Sri Ganesh Acharya vs M/S Mysore Mercantile Co Ltd
2022 Latest Caselaw 3837 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 7TH DAY OF MARCH, 2022

                          BEFORE

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

          CRIMINAL REVISION PETITION NO.531/2015

BETWEEN:

SRI GANESH ACHARYA,
S/O RAVINDRA ACHARYA,
AGED ABOUT 35 YEARS,
R/AT SRI RAJ DISTRIBUTORS,
OPP DURGA DEVI TEMPLE,
DEVI MANE VILLAGE,
POST RAGI HOSAHALLI,
SIRSI TALUK.                                    ...PETITIONER

            (BY SRI NATARAJA BALLAL A, ADVOCATE)

AND:

M/S MYSORE MERCANTILE CO. LTD.,
A COMPANY HAVING REGISTERED
UNDER COMPANIES ACT,
HAVING ITS REGISTERED AND
HEAD OFFICE AT BANGALORE
INTERALIA HAVING ITS BRANCHES
AT PLOT NO.158 A & B,
BAIKAMPADY INDUSTRIAL AREA,
NEW MANGALORE-575011.
REP BY ITS MANAGER
& AUTHORIZED PERSON.                           ...RESPONDENT

               (BY SRI H. MUJTABA, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED 01.04.2015 PASSED BY THE I ADDL. DIST. AND S.J., D.K.,
MANGALORE IN CRL.A.NO.68/2012 AND DATED 09.02.2012
PASSED BY THE J.M.F.C. (IV COURT), MANGALORE IN
C.C.NO.3329/2008 AND TO ACQUIT THE PETITIONER.
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     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

Heard the learned counsel for the petitioner and the

learned counsel for the respondent.

2. The factual matrix of the case is that the

complainant is the Company dealing with edible oils and the

accused through his firm namely, Sri Raj Distributors has been

dealing with the complainant for the purpose of purchase of

edible oils on credit basis. As on 20.10.2006, the credit balance

in his account was Rs.1,62,783.95/-. Towards repayment of the

balance outstanding, the accused had issued the subject matter

of the cheque. When the same was presented, it was returned

with an endorsement "insufficient funds". Thereafter, the legal

notice was issued and no reply was given and in view of the non-

compliance of the demand, a private complaint was filed and

cognizance was taken. The complainant in order to prove his

case examined himself as P.W.1 and got marked the documents

at Exs.P.1 to 13. On the other hand, the accused/petitioner

herein examined himself as D.W.1 and got marked the

documents at Exs.D.1 to 5. The Trial Court after considering

both oral and documentary evidence placed on record, convicted

the accused and ordered to pay the fine of Rs.1,30,000/- and in

default to undergo simple imprisonment for a period of eight

months. Hence, an appeal was filed before the Appellate Court

in Crl.A.No.68/2012. On appreciation of both oral and

documentary evidence placed on record, the Appellate Court

dismissed the appeal. Hence, the present revision petition is

filed before this Court.

3. The main contention of the learned counsel for the

petitioner before this Court is that Ex.P.1 cheque was issued in

the year 2002 and on the said cheque, the date was mentioned,

but overwritten the year of the cheque was not considered by

both the Courts. However, both the Courts have relied upon

Exs.P.9 to 11 in coming to the conclusion that there was supply

of goods and the same is erroneous. The complainant also failed

to prove the exact amount due to him by producing proper

account extracts or the statement of accounts. The complainant

also not produced any iota of evidence. The complainant relied

upon Ex.P.9 and as per Ex.P.9, Rs.1,62,783.95/- is due, but

there was no any explanation forthcoming from the complainant

to show that why it had accepted the cheque for lesser amount.

The Trial Court not considered Exs.D.3 to 5. The Appellate Court

also failed to consider the matter i.e., both oral and

documentary evidence placed on record and committed an error

in confirming the judgment of the Trial Court and hence it

requires interference of this Court.

4. Per contra, the learned counsel for the

respondent/complainant would submit that with regard to

tampering of the document as contended by the learned counsel

for the petitioner, there is no cross-examination and for the first

time the said contention is raised. The contention of the

petitioner cannot be accepted regarding issuance of the cheque

to the tune of Rs.1,15,319.95/-. The learned counsel would

vehemently contend that balance was Rs.1,62,783.95/- and out

of that, subject matter of cheque was given and the same is

stated in the complaint as well as the affidavit of the witness and

hence both the Courts have not committed any error.

5. Having heard the learned counsel for the petitioner

and the learned counsel for the respondent and also on perusal

of the material on record, the points that arise for the

consideration of this Court are:

(i) Whether both the Courts have committed an error in not appreciating the defence of the

petitioner herein and whether the order passed by both the Courts suffer from legality and correctness and whether it requires interference of this Court by exercising the revisional jurisdiction?

(ii) What order?

Point No.(i):

6. Having heard the respective learned counsel and also

considering the material available on record, there is no dispute

with regard to the fact that there was an agreement between the

parties. It is important to note that this petitioner was working

as a distributor. The learned counsel admits that earlier when

there was an agreement between the parties, two cheques were

given and also subsequently one more agreement was entered

into is not in dispute. There is no dispute with regard to no

subsequent security cheques are given. The main contention of

the learned counsel for the petitioner is that on perusal of the

subject matter of the cheque, which is produced as Ex.P.1, it is

clear from the bare eyes that the cheque year was tampered. It

is rightly pointed out by the learned counsel for the respondent

that during the course of cross-examination, no suggestion was

made with regard to tampering and for the first time, the said

contention is taken in this revision petition. Unless, there is an

effective cross-examination with regard to tampering of the

cheque, for the first time in the revision petition the petitioner

cannot urge the said ground. Hence, the said contention cannot

be accepted.

7. The other contention of the learned counsel for the

petitioner is that though in terms of Ex.P.9, the balance was

more than Rs.1,62,783.95/-, there is no explanation on the part

of the petitioner for accepting the cheque for an amount of

Rs.1,15,319.95/-. On perusal of the complaint as well as the

affidavit, the respondent has given the details that due was

Rs.1,62,783.95/-. But the cheque was given for an amount of

Rs.1,15,319.95/-. The case of the complainant is clear that in

discharging the liability for an amount of Rs.1,62,783.95/-, the

subject matter of the cheque was issued hence the contention of

the petitioner's counsel cannot be accepted. Both the Courts

have considered the material on record, particularly Ex.P.1,

subject matter of the cheque and also taken note of the

relationship between the parties and Ex.P.9 statement is also

produced before the Trial Court and the same has been

considered and when there is no dispute with regard to the

cheque is concerned, the contention for the first time in the

revision that there was tampering of the cheque cannot be

accepted and the said document is also not sent for FSL

examination and apart from that, the said contention also not

raised before the Trial Court and hence I do not find any error

committed by the Trial Court and the Appellate Court. Both the

Courts have appreciated the evidence available on record. When

such being the factual aspects of the case, it is not a fit case to

exercise the discretion invoking the revisional jurisdiction, unless

the order suffers from any legality and correctness. Hence, the

petitioner has not made out any ground to invoke the revisional

jurisdiction. Hence I answer point No.(i) as negative.

Point No.(ii):

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

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

MD