Sri Anil Kumar B K vs Sri Ravi D
2023 Latest Caselaw 991 Kant

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                                                  CRL.RP No. 941 of 2013




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 17TH DAY OF JANUARY, 2023

                                      BEFORE
                      THE HON'BLE MR JUSTICE R. NATARAJ
                CRIMINAL REVISION PETITION NO. 941 OF 2013

            BETWEEN:

            SRI. ANIL KUMAR B.K.,
            S/O SRI. KEMPAIAH,
            AGED ABOUT 38 YEARS,
            R/A BILI SHIVALE VILLAGE,
            BIDARAHALLI HOBLI,
            BANGALORE EAST TALUK - 560 077.
                                                            ...PETITIONER
            (BY SRI. KALYAN R., ADVOCATE)


            AND:

            SRI. RAVI D,
            S/O BUDAHATTIGAN,
            AGED ABOUT 38 YEARS,
            R/A NO.42, 3RD CROSS,
            SARASWATHIPURAM, 25 FEET ROAD,
            ULSOOR, BANGALORE - 560 008.
                                                           ...RESPONDENT
            (BY SRI. RAVIKUMAR M S., ADVOCATE)
Digitally
signed by
SUMA
Location:        THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
HIGH
COURT OF
            SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
KARNATAKA   PRAYING TO SET ASIDE THE ORDER DATED 28.10.2013 PASSED BY
            THE INCHARGE PRESIDING OFFICER, FTC-III, MAYO HALL UNIT,
            BANGALORE IN CRL.A.NO.25145/2012 AND CONSEQUENTLY TO SET
            ASIDE THE ORDER DATED 05.10.2012 PASSED BY THE XIV
            ADDL.C.M.M., BANGALORE IN C.C.NO.60963/2009.


                 THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
            THE COURT MADE THE FOLLOWING:
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                                               CRL.RP No. 941 of 2013




                               ORDER

The petitioner has challenged the judgment of conviction

dated 05.10.2012 passed by the XIV Additional Chief

Metropolitan Magistrate, Bengaluru in C.C.No.60963/2009 for

the offence punishable under Section 138 of Negotiable

Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881'

for short) and the consequent sentence to pay fine of

Rs.11,00,000/- and in default to undergo simple imprisonment

for one year. The petitioner has also assailed the correctness of

the judgment of the Appellate Court dated 28.10.2013 passed

by the Incharge Fast Track Court-III, Mayo Hall Unit, Bengaluru

in Crl.A.No.25145/2012, by which, the judgment of conviction

and order of sentence passed by the trial Court was upheld.

2. The complaint lodged by the respondent before the

trial Court discloses that the petitioner was the owner of certain

land in Bileshivale Village, Bidarahalli Hobli, Bengaluru East

Taluk, Bengaluru. He claimed that he had promoted a layout of

sites in the aforesaid land, by marketing the sites to various

parties and that substantial sums of money were collected from

such purchasers, which were paid to the petitioner. However,

CRL.RP No. 941 of 2013

the petitioner was unable to register and convey the sites so

agreed. The petitioner is stated to have refunded a sum of

Rs.10,00,000/-, in terms of two cheques bearing Nos.800286

dated 01.11.2008 and 800287 dated 01.12.2008 for

Rs.5,00,000/- each. The respondent claimed that the said

cheques were dishonoured due to insufficient funds, when

presented with his banker for encashment. The respondent

caused a notice of demand on 27.02.2009, which was served,

however, the petitioner did not reply or repay the amount

demanded in the notice. The respondent alleged that the

petitioner had therefore committed an offence punishable under

Section 138 of NI Act, 1881 and initiated prosecution of the

petitioner. The sworn statement of the respondent was

recorded and C.C.No.60963/2009 was registered and process

was issued to the petitioner. The petitioner appeared before the

Court and pleaded not guilty and claimed to be tried. The

respondent was examined as PW.1 and he marked Exs.P1 to

P9. The statement of the petitioner was recorded under Section

313 of Cr.P.C. and he denied the incriminating evidence against

him and offered to lead defense evidence. The petitioner was

CRL.RP No. 941 of 2013

examined as DW.1 and a copy of the agreement of sale dated

20.01.2006 was marked through the respondent as Ex.D1.

3. Based on the oral and documentary evidence, the

trial Court held that the cheque in question was drawn by the

petitioner towards discharge of a debt namely towards

reimbursement of the sale consideration paid by the clients of

the respondent who had purchased sites from the petitioner

and therefore, the said cheques were drawn towards discharge

of a lawful debt and due to the dishonour of the said cheques

due to the insufficient funds, the petitioner had committed an

offence punishable under Section 138 of NI Act, 1881. The trial

Court convicted him for the said offence and sentenced him to

pay fine of Rs.11,00,000/-. Being aggrieved by the said

judgment of conviction, the petitioner filed Criminal Appeal

No.25145/2012. The Appellate Court secured the records of the

trial Court and after hearing both the parties, it framed point

for consideration and thereafter, disposed off the appeal and

upheld the judgment of conviction and order of sentence

passed by the trial Court.

CRL.RP No. 941 of 2013

4. Being aggrieved by the same, the present revision

petition is filed.

