Smt. Sabitha L Rao vs M/S Bharath International ...
2023 Latest Caselaw 4596 Kant

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                                    CRL.RP No. 1325 of 2015


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
          DATED THIS THE 18TH DAY OF JULY, 2023
                          BEFORE
           THE HON'BLE MR. JUSTICE S RACHAIAH
     CRIMINAL REVISION PETITION NO. 1325 OF 2015
BETWEEN:
SMT. SABITHA L RAO
AGED ABOUT 40 YEARS
W/O VENKET ROA
PARTNER
M/S SILVER LINE DESTINATIONS
(TOUR OPERATORS) NO.605
80 FEET, DOUBLE ROAD
3RD BLOCK, RAJMAHAL VILAS EXTENTION
2ND STAGE, BENGALURU
PIN - 560 094.

                                                ...PETITIONER
(BY SRI. PRASANNA D P, ADVOCATE)

AND:
M/S BHARATH INTERNATIONAL TRAVELS
(MYSORE) NO.576, DIWAN'S ROAD
MYSORE - 570 004.
REP. BY ITS PARTNER
SRI. M.R. SALIAN

                                               ...RESPONDENT
(BY SRI. VINAY N, ADVOCATE FOR
    SRI. MANMOHAN P N, ADVOCATE)


      THIS CRL.RP IS FILED U/S. 397 R/W SECTION 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
SENTENCE PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS
JUDGE, MYSORE IN CRL.A.NO.323/2013 VIDE ITS JUDGMENT DATED
05.11.2015 AND THE JUDGMENT OF CONVICTION AND SENTENCE
PASSED BY THE V ADDITIONAL FIRST CIVIL JUDGE AND J.M.F.C., AT
MYSORE, IN C.C.NO.595/2008 AND ITS DATED 17.10.2013 AND
ETC.,

     THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 11.07.2023, COMING ON FOR PRONOUNCEMENT
OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:
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                                          CRL.RP No. 1325 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 17.10.2013 in C.C.No.595/2008 on the

file of the Court of the V Additional First Civil Judge and

J.M.F.C., at Mysore and its confirmation judgment and order

dated 05.11.2015 in Crl.A.No.323/2013 on the file of the Court

of the V Additional District and Sessions Judge, at Mysore

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 the 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 petitioner

herein had borrowed a sum of Rs.7,37,702/- for her necessities

and in lieu of receiving the amount, cheque was issued in

favour of the respondent. When it was presented for

encashment, an endorsement dated 31.01.2008 was issued by

CRL.RP No. 1325 of 2015

the Bank stating that, the cheque dishonoured as "funds

insufficient". A notice was issued in that regard to the

petitioner herein, it was duly served and it is stated that, the

petitioner neither replied to the said notice nor repaid the

amount. Hence, complaint had been filed by the complainant /

respondent before the jurisdictional Magistrate.

4. To prove the case of the complainant, he himself

examined as PW.1 and got marked 61 documents namely

Exhibits P1 to P61. On the other hand, the petitioner herein

neither examined any witness nor marked any documents on

her behalf. The Trial Court after appreciating the oral and

documentary evidence on record, convicted the petitioner for

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

sentenced her to pay a fine of Rs.11,00,000/-, in default of

payment of fine, she was ordered to undergo simple

imprisonment for a period of six months. Being aggrieved by

the same, the petitioner preferred an appeal before the

Appellate Court, the appeal came to be dismissed. Being

aggrieved by the same, the petitioner has preferred this

revision petition seeking to set aside the concurrent findings.

5. Heard Shri Prasanna D P, learned counsel for the

petitioner and Shri Vinay.N, learned counsel appearing on

CRL.RP No. 1325 of 2015

behalf of Shri Manmohan P.N, 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 the submission of the learned counsel for the

petitioner that, even though it is an admitted fact that, the

transaction had taken place between M/s. Bharath International

Travels (Mysuru) and M/s. Silver Line Destinations (Tour

Operators), the respondent has not made a Company as one of

the accused, which is illegal and erroneous. The Courts below

failed to appreciate this crucial aspect and proceeded to convict

the petitioner, which is illegal and unsustainable. Having

submitted thus, learned counsel for the petitioner prays to

allow the petition.

