K Satish Kumar vs N Ramani
2023 Latest Caselaw 197 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 4TH DAY OF JANUARY, 2023

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

CRIMINAL REVISION PETITION No.449 OF 2013
                  c/w.
CRIMINAL REVISION PETITION No.448 OF 2013,
CRIMINAL REVISION PETITION No.450 OF 2013
                  AND
CRIMINAL REVISION PETITION No.451 OF 2013


IN CRIMINAL REVISION PETITION No.449 OF 2013

BETWEEN:

K. Satish Kumar,
S/o. Late Sri Krishnappa,
Aged 58 years,
Residing at No.4, 3rd Floor,
Shiradi Sai Krupa Complex,
Nagappa Street, Sheshadripuram,
Bangalore - 560 020.
                                            ..Petitioner
(By Sri. Kiran S. Javali, Senior Advocate
for Sri. Chandrashekara K., Advocate)

AND:

N. Ramani,
S/o. A.S. Neelakantan,
Aged 57 years,
Residing at No.138,
15th Cross,
19th Main, I Block,
                                                   Crl.R.P.No.449/2013
                                            c/w. Crl.R.P.No.448/2013,
                                               Crl.R.P.No.450/2013 &
                                                  Crl.R.P.No.451/2013

                                2


Rajajinagar,
Bangalore - 560 020.
                                                    .. Respondent
(By Sri. Ravi B. Naik, Senior Advocate
for Sri.V. Krishnamurthy, Advocate)

                                 ****

This Criminal Revision Petition is filed under Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973, praying to set aside the order of conviction passed by the XIII Additional Chief Metropolitan Magistrate, at Bangalore, in C.C.No.1366/2008 dated 21-02-2012 and confirmed in Appeal by order dated 20-04-2013 of the Court of Fast Track XIII, Bangalore City in Crl.Appeal No.257/2012 and pass such further order or orders as this court may deem fit and proper in the circumstances of the case and render justice.

IN CRIMINAL REVISION PETITION No.448 OF 2013

BETWEEN:

K. Satish Kumar, S/o. Late Sri Krishnappa, Aged 58 years, Residing at No.4, 3rd Floor, Shiradi Sai Krupa Complex, Nagappa Street, Sheshadripuram, Bangalore - 560 020.

..Petitioner (By Sri. Kiran S. Javali, Senior Advocate for Sri. Chandrashekara K., Advocate)

AND:

N. Ramani, S/o. A.S. Neelakantan, Aged 57 years, Residing at No.138, Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

15th Cross, 19th Main, I Block, Rajajinagar, Bangalore - 560 020.

.. Respondent (By Sri. Ravi B. Naik, Senior Advocate for Sri.V. Krishnamurthy, Advocate)

**** This Criminal Revision Petition is filed under Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973, praying to set aside the order of conviction passed by the XIII Additional Chief Metropolitan Magistrate, at Bangalore, in C.C.No.1365/2008 dated 21-02-2012 and confirmed in Appeal by order dated 20-04-2013 of the Court of Fast Track XIII, Bangalore, in Crl.Appeal No.256/2012 and pass such further order or orders as this court may deem fit and proper in the circumstances of the case and render justice.

IN CRIMINAL REVISION PETITION No.450 OF 2013

BETWEEN:

K. Satish Kumar, S/o. Late Sri Krishnappa, Aged 58 years, Residing at No.4, 3rd Floor, Shiradi Sai Krupa Complex, Nagappa Street, Sheshadripuram, Bangalore - 560 020.

..Petitioner (By Sri. Kiran S. Javali, Senior Advocate for Sri. Chandrashekara K., Advocate)

AND:

N. Ramani, S/o. A.S. Neelakantan, Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

Aged 57 years, Residing at No.138, 15th Cross, 19th Main, I Block, Rajajinagar, Bangalore - 560 020.

.. Respondent (By Sri. Ravi B. Naik, Senior Advocate for Sri.V. Krishnamurthy, Advocate) **** This Criminal Revision Petition is filed under Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973, praying to set aside the order of conviction passed by the XIII Additional Chief Metropolitan Magistrate, at Bangalore, in C.C.No.6814/2008 dated 21-02-2012 and confirmed in Appeal by order dated 20-04-2013 of the Court of Fast Track XIII, Bangalore City in Criminal Appeal No.259/2012 and pass such further order or orders as this court may deem fit and proper in the circumstances of the case and render justice.

IN CRIMINAL REVISION PETITION No.451 OF 2013

BETWEEN:

K. Satish Kumar, S/o. Late Sri Krishnappa, Aged 58 years, Residing at No.4, 3rd Floor, Shiradi Sai Krupa Complex, Nagappa Street, Sheshadripuram, Bangalore - 560 020.

..Petitioner (By Sri. Kiran S. Javali, Senior Advocate for Sri. Chandrashekara K., Advocate) Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

AND:

N. Ramani, S/o. A.S. Neelakantan, Aged 57 years, Residing at No.138, 15th Cross, 19th Main, I Block, Rajajinagar, Bangalore - 560 020.

