M/S Darshan Management Company vs M/S Mopat Business Solutions Pvt
2023 Latest Caselaw 5219 Kant

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                                                      NC: 2023:KHC:27237
                                                      CRL.RP No. 1116 of 2015




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 3RD DAY OF AUGUST, 2023

                                           BEFORE
                       THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                       CRIMINAL REVISION PETITION NO. 1116 OF 2015
                   BETWEEN:

                   M/S DARSHAN MANAGEMENT COMPANY
                   NO.002, MANISHA MANSION III STREET,
                   KORAMANGALA, 2ND BLCOK,
                   BANGALORE-560 068,
                   REPRESENTED BY ITS PROPRIETOR,
                   SMT. ELIZABETH THOMAS
                   W/O MR. THOMAS THOMAS
                                                                 ...PETITIONER
                   (BY SMT. T.G. SUDHA, ADVOCATE)
                   AND:

                   M/S MOPAT BUSINESS SOLUTIONS PVT LTD.,
                   1ST FLOOR, NO.37, COLES ROAD,
                   FRAZER TOWN, BANGALORE-560 005,
                   REPRESENTED BY TIS MANAGING DIRECTOR,
                   SRI. T.M. VERGHESE, S/O LATE MAMMEN
                                                                ...RESPONDENT
Digitally signed   (BY SRI. M.A. HUMAYUN, ADVOCATE)
by RENUKAMBA             THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
KG                 TO (a) SET ASIDE THE CONVICTION AND SENTENCE PASSED
Location: High     AGAINST THE PETITIONER/ACCUSED ON 07.08.2013, IN
Court of           C.C.NO.26332/2011 PASSED BY THE XIV A.C.M.M., MAYOHALL
Karnataka          UNIT,    BANGALORE    (ANNEXURE-A)    AND   ACQUIT    THE
                   PETITIONER/ACCUSED FORM THE ALLEGED OFFENCE U/S 138 OF
                   N.I. ACT. (b) SET ASIDE THE JUDGMENT PASSED IN
                   CRL.A.NO.25108/2013, ON THE FILE OF LVII ADDL. CITY CIVIL
                   AND S.J., (CCH-58) MAYOHALL UNIT, BANGALORE DATED
                   23.09.2015 (ANNEXURE-B).

                       THIS PETITION COMING ON FOR HEARING THIS DAY, THE
                   COURT MADE THE FOLLOWING:
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                                   NC: 2023:KHC:27237
                                   CRL.RP No. 1116 of 2015




                          ORDER

This revision is filed by the petitioner/accused under

Section 397 r/w 401 of Cr.P.C. challenging the judgment

of conviction passed by the XIV ACMM, Bangalore in

CC.No.26332/2011 dated 07.08.2013 and confirmed by

LVII Additional City Civil and Sessions Judge, Mayo Hall

Unit, Bangalore in Crl.A.No.25108/2013.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are

that the complainant and accused are doing business of

software development i.e., property management

consultancy for overseas countries. As per instructions of

the accused, complainant has transferred a sum of

Rs.4,44,000/- to the person at Cameron in South Africa to

get an order and permission from the Countries and they

issued endorsement dated 08.03.2010. After receipt of the

same, accused failed to get any order or such business

NC: 2023:KHC:27237 CRL.RP No. 1116 of 2015

deals from the Abroad and when the complainant

demanded the said amount, on 15.03.2010 the accused

has issued a cheque bearing No.598155 for Rs.4,44,000/-

drawn on ABN-Amro Bank, Prestige Tower, Residency

road, Bangalore. When the said cheque was presented, it

was returned with an endorsement as 'funds insufficient'.

The complainant has issued the legal notice to the accused

and accused has replied the notice wherein she has

admitted her liability, but did not repay the cheque

amount. Hence, the complaint came to be lodged.

4. On the basis of the complaint, the learned

Magistrate has recorded the sworn statement and as he

found there are sufficient material to proceed against the

accused, he has issued process against the accused.

Accused has appeared and was enlarged on bail. She was

provided with prosecution papers. The plea for the offence

punishable under Section 138 of NI Act is framed against

her and same is read over and explained to the accused.

Accused pleaded not guilty and claimed to be tried.

NC: 2023:KHC:27237 CRL.RP No. 1116 of 2015

5. The complainant is examined as PW1 and

seventeen documents were marked at Exs.P1 to P17. After

conclusion of the evidence of the complainant, the

statement of accused under Section 313 Cr.P.C. was

recorded to enable the accused to explain the

incriminating evidence appearing against her in the case of

the prosecution. The case of the accused is of total denial.

The accused herself has got examined as DW1 and one

witness was examined on her behalf as DW2. Further, the

accused has also placed reliance on ten documents.

6. After hearing the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has convicted the accused for the

offence punishable under Section 138 of the NI Act and

sentenced her to undergo simple imprisonment for a

period of six months and further, directed to pay

compensation of Rs.5,25,000/- to the complainant and out

of it, is further directed that Rs.5,000/- shall be credited

as a fine to the State. Being aggrieved by this judgment,

NC: 2023:KHC:27237 CRL.RP No. 1116 of 2015

the accused has preferred an appeal before LVII Additional

City Civil & Sessions Judge, Mayohall, Bangalore in

Crl.A.No.25108/2013.

7. The learned Sessions Judge after re-

appreciating the oral as well as documentary evidence,

dismissed the appeal by confirming the judgment of

conviction and order of sentence passed by the Trial Court.

Being aggrieved by these concurrent findings, the accused

is before this Court by way of this revision.