8. Per contra, Shri Vinay.N., learned counsel

appearing on behalf of Shri Manmohan P N, learned counsel for

the respondent, vehemently justified the concurrent findings

CRL.RP No. 1325 of 2015

and submits that, since the petitioner's Company is a

proprietorship concern, the complainant made the petitioner of

the Company as accused and the Company need not be shown

as another accused.

9. It is further submitted that, the transaction has

been admitted, the cheque and signature also admitted by the

petitioner. The Courts below rightly raised a presumption and

convicted the petitioner. The said conviction was followed by

well a reasoned order and interference may not be warranted in

such order. As such, learned counsel for the respondent prays

to dismiss the petition.

10. 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. 1325 of 2015

ii) Whether the petitioner has made out

grounds to interfere with the concurrent findings

recorded by both the Courts below for conviction?

11. 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.

12. In the present case, the learned counsel for the

petitioner canvassed the argument that, the Courts below failed

to consider that the said transaction was held between two

Companies and the respondent / complainant ought to have

made the Company as one of the accused/offender. In the

absence of Company being made as an offender, the judgment

of conviction rendered by the Trial Court and its confirmation

order of the Appellate Court are to be held as erroneous and

illegal and such judgments are unsustainable.

13. To consider the same, it is necessary to refer the

provision of Section 141(1) of the N.I. Act, which reads thus:

CRL.RP No. 1325 of 2015

"141. Offences by companies.- (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub- section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:

[Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.]"

14. On perusal of the above said provision, it makes it

clear that, if a person committing an offence under Section 138

of N.I Act is a Company, every person who was incharge and

was responsible to the Company for the conduct of the business

of the Company, the Company shall be deemed to be guilty of

CRL.RP No. 1325 of 2015

the offence. As per the provision, the Company should have

been made as one of the accused as an offender before filing

the complaint.

15. Admittedly, in this case, the petitioner and the

respondent were running Tours and Travels Company. Ex.P1-

cheque contains two signatures on the drawer column. In the

evidence of PW.1, it is admitted that, the said transaction held

between M/s.Bharath International Travels and M/s.Silver Line

Destinations. The respondent represented as a partner of

M/s.Bharath International Travels and the petitioner

represented M/s.Silver Line Destinations, as a partner. The

respondent ought to have made the Company as one of the

accused and should have filed the complaint. Since there is a

glaring illegality and error committed by the Courts below in

appreciating the evidence and applying the law, interference by

this Court is justified.

16. It is also relevant to refer the judgment of the

Hon'ble Supreme Court in the case of ANEETA HADA v.

M/S.GOD FATHER TOURS AND TRAVELS LTD.1, wherein the

Hon'ble Supreme Court held that,

(2012) 5 SCC 661

CRL.RP No. 1325 of 2015

"Section 141 of the N.I. Act stipulates that when a person who is a company commits an offence, then certain categories of person incharge as well as the company could be deemed to be liable for the offence under section 138 of the N.I. Act. Thus, the statutory intendment is absolutely plain. As is perceptible, the provision makes the functionaries and the companies to be liable and that is by deeming fiction."

17. On considering the evidence of PW.1 and also the

dictum of the Hon'ble Supreme Court, I am of the considered

opinion that, the Courts below committed an error in convicting

the petitioner without arraying the Company as an accused.

Hence, the conviction is liable to be set aside.

18. 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"

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

ORDER

(i) The Criminal Revision Petition is allowed.

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CRL.RP No. 1325 of 2015

(ii) The judgment of conviction and order of sentence dated 17.10.2013 passed in C.C.No.595/2008 on the file of the Court of the V Additional First Civil Judge and J.M.F.C., at Mysore and judgment and order dated 05.11.2015 passed in Crl.A.No.323/2013 on the file of the Court of the V Additional District and Sessions Judge, at Mysore, are set aside.

(iii) The petitioner is acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act.

(iv) Bail bonds executed, if any, stand cancelled.

Sd/-

JUDGE

UN