.10. The

accused/petitioner herein was examined as D.W.1 and

examined two more witnesses as D.W.2 and D.W.3 and

got marked the documents at Exs.D.1 to D.6.

3. The trial Court after considering the

material on record has convicted the accused for the

offence punishable under Section 138 of Negotiable

Instruments Act, 1881 and ordered to pay fine of

Rs.3,75,000/- and out of fine amount, Rs.3,70,000/-

was ordered to pay to the complainant and Rs.5,000/-

was ordered to adjust towards the expenses of the

State. Being aggrieved by the said judgment of

conviction and order of sentence, Crl.A.No.162/2012

was preferred before the Appellate Court. The

Appellate Court on re-appreciation of both oral and

documentary evidence has allowed the appeal-in-part

and ordered to pay fine of Rs.3,00,000/- and out of

fine amount, Rs.2,95,000/- was ordered to be paid to

the complainant and remaining Rs.5,000/- was ordered

to be paid towards the expenses of State. Being

aggrieved by the said order, the present revision

petition is filed before this Court.

4. Learned counsel appearing for the petitioner

has vehemently contended that first of all there is no

debt or liability and the same is also not legally

enforceable amount. The learned counsel further

submitted that these cheques were issued only on

behalf of Shama Rao who is having lease hold rights in

respect of the property, in which, electricity connection

was taken and already made part payment. Hence, this

petitioner is not liable to pay the amount.

5. The learned counsel further submits that

there is a presumption under Section 139 of N.I.Act

and the petitioner has rebutted the evidence of P.W.1

as well as in the witness evidence. Hence, the

petitioner is not liable to pay any amount.

6. Per contra, learned counsel appearing for

the respondent would submit that it is not in dispute

that the respondent has agreed to pay an amount of

Rs.3,50,000/- and part payment was made. Hence, the

very contention of petitioner's counsel that there is no

privity of contract cannot be accepted. The learned

counsel also submitted that apart from cash payment,

two cheques were also honourned and now, the

petitioner cannot contend that there is no liability on

the part of the petitioner.

7. Having heard the respective counsel and on

perusal of the material available on record, the points

that arise for consideration are as under:

(i) Whether the trial Court has committed an error in convicting the accused for the offence punishable under Section 138 of N.I.ACT and directing him to pay an amount of Rs.3,75,000/- and whether it requires interference by this Court.

(ii) Whether the Appellate Court has committed an error in partly allowing the appeal and reducing the amount instead of acquitting as contended by the petitioner?

(iii) What order?

8. Having heard the respective counsel and

also taking into note of the fact that the complainant's

son died in the form house belonging to the present

petitioner and also admitted to pay an amount of

Rs.3,50,000/- and out of that, an amount of

Rs.15,000/- was paid in cash and another

Rs.1,00,000/- by way of two cheques was also paid.

The remaining amount of Rs.2,00,000/- was not paid

and when the cheques were presented, instruction was

given to stop the payment. The respondent has also

relied upon the documents Exs.D.1 to D.6. It is the

case of the petitioner herein also that the property was

leased in favour of Sham Rao Gunjigaiah and to that

effect, no document is placed before the trial Court

though relied upon the documents Exs.D.1 to D.6. The

fact that the remaining cheques are not encashed is

also not in dispute, but not denied the very death of

the complainant's son and agreed to pay an amount.

The only contention that as on the date of death of the

complainant's son, the lease hold rights were created

in favour of Sham Rao Gunjigaiah and to substantiate

the same, no material is placed before the court and

apart from the cheques issued by the petitioner

herself, already two cheques are honored. Hence, the

very contention is that there is no privity of contract as

contended by the petitioner cannot be accepted. The

petitioner has already made part payment. Such being

the case, the very contention of the learned counsel for

the petitioner that the petitioner is not liable to pay

any amount cannot be accepted.

9. The other contention of the learned counsel

appearing for the petitioner is that both the courts

below have not considered the material on record and

passed the perverse order cannot be accepted. The

other contention of the petitioner's counsel that the

amount determined by both the courts below are on

the higher side. The said contention cannot be

accepted for the reason that the trial Court has ordered

to pay an amount of Rs.3,75,000/- and the Appellate

Court has discussed in detail in paragraph No.36

regarding earlier payment as well as dishonour of

cheques and ordered to pay an amount of

Rs.3,00,000/- considering the aspect that about 2½

years have elapsed after issuance of cheques. The

Appellate Court has modified the earlier order and

restricted to Rs.3,00,000/-. Hence, the Appellate Court

has also exercised jurisdiction taking into note of

period of pendency of the matter and the matter is also

pending from the year 2010. Such being the fact, this

Court cannot find fault with the orders passed by both

the courts below. Hence, I answer Point Nos.1 and 2 in

negative.

10. In order to invoke Section 397 r/w 401 of

Cr.P.C., there must be perversity in the order and the

same is not shown. Both the courts below have

considered the material available on record and also

defence urged by the petitioner herein. When such

being the factual aspect, it is not a fit case to exercise

the revisional jurisdiction under Section 397 r/w 401 of

Cr.P.C. In view of the discussions made above, I pass

the following

ORDER

Criminal revision petition is dismissed.

The amount in deposit is ordered to be paid to

the respondent on proper identification.

The registry is directed to pay the charges of the

Amicus Curiae in favour of the Amicus Curiae forthwith.

Sd/-

JUDGE

PB