Karnataka High Court

S Joseph vs E Shankar on 29 March, 2022

Bench: H.P.Sandesh

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 29TH DAY OF MARCH, 2022

                           BEFORE

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

          CRIMINAL REVISION PETITION NO.937/2013
                           C/W.
          CRIMINAL REVISION PETITION NO.861/2013

IN CRIMINAL REVISION PETITION NO.937/2013:

BETWEEN:

S. JOSEPH,
S/O SWAMI KANNU,
R/AT A1:98, FAHIM APARTMENT,
SHANTHI NAGAR, ANNA NAGAR,
CHENNAI-600040.                                  ...PETITIONER

            (BY SRI AKARSH S. KANADE, ADVOCATE)

AND:

E. SHANKAR,
S/O EREGOWDA,
R/AT HULLENAHALLI VILLAGE,
DUDDA HOBLI,
MANDYA TALUK-571401.                            ...RESPONDENT

                 (BY SRI C.N. RAJU, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
AND CONVICTION ORDER DATED 4.7.2013 PASSED BY THE II
ADDL. DIST. AND S.J., MANDYA IN CRL.R.P.NO.2/2013 AND ORDER
DATED 8.8.2012 PASSED BY THE J.M.F.C., MANDYA IN
C.C.NO.410/2007 AND ACQUIT THE APPELLANT FROM THE CHARGE
BY ALLOWING THIS R.P. WITH COSTS THROUGHOUT.
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IN CRIMINAL REVISION PETITION NO.861/2013:

BETWEEN:

S. JOSEPH,
S/O SWAMI KANNU,
R/AT A1:98, FAHIM APARTMENT,
SHANTHI NAGAR, ANNA NAGAR,
CHENNAI-600040.                                          ...PETITIONER

            (BY SRI AKARSH S. KANADE, ADVOCATE)

AND:

E. SHANKAR,
S/O EREGOWDA,
R/AT HULLENAHALLI VILLAGE,
DUDDA HOBLI,
MANDYA TALUK -571401.                                ...RESPONDENT

                 (BY SRI C.N. RAJU, ADVOCATE)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT
AND CONVICTION ORDER DATED 8.8.2012 PASSED BY THE
J.M.F.C., MANDYA IN C.C.NO.410/2007 AND ORDER DATED
04.07.2013 PASSED BY THE II ADDL. DIST. AND S.J., MANDYA IN
CRL.A.127/2012 AND ACQUIT THE PETITIONER FROM THE CHAREG
OF ALLOWING THIS PETITION WITH COSTS THROUGHOUT.

     THESE CRIMINAL REVISION PETITIONS COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                            ORDER

Heard the learned counsel for the petitioner and the

learned counsel for the respondent.

2. These two petitions are filed by the accused

challenging the judgment of dismissal of Crl.A.No.127/2012 and

allowing of Crl.R.P.No.02/2013 confirming the conviction and

enhancing the fine amount.

3. The factual matrix of the case of the

complainant/respondent is that both the complainant and the

accused are known to each other and have entered into an

agreement on 01.12.2005, for granite business and the

complainant had to advance an amount of Rs.6,00,000/- to the

accused and accordingly the accused received an amount of

Rs.4,00,000/- i.e., Rs.3,00,000/- on 25.11.2005 and

Rs.1,00,000/- on 05.12.2005 and the balance advance amount

of Rs.2,00,000/- had to be paid within 45 days from the date of

agreement. As per the agreement, the accused had to obtain

the permit and he failed to get the permit from the department

for transportation of the granite. But due to non-cooperation, the

complainant had stopped the quarry operation and informed the

same to the accused and accordingly both of them have

cancelled the quarry agreement. With regard to repayment of

the advance amount, the accused had issued the subject matter

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

dishonoured with an endorsement "funds insufficient" and hence

the legal notice was issued calling upon the accused to comply

with the demand. The accused failed to pay the amount and

gave untenable reply and hence the complainant filed the case

and the Trial Court took the cognizance and thereafter secured

the petitioner herein. The complainant in support of his

contentions examined himself as P.W.1 and got marked the

documents at Exs.P.1 to 10. After the 313 statement of the

petitioner, he examined himself as D.W.1 and examined another

witness as D.W.2 and got marked the documents at Exs.D.1 to

2(a). The Trial Court after considering both oral and

documentary evidence placed on record, convicted the petitioner

for the offence punishable under Section 138 of the Negotiable

Instruments Act ('NI Act' for short) and sentenced to pay fine of

Rs.3,50,000/- and in default, to undergo simple imprisonment

for a period of six months.

4. Being aggrieved by the judgment of conviction and

sentence, both the accused as well as the complainant filed

Crl.A.No.127/2012 and Crl.R.P.No.02/2013, respectively. The

learned Sessions Judge after considering both oral and

documentary evidence placed on record, dismissed the appeal

filed by the accused/petitioner and allowed the criminal revision

petition filed by the complainant/respondent enhancing the fine

amount to Rs.5,25,000/- from Rs.3,50,000/-. Hence, these two

petitions are filed by the accused before this Court.