.. Respondent (By Sri. Ravi B. Naik, Senior Advocate for Sri.V. Krishnamurthy, Advocate) **** This Criminal Revision Petition is filed under Sections 397 read with Section 401 of the Code of Criminal Procedure, 1973, praying to set aside the order of conviction passed by the XIII Additional Chief Metropolitan Magistrate, at Bangalore, in C.C.No.1368/2008 dated 21-02-2012 and confirmed in Appeal by order dated 20-04-2013 of the Court of Fast Track XIII, Bangalore City in Criminal Appeal No.258/2012 and pass such further order or orders as this court may deem fit and proper in the circumstances of the case and render justice.

These Criminal Revision Petitions having been heard through physical hearing/video conferencing and reserved on 08-12-2022 at the Principal Bench at Bengaluru, coming on for pronouncement of orders at the Dharwad Bench, this day, the Court made the following:

COMMON ORDER

The revision petitioner is the same person in all these

four revision petitions. The present petitioner has

challenged in these revision petitions the confirmation of his Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

conviction for the offence punishable under Section 138 of

the Negotiable Instruments Act, 1881 (hereinafter for

brevity referred to as "the N.I. Act").

2. The present respondent in all these revision

petitions is Sri.N. Ramani, was the complainant in

C.C.No.1366/2008, C.C.No.1365/2008, C.C.No.6814/2008,

and C.C.No.1368/2008, all filed in the Court of the XIII

Additional Chief Metropolitan Magistrate, Bangalore,

(hereinafter for brevity referred to as "the Trial Court")

against the present revision petitioner (accused), alleging

the offence punishable under Section 138 of the N.I. Act.

3. The common summary of the case of the

complainant in the Trial Court was that, the accused

(revision petitioner herein) was known to him and that he

entered into an agreement of sale dated 28-06-1997 with

him (complainant), agreeing to sell some immovable

properties to him and received a total sum of `44,60,000/-

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

through seven Demand Drafts. At the instruction of the

accused for further advance, he (complainant) paid him a

sum of US $1,22,000.00 equivalent to Indian Rupee of a

sum of `44,50,000/- in London, United Kingdom, to the

representative of the accused and thus, the accused had

received in total a sum of `89,10,000/-. However, for one

reason or the other, the accused kept on postponing the

registration of the property. Later, a Memorandum Of

Understanding (MOU) was entered into between them on

the date 11-06-2002. The accused assured him that he

would complete the registration of the immovable property

on or before the month of July-2002. He (complainant)

paid further amount through foreign exchange to the

accused which has been recorded in the Memorandum Of

Understanding (MOU) dated 11-06-2002. Ultimately, the

accused shown his inability to execute the Sale Deed and

agreed to refund the amount received by him. Accordingly,

he executed an agreement dated 27-06-2007 in his Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

(complainant's) favour, stating that, the performance of the

contract has become impossible, as such, a settlement was

arrived at, wherein the accused agreed to pay a total sum

of `2,25,00,000/- in full and final settlement in lieu of the

cancellation of the agreement of sale. The original of the

said agreement dated 27-06-2007 has been in the custody

of the accused.

It is further the case of the complainant that, after the

agreement dated 27-06-2007, the accused issued him four

cheques, i.e. (i) cheque bearing No.002474 dated

30-06-2007 for a sum of `50,00,000/-; (ii) cheque bearing

No.002475 dated 31-07-2007 for a sum of `50,00,000/-;

(iii) cheque bearing No.002476 dated 31-08-2007 for a sum

of `50,00,000/-; and (iv) cheque bearing No.002477 dated

29-09-2007 for a sum of `75,00,000/-, in total amounting

to a sum of `2,25,00,000/- and all the four cheques were

drawn on the IDBI Bank, Mission Road, Bangalore, in his

(complainant's) favour. As requested by the accused, when Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

the complainant presented those cheques to the Bank for

encashment, they came to be returned unpaid with the

banker's endorsement 'funds insufficient". Thereafter, he

(complainant) got issued a legal notice upon the accused in

all the four criminal cases, calling upon him for the payment

of the four cheques' amount. Since the accused neither

paid the cheques' amount nor replied to the notices issued

in respect of all the four cheques, he (the complainant) was

constrained to institute four separate criminal cases against

him (accused) in the Trial Court in C.C.No.1365/2008,

C.C.No.1366/2008, C.C.No.6814/2008 and

C.C.No.1368/2008.

4. The accused appeared in the Trial Court and

contested the matter through his counsel. He pleaded not

guilty and claimed to be tried. Accordingly, the Trial Court

in all the matters, by its separate judgments, but all dated

21-02-2012, held the accused guilty for the alleged offence Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

punishable under Section 138 of the N.I. Act and convicted

him for the said offence and sentenced him accordingly.

