P Premkumar vs M/S Venkateswara Hatcheries ...
2023 Latest Caselaw 5114 Kant

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                                  CRL.RP No. 1177 of 2015


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 01ST DAY OF AUGUST, 2023
                       BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO. 1177 OF 2015
BETWEEN:
P.PREMKUMAR
M/S. STAR BROILERS
VAIKAI STREET, MOOVENDAN NAGAR
NEAR ANNAI SAKAYAMATHA CHURCH
B.B.KULAM, MADURAI - 625 002.

                                             ...PETITIONER
(BY SRI. M SAHUL HAMED, ADVOCATE)

AND:
M/S. VENKATESWARA HATCHERIES PRIVATE
LIMITED
REPRESENTED BY ITS AUTHORIZED
REPRESENTATIVE AND POWER OF ATTORNEY
MANJESHKUMAR YADAV
NO:6, GANESH @ CHAMBERS, 3RD FLOOR
DODDA BANASWADI MAIN ROAD
NEAR RAMAMOORTHY NAGAR SIGNAL
BANASWADI POST
BANGALORE - 560 043.

                                           ...RESPONDENT
(BY SMT. SHILPA R, ADVOCATE FOR
    SRI. B.R.KRISHNA, ADVOCATE)

     THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401
CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND
SENTENCE IMPOSED ON HIM BY THE XIV ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, MAYO HALL UNIT, BANGALORE
BY MEANS OF A JUDGMENT DATED 14.12.2011 MADE IN
C.C.NO.34889/2009 AND SUBSEQUENTLY AS CONFRIMED BY
THE LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
MAYO HALL UNIT, BANGALORE, DATED 13.08.2015 MADE IN
CRL.A.NO.25001/2012 AND ETC.,
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                                          CRL.RP No. 1177 of 2015


     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 06.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:


                              ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the judgment of conviction and

order of sentence dated 14.12.2011 in C.C.No.34889/2009 on

the file of the Court of XIV Additional Chief Metropolitan

Magistrate, Bangalore and its confirmation judgment and order

dated 13.08.2015 in Crl.A.No.25001/2012 on the file of the

Court of the LVII Additional City Civil and Sessions Judge at

Mayo Hall Unit, Bangalore seeking to set aside the concurrent

findings recorded by the Courts below, wherein the petitioner /

accused is convicted for the offence punishable under Section

138 of Negotiable Instruments Act (for short 'N.I Act').

2. The petitioner is the accused before the Trial Court

and appellant before the Appellate Court.

Brief facts of the case are as under:

3. It is the case of the complainant that, the

complainant is a Company, which was doing the business of

rearing broiler chicken, developing and maintenance of chicks

upto the level adult chicken. The petitioner stated to have had

CRL.RP No. 1177 of 2015

a transactions with the respondent and as per the statement of

accounts, the petitioner was due for a sum of Rs.13,04,054/-.

To discharge the said liability, the petitioner herein stated to

have issued a cheque bearing No.126975 dated 10.11.2008

drawn on ICICI Bank Limited, Madurai for a sum of

Rs.13,04,054/-. When it was presented for encashment, it was

dishonoured with a shara as 'insufficient funds'. After

completing the formalities, a complaint had been filed by the

respondent before the jurisdictional Magistrate.

4. To prove the case of the complainant, the

complainant examined himself as PW.1 and got marked

Exhibits P1 to P547. On the other hand, the petitioner himself

examined as DW.1 and got marked Exs.D1 to D22. The Trial

Court after appreciating the oral and documentary evidence on

record, convicted the petitioner for the offence stated supra.

Being aggrieved by the same, the petitioner preferred an

appeal before the Appellate Court, the Appellate Court

confirmed the judgment of conviction rendered by the Trial

Court. Being aggrieved by the same, the petitioner has

preferred this revision petition seeking to set aside the

concurrent findings.

CRL.RP No. 1177 of 2015

5. Heard Shri M Sahul Hamed, learned counsel for the

petitioner and Smt Shilpa R, learned counsel appearing on

behalf of Shri B.R. Krishna, learned counsel for the respondent.

6. It is the submission of learned counsel for the

petitioner that, the judgment of conviction and order of

sentence passed by the Trial Court and its confirmation order

passed by the Appellate Court require to be set aside as the

concurrent findings are perverse, illegal and opposed to facts

and law.

7. It is further submitted that, the Courts below failed

to appreciate the evidence of DW.1 and the documents

properly. Even though, the payments were made in respect of

the transactions, the same were not considered by the Courts

below and convicted the petitioner, which is erroneous and

liable to be set aside.

8. It is further submitted that, the complainant/

respondent failed to prove that, there is a legally enforceable

debt or liability. The cheque which was issued as a collateral

security for the transaction was misused by the respondent

company and filed a false case against the petitioner, which is

CRL.RP No. 1177 of 2015

not maintainable and the concurrent findings in recording the

conviction are unsustainable.

9. It is further submitted that, even though the

transaction took place at Madurai, the respondent filed the case

at Bengaluru and even though the Courts are having no

jurisdiction to deal with the matter, the judgment of conviction

has been passed and the same has been confirmed by the

Appellate Court, which is beyond jurisdiction and the judgments

of the Courts below rendered non-est in law. Having submitted

thus, learned counsel for the petitioner seeks to allow the

revision petition and set aside the concurrent findings recorded

by both the Courts below.