5. The main contention of the learned counsel for the

petitioner before this Court is that both the Courts have

committed an error in coming to the conclusion that there was a

liability on the part of the petitioner. It is contended that the

complainant has taken the blank signed cheque from the

petitioner, which is in dispute, as security having paid the

advance amount of Rs.4,00,000/- at the time of execution of the

agreement. The same has been misused inspite of he has

received the amount of Rs.3,50,000/- and the counsel would

submit that the complainant had sent his Manager one Mr.Muthu

to collect the amount from the petitioner. As per the terms of

the agreement, the petitioner deducted an amount of

Rs.50,000/- towards minimum royalty that is to be paid by the

complainant to the petitioner. The complainant had instructed

the petitioner through phone that he has sent Muthu and the

petitioner may pay Rs.3,50,000/- and take the receipt from him

and accordingly an amount of Rs.2,50,000/- was paid on

26.03.2006 to the said Muthu. The learned counsel submits that

on 05.05.2006, the complainant came to the petitioner's place

with the original agreement and returned it to the petitioner

after collecting the balance amount of Rs.1,00,000/- and there

was an endorsement on the last page for having paid an amount

of Rs.1,00,000/-. Both the Courts have failed to take note of

this aspect while considering the material on record. Hence, the

learned counsel submits that it requires interference of this

Court.

6. Per contra, the learned counsel for the

respondent/complainant would submit that it is not in dispute

that there was an agreement and the same was cancelled. The

petitioner also admits the issuance of the cheque Ex.P.2 and

though he contend that he made the payment through Muthu,

he has not been examined and the document Ex.P.2 has not

been proved. The learned counsel would submit that the

endorsement on Ex.D.1 for having received Rs.1,00,000/- on

05.05.2006, is not disputed but he contends that the said

payment was made with regard to the remaining quarry, which

was lying and towards that amount, the same was received.

The learned counsel submits that the Trial Court as well as the

Appellate Court have taken note of this aspect and rightly

considered the material on record. The learned counsel submits

that the Appellate Court taking note of the material on record

only enhanced the fine amount and hence it does not require

interference of this Court.

7. 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 the Trial Court has committed an error in convicting the petitioner for the offence punishable under Section 138 of the NI Act and sentencing to pay fine of Rs.3,50,000/-?

(ii) Whether the Appellate Court has committed an error in dismissing the appeal and allowing the revision petition and enhancing the fine amount to Rs.5,25,000/-?

(iii) Whether this Court can exercise the revisional jurisdiction in coming to the conclusion that the Trial Court has committed an error in appreciating the material on record and the Appellate Court has committed an error in dismissing the appeal filed by the petitioner and allowing the revision petition filed by the respondent?

    (iv)    What order?




Point Nos.(i) to (iii):

8. Having heard the respective learned counsel and also

on perusal of the material available on record, there is no

dispute with regard to the fact that both the petitioner and the

respondent had entered into an agreement on 01.12.2005 for

granite business. It is also not in dispute that an amount of

Rs.4,00,000/- was paid by the complainant and the remaining

amount of Rs.2,00,000/- was not paid as agreed in terms of the

agreement. It is important to note that when the permission

was not given, the petitioner was not able to get the permission

and hence the agreement was cancelled. It is not in dispute

that the document Ex.D.1 is the document of agreement and the

same is cancelled in terms of the endorsement made in the over-

leaf of page No.7. The petitioner admits that the contents of

cancellation of the agreement is in his handwriting and also it is

categorically mentioned that the matter has been settled fully for

an amount of Rs.3,50,000/- and also admitted that he issued the

cheque on 20.02.2006 in favour of Sri E.Shankar/complainant.

The cheque number is also mentioned. The petitioner also not

disputes the fact of issuance of the said cheque, which is marked

as Ex.P.2. But the defence of the petitioner is that an amount of

Rs.2,50,000/- was paid in favour of one Muthu, who is the

Manager of the respondent. But in the cross-examination of

P.W.1, he categorically denied with regard to the employment of

Muthu. No doubt, the petitioner has examined one witness as

D.W.2 regarding he is a witness to the said document, but the

very execution of the document has to be proved by examining

the said Muthu. The said Muthu has not been examined before

the Trial Court and hence the Trial Court also not accepted the

defence of the petitioner for having paid an amount of

Rs.2,50,000/-. The evidence of D.W.2 is not accepted in view of

not proving of the document Ex.P.2. No doubt, there is an

endorsement on the said document below the shara of issuance

of the cheque for Rs.3,50,000/- in favour of the complainant.