5. Aggrieved by the said judgment of conviction and

order on sentence passed by the Trial Court in the four

criminal cases, the same accused preferred four separate

criminal appeals, i.e. Criminal Appeal No.257/2012 against

the judgment passed in C.C.No.1366/2008 (in Criminal

Revision Petition No.449/2013); Criminal Appeal

No.256/2012 against the judgment passed in

C.C.No.1365/2008 (in Criminal Revision Petition

No.448/2013); Criminal Appeal No.259/2012 against the

judgment passed in C.C.No.6814/2008 (in Criminal Revision

Petition No.450/2013); and Criminal Appeal No.258/2012

against the judgment passed in C.C.No.1368/2008, all in

the Court of the Fast Track-XIII, Bangalore City,

(hereinafter for brevity referred to as "the Sessions Judge's

Court).

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

6. After hearing both side, the learned Sessions

Judge's Court, by its separate judgments passed in all the

four appeals, but on the same day, i.e. on 20-04-2013,

dismissed all the appeals and confirmed the impugned

judgments passed by the Trial Court. Aggrieved by the

same, the accused in the Trial Court has preferred all these

four revision petitions.

7. Learned Senior Counsel for the revision petitioner

(accused) and learned Senior Counsel for the respondent

(complainant) along with their respective instructing

counsels are appearing physically before the Court.

8. The Trial Court and Sessions Judge's Court's

records in all these petitions were called for and the same

are placed before this Court.

9. Heard the learned Senior Counsels from both side.

Perused the materials placed before this Court including the Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

Trial Court and Sessions Judge's Court's records in all these

four petitions.

10. At the request from both side, all these matters

were clubbed together and common arguments were heard

from both side.

11. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

12. After hearing the learned Senior Counsels for the

parties, the only point that arise for my consideration in

these revision petitions is:

Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court?

13. Learned Senior Counsel for the accused (revision

petitioner) in all these four matters, in his argument Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

submitted that, he would not deny or dispute that the

accused was the drawer of all the four cheques in question

and that all those four cheques, when presented for their

realisation, came to be dishonoured for the reasons of

insufficiency of funds. He would also not dispute that the

legal notices were issued upon the accused by the

complainant demanding the payment of the four cheques'

amount. However, he disputes that the complainant is

entitled for the amounts shown in the dishonoured cheques

and that there existed any legally enforceable debt in

favour of the complainant.

Learned Senior Counsel for the accused (petitioner) in

his argument, though initially took a contention that, the

alleged payment of an amount of US $1,22,000.00 by the

complainant to the representative of the accused in London

in United Kingdom is in violation of the Foreign Exchange

Management Act, 1999 (hereinafter for brevity referred to Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

as "the FEMA"), however, he did not press the said point in

his further argument.

Learned Senior Counsel for the accused (revision

petitioner) vehemently contended that there existed no

agreement dated 27-06-2007 between the parties. Further,

the said agreement marked in the evidence of the

complainant as four different exhibits in four criminal cases

is not original agreement and that no foundation was laid by

the complainant to produce the said agreement and prove it

as a secondary evidence. He also submitted that the

complainant has not made out any case in the alleged

transaction for purchase of immovable property by him from

the accused. The documents produced by him would not

give any clear picture with respect to the alleged

transaction. He further contended that the total

consideration received and acknowledged by the accused

from all the four cases put together is only a sum of

`44,60,000/- and rest of the allegations made by the Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

complainant in his complaint and evidence are all self

created stories. He further proceeded to say that, since

the accused has admitted his liability only to an extent of a

sum of `1,25,00,000/-, stating that he would pay the said

sum to the complainant, the fastening of the liability by an

additional sum of `1,00,00,000/-, thus totaling to a sum of

`2,25,00,000/- was an unfounded one. However, both the

Trial Court and the Sessions Judge's Court, without properly

appreciating the evidence placed before them in their

proper perspective, have jumped to a conclusion by merely

noticing the four dishonoured cheques and held the accused

guilty of the alleged offence for a total sum of

`2,25,00,000/-, as such, those judgments are erroneous

and deserve to be set aside by this Court.

14. Per contra, learned Senior Counsel for the

respondent (complainant) in all these four matters, in his

argument submitted that, it is only after laying the

foundation to lead the secondary evidence through the Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

agreement dated 27-06-2007 and duly obtaining the prior

permission of the Trial Court, the complainant has produced

copies of the said agreement in all the four criminal cases.

As such, proper foundation as required under law has been

laid and secondary evidence was valid to produce and

establish the agreement dated 27-06-2007. He further

submitted that, if, according to the accused, the total

agreed amount payable by him to the complainant was only

a sum of `1,25,00,000/- and that a sum of `1,00,00,000/-

in the form of two cheques of a sum of `50,00,000/- each

is said to have already been paid to the complainant, then,

there was no necessity for the accused to issue two more

cheques, one, for a sum of `50,00,000/- and another for a

sum of `75,00,000/-, rather, he (the accused) could have

issued a cheque only for a sum of `25,00,000/- and

completed his part of the obligation. Since the total liability

of the accused towards the complainant as per the

agreement dated 27-06-2007 admittedly being a sum of Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

`2,25,00,000/-, the accused has issued four cheques, which

are in question and amounting in total to a sum of

`2,25,00,000/-.