10. Per contra, learned counsel for the respondent

justifying the concurrent findings and submits that, the

respondent has produced several documentary evidence for the

transactions that had taken place with the petitioner. As per

the statement of accounts, the petitioner was due for the

amount as mentioned in the cheque. Even though, the liability

of the petitioner is denied by him, issuance of the cheque,

signature has been admitted by the petitioner, hence, the

Courts below rightly convicted the petitioner.

CRL.RP No. 1177 of 2015

11. It is further submitted that, once the issuance of

the cheque and signature on the cheque is admitted by the

petitioner, it is presumed that, the said cheque was issued by

the petitioner for consideration. The petitioner examined

himself as DW.1 and produced certain documents to show that,

he had made part payment and also stated that, he has cleared

all the dues. When there is a contradiction in the evidence of

DW.1, the Court cannot accept the evidence of DW.1 as

accepted as true. Accordingly, the Courts below rightly

considered the contradiction and rejected the defence of the

petitioner. Since this Court is having a Revisional jurisdiction,

cannot go beyond its scope to appreciate both facts and law.

Having submitted thus, learned counsel for the respondent

prays to dismiss the petition.

12. Having heard the rival contentions urged by the

learned counsels for the respective parties and also perused the

judgments of the Courts below, the points which arise for my

consideration are:

i) Whether the concurrent findings recorded by

both the Courts below in convicting the petitioner

for the offence under Section 138 of N.I Act are

sustainable?

CRL.RP No. 1177 of 2015

ii) Whether the petitioner has made out

grounds to interfere with the concurrent findings

recorded by both the Courts below for conviction?

13. This Court being a Revisional Court, having regard

to the scope and ambit envisaged to appreciate the facts and

law, it is necessary to have a cursory look upon the evidence

and also the law, to ascertain as to whether any illegality or

perversity or error committed by the Courts below in recording

the conviction.

14. The case of the complainant/respondent is that, the

petitioner was doing transactions in his company and

purchasing the chicken for his business. In the said

transactions, there was a due of Rs.13,04,054/-. In lieu of

clearance of the due, the petitioner stated to have issued

cheque for the said amount. When the cheque was presented

for encashment, it was dishonoured as 'insufficient funds'.

Hence, this case.

15. The contention of the petitioner is that, the

respondent had failed to prove the legally enforceable debt or

liability and the documents, which were produced and marked

as Exs.D1 to D14 were not considered by the Courts below and

CRL.RP No. 1177 of 2015

further contended that, since the transactions have taken place

beyond the jurisdiction of the Trial Court and the Appellate

Court, Courts ought not to have dealt with in the matter.

16. As regards, the jurisdiction is concerned, even

though the petitioner contended that, the entire transactions

have taken place in Madurai, Tamilnadu, the petitioner had

produced certain documents to show that the respondent-

company is having Regional office at Bengaluru. Hence, the

contention raised in respect of jurisdiction is misconceived.

17. As regards, the legally enforceable debt or liability

is concerned, since both the Courts have concurrently held

that, the petitioner is found guilty of the offence punishable

under Section 138 of NI.Act after considering oral and

documentary evidence, this Court being a Court of Revision is

having limited scope in interference with the appreciation of

evidence both oral and documentary. However, on perusal of

Exs.P256 to P260 which pertains to the statement of accounts

in respect of the transactions that had taken place between the

petitioner and respondent-company indicates that, the

petitioner was due for a sum of Rs.13,04,054/-. Hence, the

petitioner fails to convince the Court on this ground to interfere

with the concurrent findings.

CRL.RP No. 1177 of 2015

18. So far as the contention of the petitioner in respect

of his documents were not considered by the Trial Court is

concerned, though DW.1 produced certain documents to show

that he made part payment for the transactions having been

made between him and the respondent, those documents were

confronted while cross-examining DW.1 and it was elicited that,

those documents pertains to some other transactions. Hence,

the petitioner failed to substantiate his contention in respect of

all the three grounds.

19. After having gone through the evidence of all the

witnesses and also perused the documents by way of cursory

look to arrive at a conclusion as to any error committed by the

Courts below in recording the conviction, I did not find any

error in the findings of the Courts below in recording the

conviction of the petitioner. Hence, I decline to interfere with

the reasoned order passed by the Courts below.

20. In the light of the observations made above, the

points which arose for my consideration are answered as

under:-

      Point No.(i)       - "Affirmative"

      Point No.(ii)      - "Negative"
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                                          CRL.RP No. 1177 of 2015

21. Hence, I proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is dismissed..

     (ii)       The   judgment     of    conviction   and   order   of

                sentence         dated          14.12.2011          in

C.C.No.34889/2009 on the file of the Court of

XIV Additional Chief Metropolitan Magistrate,

Bangalore and its confirmation judgment and

order dated 13.08.2015 in Crl.A.No.25001/2012

on the file of the Court of the LVII Additional City

Civil and Sessions Judge at Mayo Hall Unit,

Bangalore, are confirmed.

(iii) The Trial Court is directed to secure the presence

of the petitioner for execution of sentence in

accordance with law.

Sd/-

JUDGE

UN