The complainant also not disputes the endorsement i.e., he has

received an amount of Rs.1,00,000/- on 05.05.2006. It has to

be noted that the subject matter of the cheque was dated

20.02.2006 and subsequent payment of Rs.1,00,000/- was

made on 05.05.2006. But the counsel would submit that the

said payment is towards the pending quarry, which was sold and

adjusted towards the same and the said contention cannot be

accepted for the reason that the settlement was arrived between

the parties in view of the endorsement on 20.02.2006 and the

payment is made subsequent to 05.05.2006. When the

settlement was arrived between the parties in the month of

February 2006, the question of adjusting the amount in the

month of May 2006 cannot be accepted. The very contention of

the petitioner is that the cheque was not returned even though

entire payment was made.

9. I have already pointed out that the payment made in

favour of the complainant through Muthu has not been proved.

It is important to note that in the cross-examination, D.W.1 has

categorically admitted the document Ex.P.10, which was

confronted during his cross-examination, wherein

acknowledgment is made with regard to the issuance of cheque

for an amount of Rs.3,50,000/-. The Trial Court while passing

the order, on appreciation of the material on record, though

discussed in detail in paragraph No.13 regarding agreement, the

document Ex.D.2 and also cross-examination and issuance of

cheque for an amount of Rs.3,50,000/-, not accepted the

evidence of D.W.2 regarding payment of Rs.2,50,000/-. But

failed to take note of the endorsement made by the

respondent/complainant for having received an amount of

Rs.1,00,000/- on 05.05.2006 subsequent to the cancellation of

the agreement after four months. The Appellate Court while

confirming the order of the Trial Court though discussed in

detail, not accepted the defence theory of the petitioner and in

paragraph No.17 comes to the conclusion that the accused has

issued a cheque in favour of the complainant for returning of the

advance amount. It was presented by the complainant through

his advocate and it was returned for insufficient funds and

inspite of demand notice, he has failed to pay the amount. The

Appellate Court in paragraph No.18 of the judgment comes to

the conclusion that the learned Magistrate has appreciated both

oral and documentary evidence on record in proper, legal

manner and reached to the correct conclusion and there is no

illegality or irregularity. But, both the Courts failed to take note

of the fact that D.W.1 in his cross-examination says that he

made the payment of Rs.1,00,000/- in favour of the counsel for

the complainant and the advocate kept the amount in his scooter

and without returning the cheque, he ran away from the spot

and he also admits the shara in Ex.D.1. No complaint is filed

against the counsel for the complainant when he has received

Rs.1,00,000/- and he ran away from the spot. It is only a oral

evidence and no material is placed for having paid the amount to

the learned counsel for the complainant to the tune of

Rs.1,00,000/-.

10. It is important to note that in the cross-examination

of D.W.1, a suggestion was made by the counsel for the

complainant that he sold the quarry worth of Rs.1,50,000/- and

out of Rs.1,50,000/-, he retained the royalty amount of

Rs.50,000/- and paid the amount of Rs.1,00,000/- on

05.05.2006 in terms of endorsement made in Ex.D.1 and the

said suggestion is denied. I have already pointed out that

though such defence was set out in the cross-examination of

D.W.1, the same is not proved. When the transaction was

completed in the month of February 2006, the question of selling

the quarry and adjusting towards the royalty and making the

payment cannot be accepted. There is an endorsement with

regard to having made the payment of Rs.1,00,000/-. It has to

be noted that it is the transaction of the year 2005 and the Trial

Court while awarding penalty amount is concerned, only

awarded the cheque amount. I have already pointed out that for

having paid Rs.1,00,000/- is not given any deduction since the

payment is subsequent to the issuance of the subject matter of

the cheque and the Appellate Court also failed to take note of

this aspect. When such being the material available on record,

the Appellate Court committed an error in entertaining the

revision petition and enhancing the fine amount to

Rs.5,25,000/-. But, I do not find any ground to acquit the

petitioner as contended by the learned counsel for the petitioner

and the very contention that both the Courts have committed an

error also cannot be accepted. Having taken note of the

transaction between the parties, though the petitioner contend

that an amount of Rs.2,50,000/- was paid in favour of one

Muthu, the same has not been proved by examining Muthu and

hence I do not find any merit in the revision petition filed by the

revision petitioner with regard to conviction and sentence

against the Trial Court judgment. But, there is a force in the

contention of the learned counsel for the petitioner with regard

to Crl.R.P.No.02/2013 is concerned, wherein the Revision Court

enhanced the fine amount to Rs.5,25,000/- and it requires

interference of this Court since the Appellate Court has not taken

note of the payment of Rs.1,00,000/- as discussed. Hence, I

answer point Nos.(i) to (iii) accordingly.

Point No.(iv):

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

following:

ORDER

(i) Crl.R.P.No.861/2013 is dismissed.

(ii) The judgment of conviction passed by the Trial Court dated 08.08.2021 in C.C.No.410/2007 is upheld and the enhancement of fine amount by the Appellate Court dated 04.07.2013 in Crl.R.P.02/2013 is hereby set aside.