Further, the learned Senior Counsel for the

complainant (respondent) submitted that, no action was

taken by the accused for the alleged misuse of the two

cheques of a sum of `50,00,000/- each, which, according to

the accused, should have been returned to him by the

complainant. He kept quiet for long years and enabled the

complainant to present those cheques and to initiate legal

action against him. Further, the accused did not even reply

to the notices sent to him under Section 138 of the N.I. Act.

All these would only go to show that, the accused was liable

to pay a sum of `2,25,00,000/- to the complainant, as such,

he had issued the four cheques in question. Since

admittedly, those cheques have been returned unpaid and

despite the issuance of notices, the accused has not paid

the cheques' amount, both the Trial Court and the Sessions Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

Judge's Court have convicted the accused and confirmed his

conviction respectively for the offence punishable under

Section 138 of the N.I. Act. Hence, the impugned

judgments do not warrant any interference at the hands of

this Court.

15. In all the four criminal cases, the complainant -

Sri. N. Ramani got himself examined as PW-1 and reiterated

the summary of his complaint even in his examination-in-

chief also. In all the four cases, he (complainant) got

produced and marked the disonoured cheques, banker's

endorsements, copy of legal notices, postal receipts, postal

acknowledgments, unserved postal covers, certified copy of

the written statement, shown to have been filed by the

accused in O.S.No.25737/2008 (filed by the complainant),

the sale agreement dated 28-06-1997, certified copy of the

Memorandum Of Understanding (MOU) dated 11-06-2002,

two letters shown to have been written by the complainant Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

to the accused respectively, the alleged fax message, copy

of the alleged agreement dated 27-06-2007, alleged letter

of confirmation of the balance amount, said to have been

written by the accused to the complainant on the date

28-03-2009, the copies of the passport of the complainant

as exhibits, but with different numbers, in the four criminal

cases. However, the nature of all those documents remain

to be the same in all the four criminal cases, as such, in

order to avoid any confusion with their exhibit numbers,

attempts would be made to mention the names of the

documents, still, keeping their exhibit numbers as shown in

C.C.No.1366/2008 (in Criminal Revision Petition

No.449/2013), since the learned Senior Counsels from both

side referred to the exhibits and their numbers including the

evidence of the parties in C.C.No.1366/2008.

16. The accused - Sri. K. Satish Kumar got himself

examined as DW-1, who, in his examination-in-chief, Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

though did not deny he entering into an agreement dated

28-06-2007 with the complainant and receiving in total a

sum of `44,60,000/- from him, however, denied of he

having received any sum in foreign currency much less

US $1,22,000.00 estimated to be amounting to

`44,50,000/- in Indian Rupee. He also denied of the

agreement dated 27-06-2007 and his alleged liability to

pay the complainant a total sum of `2,25,00,000/-, on the

other hand, he took up a defence that, considering that the

agreement dated 28-06-1997 could not be possible to be

executed, but agreed to refund the money to the

complainant in total of a sum of `1,25,00,000/-. In that

regard, on the condition of the complainant and the

undertaking by him to return two cheques of a sum of

`50,00,000/- each given by the accused to him earlier, two

more cheques, one for a sum of `50,00,000/- dated

31-08-2007 and another for a sum of `75,00,000/- and

dated 29-09-2007 were issued to the complainant.

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

However, the complainant, instead of returning the previous

two cheques of a sum of `50,00,000/- each, has presented

all the four cheques for realisation, as such, there existed

no debt amount of a sum of `2,25,00,000/- payable by the

accused to the complainant.

Both PW-1 (complainant) and DW-1 (accused) were

subjected to a detailed cross-examination from the opposite

side.

17. Learned Senior Counsel for the accused (revision

petitioner), though at the beginning of his argument

submitted that, the alleged payment of a sum of

US $1,22,000.00 (shown as equivalent to Indian Rupee of

`44,50,000/-) is in violation of Section 3 (b) of Chapter II of

the FEMA, as such, the consideration for the cheque amount

is a void consideration, however, he did not elaborate on

the point and did not press on the said point.

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

In view of the learned Senior Counsel for the accused

(petitioner) himself not pressing the said point of

argument, the same is not taken up for discussion here.

18. The evidence of the complainant (PW-1) that the

accused was a known person to him with whom he had

entered into an agreement of sale dated 28-06-1997, under

which, agreeing to purchase some immovable property, he

had paid in total a sum of `44,60,000/- to the accused

through seven Demand Drafts, has not been denied or

disputed from the accused's side.