8. Heard the arguments advanced by learned

counsel for the revision petitioner and learned counsel for

the respondent. Perused the records.

9. The learned counsel for revision petitioner

would contend that the cheque amount was not pertaining

to complainant, but it was a personal amount of Managing

Director. She has also asserted that there is no proper

authorization to prosecute the matter and both the Courts

below have failed to appreciate this aspect. Hence, she

would seek for allowing the petition by setting aside the

NC: 2023:KHC:27237 CRL.RP No. 1116 of 2015

impugned judgment of conviction and order of sentence

passed by both the Courts below.

10. Per contra, learned counsel for the

respondent/complainant contend that accused has

admitted entire liability in reply notice marked at Ex.P6

itself. Further, the authorization issued by the Managing

Director is produced and hence, he would contend that

arguments advanced would have no relevancy. He further

submits that both the Courts below have appreciated the

oral and documentary evidence in proper perspective and

revision petitioner has a limited option in the revision, but

no evidence is placed to show that any illegality,

perversity or infirmity is committed by trial Court while

appreciating the oral or documentary evidence. Hence, he

would seek for rejection of the petition.

11. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

NC: 2023:KHC:27237 CRL.RP No. 1116 of 2015

"Whether the judgment of conviction and order of sentence passed by the trial Court and affirmed by the first appellate Court are perverse, erroneous and arbitrary so as to call for any interference by this Court?"

12. It is specific contention of the complainant that

the complainant as well as accused are doing business of

software development i.e., property management and

consultancy for overseas countries i.e., USA, UK, Gulf and

other countries under the name and style of M/s. Mopat

Business Solutions. It is the specific assertion by the

complainant that as per the instructions of the accused,

complainant transferred a sum of Rs.4,44,000/- to person

at Cameron in south Africa to get an order and permission

from the countries and an endorsement dated 08.03.2010

was also issued. However, the accused has failed to get

any order or such business deals from Abroad and when

complainant demanded the amount, the accused has

issued the cheque dated 15.03.2010 for Rs.4,44,000/-.

When the cheque was presented for encashment, it was

NC: 2023:KHC:27237 CRL.RP No. 1116 of 2015

dishonored for insufficient of funds. All these aspects are

not disputed and admitted.

13. Further, the complainant has also issued a legal

notice and the said legal notice is served on the accused.

Accused through her counsel has issued a reply notice as

per Ex.P.6 wherein, she has virtually admitted the entire

case of the complainant and sought time of four months to

repay the cheque amount. In para No.3 of Ex.P6, the

accused has specifically admitted that she is agreeable to

repay a sum of Rs.4,44,000/- within a period of four

months with a request that the complainant could avoid

Court proceedings. However, no payment was made as

admitted, which has compelled the complainant to lodged a

complaint.

14. During the course of the arguments, learned

counsel for the petitioner/accused has contended that there

is no proper authorization for PW1, but Ex.P1 clearly

disclose that PW1 is authorized to give evidence on behalf

NC: 2023:KHC:27237 CRL.RP No. 1116 of 2015

of the company in all legal proceedings. Hence, the said

contention holds no substance.

15. The second contention urged by the learned

counsel for the petitioner is regarding legally enforceable

debt. It is undisputed fact that cheque belongs to the

accused and bears her signature which is produced at

Ex.P2. The signature of the accused is marked at Ex.P.2(a).

Accused has not disputed her signature on the cheque.

Even her reply at Ex.P6 establish that she has admitted her

liability and sought four months time. Hence, question of

now disputing legally enforceable debt does not arise at all.

In view of these aspects, both the Courts below have

appreciated the oral and documentary evidence in proper

perspective and have rightly convicted the accused for the

offence under Section 138 of NI Act. Hence, the conviction

order passed by the trial Court and confirmed by the first

appellate Court does not call for any interference.

16. During the course of arguments, learned counsel

for the petitioner submits that the sentence of

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NC: 2023:KHC:27237 CRL.RP No. 1116 of 2015

imprisonment may be waved off by restricting the sentence

for fine only. Learned counsel for the petitioner submits

that the accused is a lady and suffered loss in her business

and hence, leniency may be shown in reducing the

sentence of imprisonment including fine amount. However,

the cheque amount itself is for Rs.4,44,000/- and the trial

Court has awarded compensation of Rs.5,25,000/-. Instead

of compensation that can be converted into fine by

enhancing it to Rs.5,50,000/- and out of that,

Rs.5,20,000/- can be paid to the complainant as ordered by

the trial Court and the remaining Rs.30,000/- is required to

be credited towards the fine amount of the State Treasury.

Only to this extent the petition needs to be allowed

regarding sentence portion and accordingly, the point under

consideration is answered partly in the affirmative and

hence, I proceed to pass the following:

ORDER

a. The revision is allowed partly.

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NC: 2023:KHC:27237 CRL.RP No. 1116 of 2015

b. The judgment of conviction passed by the XIV ACMM, Bangalore in CC.No.26332/2011 dated 07.08.2013 and confirmed by LVII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bangalore in Crl.A.No.25108/2013 stands confirmed. However, the sentence portion is modified and the sentence of imprisonment is set aside, but the compensation awarded to the tune of Rs.5,25,000/- is converted into fine by imposing fine of Rs.5,50,000/- on accused and in default of payment of fine she shall undergo simple imprisonment for a period of six months.

c. Out of the fine amount, Rs.5,20,000/- shall be paid to the complainant under Section 357 of Cr.P.C. by way of compensation and balance of Rs.30,000/- needs to be appropriated to the State.

Send back the original records to the concerned trial

Court along with a copy of this order for compliance.

Sd/-

JUDGE

DS