5. Learned counsel for the petitioner submits that the

respondent was one of the partners of a firm, with which, the

petitioner had entered into an understanding, in terms of

which, the firm was required to identify purchasers in whose

favour the petitioner had executed sale agreements. He

therefore submits that there was no transaction between the

petitioner and the respondent and therefore, the respondent

could not have launched prosecution for the offence punishable

under Section 138 of NI Act, 1881. He also contended that the

respondent did not place on record, the agreement of sale

dated 20.01.2006, under which, sites were agreed to be

conveyed in favour of his clients who had purchased sites. He

further contended that there was inconsistency between the

case set up in the notice of demand issued by the respondent

as well as the private complaint lodged. He contended that on

these counts, the trial Court as well as the Appellate Court

ought to have acquitted the petitioner for the offence

punishable under Section 138 of NI Act, 1881.

CRL.RP No. 941 of 2013

6. Per contra, learned counsel for the respondent

submits that the petitioner in the course of his evidence had

admitted that he had executed 10 agreements in favour of 10

purchasers, who were the clients of the respondent. He also

deposed that he did not execute any conveyance, conveying

the sites in favour of the said 10 purchasers. Therefore, he

contends that the cheques in question were drawn by the

petitioner towards reimbursement of the consideration payable

to the said purchasers. He contended that since the respondent

had taken the responsibility of ensuring the conveyance of

these 10 sites, the petitioner as well as the respondent had

amicably settled the issue, in terms of which, the petitioner had

handed over two cheques in question towards discharge of a

sum of Rs.10,00,000/- that was payable to clients of the

respondent. He therefore submitted that the judgment of

conviction passed by the trial Court and upheld by the

Appellate Court does not warrant interference as there is no

illegality or irregularity committed by the trial Court and the

Appellate Court in considering the case.

CRL.RP No. 941 of 2013

7. I have considered the submissions made by the

learned counsels for the petitioner as well as the respondent.

8. A perusal of the records of the trial Court does not

disclose any procedural error committed by the trial Court or by

the Appellate Court in disposal of the case before it. On facts,

though it was contended that there was no privity of contract

between the petitioner and respondent and there could be not

liability, the records disclose that the petitioner was the owner

of certain land in Bileshivale Village, Bidarahalli Hobli,

Bengaluru East Taluk, Bengaluru. The respondent had

promoted the sale of the sites formed in the said layout and

had identified certain purchasers, in whose favour, the

petitioner had executed certain agreements and had collected

huge amount from the purchasers. It is also found that that

petitioner had failed to convey the sites so agreed to be sold

under the agreements referred above. Consequently, a

settlement was arrived at, in terms of which, the petitioner

agreed to refund a sum of Rs.10,00,000/- through two cheques

bearing Nos.800286 dated 01.11.2008 and 800287 dated

01.12.2008 for Rs.5,00,000/- each. The evidence of petitioner

CRL.RP No. 941 of 2013

(DW.1) indicates that he had received a sum of Rs.20,00,000/-

from the respondent under the agreements of sale. He also

admitted that he had agreed to sell 10 sites formed in Sy.No.44

and also admitted that he did not convey those 10 sites in

favour of the respondent or the persons brought by the

respondent. He also admitted that he did not refund the

amount either to the respondent or to the persons approached

through the respondent. The petitioner later claimed that he

had conveyed 7-8 plots in favour of the clients of the

respondent, but, no documents of whatsoever nature was

produced before the Court to establish that he had conveyed

the said 7-8 plots in favour of the clients of the respondent.

This evidence clearly demonstrated that the petitioner had

received certain money from either the respondent or from

persons whom the respondent had identified, in whose favour

about 10 sale agreements were executed. The petitioner failed

to conclude the transaction and convey the sites in favour of

the said 10 purchasers. It was in that context that cheques in

question were drawn by the respondent and therefore, the

petitioner had admitted his liability to the extent of

CRL.RP No. 941 of 2013

Rs.10,00,000/- and therefore, the cheques in question are

deemed to have been drawn by the petitioner towards

discharge of a lawful debt. The petitioner did not dispute his

signature found on the cheques and did not dispute that the

cheques were drawn from his account. Therefore, it was

imminent that the presumption under Section 139 of NI Act,

1881 had to be drawn against the petitioner. The petitioner

having set out his defense by claiming that he had executed 10

sale deeds in favour of the respondent and his nominee

purchasers, ought to have established the same by producing

the said sale deeds. No effort in that regard was made and

therefore, the petitioner failed to rebut the presumption as

provided under Section 139 of the NI Act, 1881. The trial Court

and the Appellate Court have rightly assessed the evidence on

record and have rightly held that the petitioner was guilty of

the offence punishable under Section 138 of NI Act, 1881 and

therefore, were right in convicting the petitioner for the said

offence and sentencing him to pay a fine of Rs.11,00,000/-.

10. There is no merit in this revision petition and

therefore, the same is dismissed.

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CRL.RP No. 941 of 2013

Any amount deposited before the trial Court/Sessions

Court, is ordered to be released in favour of the respondent.

Sd/-

JUDGE

NR/-