19. Though the learned Senior Counsel for the

accused (revision petitioner) in his argument initially

disputed that an amount of `66,24,429/- shown as the

amount received by the accused in the alleged agreement

dated 27-06-2007 was an unfounded one and that the same

is at variance compared to the admitted agreement dated Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

28-06-1997, however, after referring the letter of the

accused dated 28-03-2009, addressed to the complainant

which is marked as an exhibit in all the four criminal cases

as a document of confirmation of balance amount, wherein

the accused is shown to have acknowledged the receipt of

payment of a sum of `66,24,429/- from the complainant

and sought its confirmation from the complainant and also

noticing the fact that the accused, as DW-1, in his evidence

has admitted that, the said letter of confirmation of balance

amount was written by him under his signature, he has

fairly conceded that the accused has acknowledged in total

the receipt of a sum of `66,24,429/-, even though the

accused is not admitting the alleged Memorandum Of

Understanding dated 11-06-2002, exhibited in all the four

cases, however, admittedly, there is no mentioning about

the quantum of the total consideration shown to have been

agreed between the parties or shown to have been given by

the complainant to the accused in the said document. As Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

such, so far as the present criminal cases for the offence

punishable under Section 138 of the N.I. Act is concerned,

the said Memorandum Of Understanding dated 11-06-2002

would not matter much. It is also for the reason that the

evidence led by both parties has put an end to several of

these alleged confusions or lack of details in their alleged

transactions.

20. The contention of the complainant, both in his

complaint as well in his evidence as PW-1 is that, since the

agreement dated 28-06-1997 which was further modified

through a Memorandum Of Understanding (MOU) dated

11-06-2002 could not be performed by the accused, he

(accused) executed another agreement dated 27-06-2007

agreeing to pay a sum of `2,25,00,000/- to the complainant

as full and final settlement, in lieu of the cancellation of the

agreement of sale. Though the accused in the cross

examination of PW-1 has denied that any such agreement Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

dated 27-06-2007 was entered into between them,

however, he himself made a suggestion to PW-1, in his

cross-examination, suggesting that, since the complainant

demanded in excess of the agreement consideration, the

accused proposed to pay in all a sum of `1,25,00,000/-, as

full and final settlement and it is only thereafter the accused

issued two cheques, one bearing No.002476 dated

31-08-2007 for a sum of `50,00,000/- and another bearing

No.002477 dated 29-09-2007 for a sum of `75,00,000/- in

lieu of the earlier two cheques issued for a sum of

`50,00,000/- each. Though PW-1 (complainant) admitted

the said suggestion as true, however, by making the said

suggestion the accused himself has shown that, he had

admitted his liability towards the complainant to an extent

of `1,25,00,000/-.

Added to the above, the accused, who got himself

examined as DW-1 also, in his examination-in-chief itself

has stated that, since the complainant did not agree for his Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

offer of a sum of `1,00,00,000/-, the said offer was

improved to `1,25,00,000/- by him (accused) and the same

was accepted in principle, as such, he had to issue two

separate cheques dated 31-08-2007 and 29-09-2007 for a

sum of `50,00,000/- and `75,00,000/- respectively. By

stating so, the accused himself has admitted that his

admitted liability towards the complainant was to a sum of

`1,25,00,000/-. In the process, the accused also has

admitted of he issuing two cheques of `50,00,000/- each to

the complainant and dated 30-06-2007 and 31-07-2007

respectively and subsequently, issuing two more cheques

dated 31-08-2007 and 29-09-2007 for a sum of

`50,00,000/- and `75,00,000/- respectively. Thus, the

accused has admitted that, in total, he had issued four

cheques, in total amounting to a sum of `2,25,00,000/- to

the complainant.

Admittedly, all those four cheques, when presented for

their realisation, returned unpaid with the banker's Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

endorsement of insufficiency of funds in the account of the

drawer of the cheques, i.e. the accused. The complainant,

as PW-1, has not only stated that, he has issued the legal

notices to the accused, demanding the payment of the four

dishonoured cheques' amount from him but also has

corroborated the same by producing copy of the legal

notice, postal receipts and postal acknowledgements.

Though initially the accused had taken a contention about

the non-receipt of the said notice by him, however, the

learned Senior Counsel for the accused (petitioner) has

submitted that, he would not canvass the said point in his

argument since there are materials to show that, the notice

was issued by the complainant and the same was to the

knowledge of the accused. Thus, a presumption under

Section 139 of the N.I. Act about the existence of a legally

enforceable debt forms in favour of the complainant,

however, the said presumption is rebuttable.

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

As observed above, the accused has denied such an

existence of legally enforceable debt to an extent of

`2,25,00,000/- in favour of the complainant, however, he

conceded that his liability, if at all is there, the same is to

an extent of a sum of `1,25,00,000/- only.

It is in this background, the evidence of the parties,

insofar as the existence of a legally enforceable debt to the

said amount of `2,25,00,000/- is required to be looked into.

