Karnataka High Court
Smt Vinoda B vs Panchami Finance on 23 August, 2023
Bench: S Rachaiah
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CRL.RP No. 275 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO.275 OF 2015
BETWEEN:
SMT. VINODA B
W/O NARENDRA
AGED ABOUT 49 YEARS
GENERAL DEPARTMENT, BSNL
OLD KENT ROAD, PANDESHWARA
MANGALORE - 575 001.
...PETITIONER
(BY SRI. DINESH KUMAR K RAO, ADVOCATE)
AND:
PANCHAMI FINANCE
PANCHAMI VYAVAHAR
REPRESENTED BY ITS MANAGING PARTNER
SHRI PRAVEEN SUVARNA
S/O SANJEEVA SUVARNA
HAVING ITS OFFICE AT 2ND FLOOR
GANGA COMPLEX, THOKKOTTU
MANGALORE - 575 001.
...RESPONDENT
(BY SRI. DEVI PRASAD SHETTY, ADVOCATE)
THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401
CR.P.C PRAYING TO SET ASIDE JUDGMENT AND ORDER DATED
06-01-2015 PASSED BY THE II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALORE IN CRL.A.NO.325/2013
AND THE JUDGMENT AND ORDER DATED 31-08-2013 PASSED
BY THE JMFC (IV COURT), MANGALORE IN C.C.NO.1112/2008
AND ETC.,
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 18.07.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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CRL.RP No. 275 of 2015
ORDER
1. This Criminal Revision Petition is filed by the
petitioner, being aggrieved by the judgment of conviction and
order of sentence dated 31.08.2013 in C.C.No.1112/2008 on
the file of the Court of the J.M.F.C. (IV Court), Mangalore and
its confirmation judgment and order dated 06.01.2015 in
Crl.A.No.325/2013 on the file of the Court of the II Additional
District and Sessions Judge, D.K., Mangalore, has filed this
revision petition seeking to set aside the concurrent findings
recorded by the Courts below, wherein the petitioner / accused
was convicted for the offence punishable under Section 138 of
the Negotiable Instruments Act, 1881 (for short 'N.I. Act').
Brief facts of the case are as under:
2. It is the case of the complainant that, the petitioner
/ accused stated to have borrowed hand loan of Rs.90,000/-
from the respondent / complainant. In lieu of the same, the
petitioner issued a cheque dated 21.08.2006 for the said sum.
When it was presented for encashment, it was dishonoured for
the reason of 'insufficient funds'. Notice was sent to the
petitioner herein on 19.09.2006, though it was served, neither
CRL.RP No. 275 of 2015
replied nor repaid the amount. Hence, the complaint was filed
against the petitioner herein.
3. To prove the case of the complainant, the partner
of the complainant / Finance Company was examined as PW.1
and got marked Exhibits P1 to P11. On the other hand, the
petitioner / accused has not led any evidence. 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.
4. Heard Shri Dinesh Kumar K. Rao, learned counsel
for the petitioner and Shri Devi Prasad Shetty, learned counsel
for the respondent.
5. It is the submission of the learned counsel for the
petitioner that, the Courts below failed to consider the
contradiction and omission and passed the impugned
CRL.RP No. 275 of 2015
judgments, which are opposed to the facts and evidence on
record, hence the same are liable to be set aside.
6. It is further submitted that, the respondent is not
authorized to lodge the complaint. Even though the respondent
is a Finance Company named as Panchami Finance, the
documents produced and marked at Exhibits P6 to P11 indicate
that, it is Panchami Vyavahar. The same has been admitted by
PW.1. When the cheque was issued in the name of Company
and the said Company was not in existence, the complaint filed
by the person, who is not authorized on behalf of Panchami
Finance, is not sustainable. The Trial Court and the Appellate
Court have failed to notice the said aspect, as a result of which,
the impugned judgments have been passed which require to be
set aside. Making such submission, learned counsel for the
petitioner prays to allow the petition.
7. Per contra, learned counsel for the respondent
vehemently justified the concurrent findings of the Courts
below and submits that, the Panchami Vyavahar is also named
as Panchami Finance, merely because the name is wrongly
mentioned in the cheque issued by the petitioner, cannot
absolve his liability. The Trial Court and the Appellate Court
rightly appreciated the facts and circumstances of the case and
CRL.RP No. 275 of 2015
convicted the petitioner which requires no interference. Having
submitted thus, learned counsel for the respondent prays to
dismiss the petition.
8. 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?
ii) Whether the petitioner has made out
grounds to interfere with the concurrent findings
recorded by both the Courts below for conviction?
9. 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.
CRL.RP No. 275 of 2015
10. On careful reading of the evidence of PW.1, it
appears that, he was the partner of Panchami Finance.
However, in his affidavit evidence it is stated that, Partner,
Panchamivyavahar Finance. No documents have been
produced to indicate that, he was neither proprietor nor partner
of Panchami Finance. Ex.P1 - cheque contains the name of the
drawee as Panchami Finance.
11. It is needless to say that, the respondent produced
certain documents which are marked as Exs.P6 to P8 and
Exs.P10 and P11 which show, all the documents including Ex.P6
- Money Lenders Licence dated 01.07.2008, which was issued
in the name of M/s Panchami Vyavahar, are not relating to
Panchami Finance. When Ex.P1 - Cheque belongs to Panchami
Finance, Panchami Vyavahar cannot present the cheque for
encashment. It is needless to say that, liability would not be
arisen to the person other than the drawee of the cheque
without any authorization by the original drawee. Here in this
case, the respondent has failed to establish that, Panchami
Vyavahar and Panchami Finance are one and the same, nor
produced any documents, authorisation to lodge a complaint on
behalf of Panchami Finance. Hence, the liability to pay the
amount as stated in Ex.P1 - cheque does not arise. Both the
CRL.RP No. 275 of 2015
Courts failed to take note of the liability and considered the
liability of the petitioner and recorded the conviction appears to
be erroneous and untenable. The Courts below should have
dismissed the complaint as not maintainable as the
complainant / respondent was not authorized to lodge the
complaint on behalf of Panchami Finance. Having failed to do
so and recorded the conviction, the said conviction and findings
are liable to be set aside.
12. In the light of the observations made above, the
points which arose for my consideration are answered as
under:-
Point No.(i) - "Negative"
Point No.(ii) - "Affirmative"
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence, dated 31-08-2013 in
C.C.No.1112/2008 on the file of the Court of the
J.M.F.C. (IV Court), Mangalore and judgment
and order dated 06.01.2015 in
CRL.RP No. 275 of 2015
Crl.A.No.325/2013 on the file of the Court of the
II Additional District and Sessions Judge, D.K.
Mangaluru, D.K., are set aside.
(iii) The petitioner is acquitted for the offence under
Section 138 of Negotiable Instruments Act.
(iv) Bail bonds executed, if any, stand cancelled.
(v) The Trial Court is directed to refund the amount,
if any, deposited by the petitioner to the
petitioner / accused, on proper identification.
Sd/-
JUDGE
Bss