21. The complainant, as PW-1 has stated that, since

the accused, as a vendor in the agreement of sale has failed

to perform his part of the promise and by subsequent

negotiations regarding the enlargement of the total extent

of the land to be sold to the complainant and also increase

in the quantum of the sale consideration, some more

payments were made to the accused, however, the accused

failed to perform his part of the promise, as such, it was

settled between the parties that the accused should pay as Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

a full and final settlement to the complainant, a total sum of

`2,25,00,000/-, and it is in that regard, the four cheques in

question were given to him by the accused. Though at one

place in his evidence, the complainant, as PW-1 stated that

he has paid a total consideration of a sum of `2,25,00,000/-

to the accused, however, there is no evidence to show that,

the complainant has paid such a sum in total to the

accused. The complainant's attempt to show that, a sum

of US $1,22,000.00 (said to be equivalent to Indian Rupee

of `44,50,000/-) was paid to the accused in the foreign

currency also was seriously disputed and denied from the

accused's side. However, as the basis for the issuance of

four cheques named by the accused, the complainant has

relied upon the alleged agreement dated 27-06-2007, the

copies of which have been marked in all the four criminal

cases as exhibits.

22. It is also the argument of the learned Senior

Counsel for the complainant (respondent herein) that, the Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

entitlement of the complainant for a sum of `2,25,00,000/-

is solely based upon the said agreement dated 27-06-2007,

irrespective of the complainant proving the alleged payment

through foreign exchange to the accused and other sums

paid to him.

Admittedly, the said document shown as agreement

dated 27-06-2007, is not in its original, but it is a

photocopy of the original, produced in all the four cases and

marked as exhibits. It is Ex.P-16 in C.C.No.1365/2008,

Ex.P-17 in C.C.No.1366/2008, Ex.P-18 in C.C.No.6814/2008

and Ex.P-16 in C.C.No.1368/2008.

No doubt, since the said document being only a

photocopy, at the maximum, it can only be produced as a

secondary evidence, for which a proper foundation was

required to be laid by the complainant in the case.

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

According to the learned Senior Counsel for the

accused (petitioner), such a foundation was not laid by the

complainant in the Trial Court.

However, according to the learned Senior Counsel for

the complainant (respondent), such a foundation was laid

by the complainant, since it is only after allowing an

interlocutory application filed by the complainant in that

regard, the Trial Court has passed a detailed order,

permitting him (complainant) to produce the photocopy of

the said document.

A perusal of the Trial Court record would go to show

that, an application was filed by the complainant under

Section 311 of the Code of Criminal Procedure, 1973

(hereinafter for brevity referred to as "the Cr.P.C."), seeking

to recall PW-1 for further examination to mark the

agreement dated 27-06-2007 and a letter dated

28-03-2009. After inviting objections to the said application Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

and hearing both side, the Trial Court, by its detailed order

dated 17-02-2010 (separate order passed in all the four

criminal cases) had allowed the said application and ordered

that a letter dated 28-03-2009 be received in evidence and

the copy of the agreement dated 27-06-2007 was permitted

to be produced and admitted only by proving the execution

of the document by the mode provided under law. Thus, it

is after considering the application wherein the

applicant/complainant had sought for permission to mark

the said documents as secondary evidence as per the

provisions of Sections 65 and 66 of the Indian Evidence

Act, 1872, the Trial Court had permitted him to produce and

mark the said documents.

23. The copy of the agreement dated 27-06-2007,

though was permitted to be produced, however, the

admission of the said document was subject to proving the

execution of the same by a mode provided under law.

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

With regard to the execution of the said agreement

dated 27-06-2007, the complainant, as PW-1, stated that

the accused executed the said agreement dated 27-06-2007

in his (complainant's) favour stating that, since the

performance of the said agreement of sale entered into

between the accused and himself was impossible to be

performed, a settlement was arrived at and the accused had

agreed to pay a total sum of `2,25,00,000/- in full and final

statement, in lieu of the cancellation of the previsous

agreement of sale. He has also specifically stated that the

original of the agreement dated 27-06-2007 was in the

custody of the accused. In the cross examination of PW-1

(complainant), the accused denied of he executing the said

agreement dated 27-06-2007. However, PW-1 in his cross-

examination also has reiterated that he could not produce

the agreement in original since the same was handed over

to the accused, however, he admitted that he has not

signed the copy of the agreement.

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

The witness further elaborated in his further

examination-in-chief recorded after the order passed by the

Trial Court, allowing his application under Section 311 of the

Cr.P.C., that the said original document of the agreement

dated 27-06-2007 was with the accused. The said

agreement was signed by the accused Satish Kumar and

the contents of the said agreement specifically makes out

the issuance of all the cheques by him. The witness further

stated that, calling upon the production of the original

agreement, he had also issued a notice to the accused

which was served upon him through the registered post.

The acknowledgments in that regard were marked by the

witness as Exhibits P-17 and P-18 in C.C.No.1365/2008.

After the above said further evidence of PW-1, the

said witness was subjected to a further cross-examination

from the accused's side on the date 26-05-2010. In the

said cross-examination, which was a lengthy cross-

examination, PW-1 has reiterated that the original of Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

Ex.P-16 was signed by the accused in his presence. He

stated that even he (complainant) has also affixed the

signature on the original of the said document which was

drawn in one set. At that time, one witness known to the

accused was present who was known personally even to

him (complainant). He stated that the said document was

signed in the office of the accused. After the witness

affixing his signature to the said document, he

(complainant) put his signature, but the accused had put his

signature to the document before the witness had affixed

his signature. PW-1 further stated that he affixed his

signature on the said document on the next day of the

witness affixing his signature on the document, since the

accused had to hand over the cheques to him, as such, he

did not sign it on the very same day. He denied a

suggestion that the said agreement was a concocted one by

abusing the electronic media. Thus, PW-1, apart from

producing the document subsequent to the order passed by Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

the Trial Court on his application filed under Section 311 of

the Cr.P.C. and permitting him to produce the said

document as secondary evidence, has also led his evidence

as to how and under what circumstance, the said document

came to be executed.

24. With respect to the agreement dated 27-06-2007

and the recitals therein, the accused, as DW-1, though in

his examination-in-chief has denied the same in-toto,

however, in his further cross-examination dated

04-11-2010, has admitted as true a suggestion that he has

executed the said agreement dated 27-06-2007 though he

calls it is an "MOU". However, his subsequent contention

that his signature therein would not tally with his other

signature in Ex.C-3 would not take away his admission that

he has executed the said document which is the document

shown to be an agreement dated 27-06-2007. Therefore,

even though the said document shown to be an agreement Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

dated 27-06-2007 is shown to be bearing the signature of

only the accused but not the signature of the complainant,

however, the evidence of the complainant as PW-1 shows

that the accused and the witness to the said document had

signed the said document at first and it is only thereafter,

the complainant signed to the said document, however,

after his signing the same, the copy of the said document

was not given to him, rather the original also was retained

by the accused himself. The said evidence of PW-1 could

not be shaken in his thorough and searching cross-

examination from the accused's side, as such, the

contention of the complainant that the said document

(shown to be agreement dated 27-06-2007) was executed

by both parties, however, its copy after its execution was

not given to him by the accused, cannot be disbelieved.

25. Apart from the above, one more point to be

considered is, admittedly, except the alleged agreement Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

dated 27-06-2007, there are no other documents produced

in the case, which mentions about the accused being paid

with a total sum of `66,24,429/-. The receipt of the said

amount has been acknowledged by the accused himself, as

analysed above, after considering the letter shown to be the

confirmation of the balance and dated 28-03-2009 which

has been marked as an exhibit in all the four criminal cases.

Therefore, the amount mentioned in the agreement dated

27-06-2007 at a sum of `66,24,429/- having been

confirmed by the accused's own letter dated 28-03-2009, it

also leads to an inference that, the said agreement dated

27-06-2007 was entered into between the parties and

executed by them.

The said agreement dated 27-06-2007 mentions about

the alleged liability of the accused to pay a sum of

`2,25,00,000/- to the complainant as the final settlement

amount, which, according to the complainant, was paid to

him through four cheques in question.

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

26. It is not in dispute that the complainant, apart

from filing the present four criminal cases against the

accused for the offence punishable under Section 138 of the

N.I. Act, had also instituted a civil suit in Original Suit

No.25737/2008, in the Court of the Additional City Civil

Judge (Mayo Hall) at Bengaluru, for recovery of the four

cheques' amount. The present accused, as a defendant

appeared in the said suit and filed his written statement

under Order VIII Rule 1 of the Code of Civil Procedure 1908

(hereinafter for brevity referred to as "the CPC"), the

certified copy of the said written statement has been

produced in all the four criminal cases and marked as

exhibits. The recital at para.6 of the said written statement

shows that, the accused, as a defendant therein has stated

that, initially he had issued two cheques of a sum of

`50,00,000/- each to the complainant bearing No.002474

and bearing No.002475, however, in spite of the matter

being settled for a sum of `1,00,00,000/-, the plaintiff Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

(complainant) prevailed upon him (defendant) to enhance

the amount atleast by another `25,00,000/-, which

prompted him (defendant) to issue two more cheques, one

for a sum of `75,00,000/- and another for a sum of

`50,00,000/- in lieu of the earlier two cheques issued for a

total sum of `1,00,00,000/- with an understanding that the

plaintiff (complainant) shall return the earlier two cheques

without presentation for encashment. The said contention

was reiterated by the accused as DW-1, however, what is to

be noticed here is, except his self-serving statement that he

(accused) issued two cheques, one for a sum of

`75,00,000/- and another for a sum of `50,00,000/- only

with an understanding that the complainant (plaintiff)

should return the earlier two cheques of `50,00,000/- each,

there is no corroborative oral or documentary evidence to

substantiate his contention.

As rightly argued by the learned Senior Counsel for

the complainant (respondent herein), there was no reason Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

for the accused to issue two more cheques one for a sum of

`75,00,000/- and another one for a sum of `50,00,000/-,

when, according to him, he (the accused) was only due to

pay a sum of `25,00,000/- to the complainant. Since

admittedly, there was already two cheques with the

complainant, one bearing No.002474 dated 30-06-2007 and

another bearing No.002475 dated 31-07-2007, both drawn

on the IDBI Bank, Mission Road, Bangalore, in favour of the

complainant, each for a sum of `50,00,000/-, it was suffice

for the accused if he had paid the remaining alleged agreed

amount of a sum of `25,00,000/- instead of issuing two

cheques for a sum of `50,00,000/- and for a sum of

`75,00,000/-, totaling to a sum of `1,25,00,000/-.

Admittedly, the previous two cheques of a sum of

`50,00,000/- each were not time barred and that they were

issued just a month or two prior to the issuance of the

subsequent two cheques, one for a sum of `50,00,000/-

and another for a sum of `75,00,000/-. Therefore, the Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

contention of the accused that, in good faith, he had issued

subsequent two cheques for a sum of `50,00,000/- and a

sum of `75,00,000/- believing that the complainant would

return the previous two cheques of `50,00,000/- each, in

the circumstance of the case, is very hard to believe.

27. The above inference also gains support by the

undisputed fact that, admittedly, after the issuance of two

cheques, one dated 31-08-2007 for a sum of `50,00,000/-

and another cheque dated 29-09-2007 for a sum of

`75,00,000/-, at no point of time, the accused had taken

any action or steps for recovering the previous two cheques

of `50,00,000/- each, which, according to him, had to be

returned to him by the complainant. The alleged

transaction amount and also the cheques' amount are not a

small amount but they run into crores of rupees. That

being the case, it is very difficult to believe that the

accused believing that the complainant would return the Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

previous two cheques of `50,00,000/- each, proceeded to

issue two more cheques in total amounting to a sum of

`1,25,00,000/-. Admittedly, the accused thereafter neither

issued any notice to the complainant seeking return of

those cheques nor issued any stop payment instructions to

his banker from honouring those cheques nor even initiated

appropriate legal action including a criminal case against

the complainant for wrongful withholding of those two

alleged cheques. Therefore, the defence taken up by the

accused that the cheque bearing No.002474 dated

30-06-2007 and another cheque bearing No.002475 dated

31-07-2007, each for a sum of `50,00,000/- and both

drawn on the IDBI Bank, Mission Road, Bangalore, in favour

of the complainant were not towards the legally enforceable

debt but they were bound to be returned by the

complainant without encashing them, is not acceptable.

Thus, the attempt made by the accused to rebut the

presumption formed in favour of the complainant could not Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

able to rebut the presumption, on the contrary, the

evidence led by the complainant, both oral and

documentary and the cross-examination of DW-1 from the

complainant's side would go to show that, the complainant

has made out a case against the accused and proved that,

the accused has committed the offence punishable under

Section 138 of the N.I. Act.

28. Since it is appreciating the materials and the

evidence placed before them in their proper perspective, the

Trial Court and the Sessions Judge's Court have convicted

and confirmed the conviction of the accused respectively,

for the offence punishable under Section 138 of the N.I. Act,

I do not find any perversity, infirmity or illegality,

warranting interference at the hands of this Court.

29. It is the sentencing policy that the sentence

ordered must be proportionate to the gravity of the proven

guilt. It shall be neither exorbitant nor for the name-sake.

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

30. In the instant case, the Trial Court, has, in all the

four criminal cases, sentenced the accused to pay a fine of

only a sum of `5,000/- more than the respective four

cheques' amount. Out of the said fine amount, the

respective cheque amount was ordered to be payable to the

complainant as compensation and the balance amount of

`5,000/- in each of the criminal cases was ordered to be

remitted as fine to the State. In default of payment of the

fine amount, the accused was liable to undergo simple

imprisonment for a period of one year.

31. Since the sentence ordered by the Trial Court

which was further confirmed by the Sessions Judge's Court

in the criminal appeals filed by the accused, being

proportionate to the gravity of the proven guilt against the

accused, I do not find any reason to interfere and to modify

the said order on sentence also.

Accordingly, I proceed to pass the following:

Crl.R.P.No.449/2013 c/w. Crl.R.P.No.448/2013, Crl.R.P.No.450/2013 & Crl.R.P.No.451/2013

ORDER

The Criminal Revision Petition

No.449/2013, the Criminal Revision Petition

No.448/2013, the Criminal Revision Petition

No.450/2013 and the Criminal Revision Petition

No.451/2013 stand dismissed as devoid of

merit.

Registry to transmit a copy of this order to both the

Trial Court and also the Sessions Judge's Court along with

their respective records in all these cases, at the earliest.

Sd/-

JUDGE

BMV*