Sri B A Abubakkar Saheb vs D K And Udupi Dist Fish
2023 Latest Caselaw 6899 Kant

                             1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF OCTOBER, 2023

                       BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.526 OF 2014

BETWEEN:

SRI. B.A. ABUBAKKAR SAHEB,
AGED ABOUT 59 YEARS,
S/O. LATE ABDUL SAHEB,
R/A: DURAL ALEEMA MANZIL,
NEJAARU, SANTHEKATTE,
UDUPI TQ AND DISTRICT,
PIN-576 101.
                                           ....PETITIONER
(BY SRI. G.C. HARSHA, ADVOCATE FOR
    SRI. NISHIT KUMAR SHETTY, ADVOCATE)

AND:

D. K. AND UDUPI DIST. FISH
MARKETING FEDERATION LTD.
P.B.NO.114, MULIHITHLU,
MANGALORE, D.K-575 101,
REPRESENTED BY ITS
MANAGING DIRECTOR,
GANAPATHI BHAT,
S/O K. SUBRAYA BHAT,
AGED ABOUT 52 YEARS.
                                          ...RESPONDENT
(BY SRI. S.V. PRAKASH, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PARYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED
                                 2

9.8.2012 PASSED BY THE J.M.F.C. (V COURT), MANGALORE IN
C.C.NO.176/2010 AND THE JUDGMENT AND ORDER DATED
2.7.2014 PASSED BY THE I ADDL. DIST. AND S.J., D.K.,
MANGALORE IN CRL.A.NO.236/2012.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 20.09.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

This revision is filed by the accused/revision

petitioner under Section 397 r/w 401 for Cr P.C.

challenging the judgment of conviction and order of

sentence passed by JMFC-V Court, Mangalore, in

C.C.No.176/2010, dated 09.08.2012 and confirmed by I

Additional Sessions Judge, D.K., Mangalore, in

Crl.A.No.236/2012, dated 02.07.2014.

2. For the sake of convenience the parties are here

in are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are as

under:

The complainant is a Co-operative Fish Marketing

Federation registered under Karnataka Co-operative

Societies Act, 1959 and the accused is a member of the

complainant-Society and approached the complainant for

the purchase of the fish and executed an agreement in

favour of the complainant for purchase the prawns and

other fish from the complainant on a credit basis at

Hangarakatte Branch from 01.01.2007 to 10.06.2007. It

is alleged that in the said transaction, the accused

remained in due of Rs.6,06,095.65 to the complainant

and on demand by the complainant to pay the dues, he

issued a cheque dated 07.05.2009 for the said amount.

When the said cheque was presented, it was dishonoured

for insufficient of funds. It is alleged that that thereafter

the complainant has got issued a legal notice and the

legal notice sent under the certificate of posting was

served and legal notice sent by registered post was

returned as 'not claimed'. It is alleged that the accused

has neither paid the cheque amount nor replied and

hence, a complaint came to be lodged for the offence

punishable under Section 138 of the Negotiable

Instruments Act, 1881 (for short 'N.I. Act').

4. On the basis of the complaint, the learned

Magistrate has taken cognizance of the offence and

issued a process against the accused. The accused has

appeared and he was enlarged on bail. The plea under

Section 138 of the N.I. Act is read over and explained to

the accused and he pleaded not guilty. To prove the guilt

of the accused, the complainant has got examined two

witnesses as PW1 and PW2 and placed reliance on

fourteen documents marked at Ex.P1 to Ex.P14.

5. After the conclusion of the evidence of the

complainant, the statement of accused under Section 313

Cr.P.C. is recorded to enable him to explain the

incriminating evidence appearing against him in the case

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

However, the accused has got examined himself as DW1

and he also placed reliance on Ex.D1 to Ex.D5.

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 N.I. Act by

imposing a fine of Rs.8,05,000/-.

7. This judgment of conviction and order of

sentence was challenged by the accused before the I

Additional Sessions Judge, Mangalore, in

Crl.A.No.236/2012. The learned Sessions Judge after re-

appreciating the oral and documentary evidence, has

dismissed the appeal. Against these concurrent findings,

the accused is before this Court.

8. Heard the arguments advanced by the learned

counsel for the revision petitioner and learned counsel for

the respondent. Perused the records.

9. The learned counsel for the revision petitioner

would contend that as per Ex.D2 to Ex.D5 he has already

paid Rs.4,00,000/- and further evidence discloses that

there is Rs.1,00,000/- deposit and further payments have

been made. Hence, he would contend that Ex.D2 to

Ex.D5 are not reflected in the ledger extract and PW2

claims that the balance is only Rs.4,06,095/-. But the

claim of the complainant is entirely different. It is further

contended that the payments under Ex.D2 to Ex.D5 was

not taken note of by both the Courts below and there is

no explanation why they were ignored. Hence, he would

contend that approach of both the Courts below is

arbitrary and erroneous, which has resulted in

miscarriage of justice. Hence, he would seek for allowing

the revision.

10. Per contra, learned counsel for the respondent

would contend that the transaction is as per Ex.P8 and

Ex.D2 to Ex.D5 were pertaining to commission and since

the cheque and signature has been admitted, the

presumption under Section 139 is in favour of the

complainant. Hence, he would dispute the contention of

the revision petitioner and sought for dismissal of the

revision.

11. Having heard the arguments and after

appreciating the oral and documentary evidence, now the

following point would arise for my consideration:

"Whether the judgment of conviction and order of sentence passed by both the Courts below are perverse, erroneous and arbitrary so as to call for any interference by this Court?"

12. It is the specific contention of the complainant

that, it is the Society and accused being a member has

entered into an agreement to purchase the prawns and

fish from the complainant on a credit basis at

Hangarakatta branch from 01.01.2007 to 10.06.2007 and

towards this transaction he was due to a sum of

Rs.6,06,095.65 and a cheque was issued in this regard,

which was bounced.

13. It is further asserted by the complainant that

the transaction is based on Ex.P8. On perusal of Ex.P8, it

is evident that there was an agreement for furnishing

security to the tune of Rs.1,00,000/- before participating

in the auction and interestingly, it is not a sale, but it is

authority for the auction and the agreement discloses

that the accused is entitled to attend every bid and is

required to deposit Rs.1,00,000/- as a security deposit.

The clause No.15 discloses that security deposit is liable

for confiscation and this agreement is from 01.01.2007 to

10.06.2007 alone. There is no dispute between the

parties regarding Ex.P8.

14. PW1 who is the Managing Director, was got

examined himself as PW1. In his examination-in-chief, he

has reiterated the complaint allegations. In his cross-

examination, he asserts that he is working from

November 2008 in Mangalore branch and the accused is

dealing in Hangarakatta Branch. He claims that

agreement took in Mangalore main Branch, but the

accused was required to make payment to Hangarakatta

Branch and this transaction is pertaining to Hangarakatta

Branch. He further admits that the ledger extract

produced is pertaining to Hangarakatta Branch. He

further admits that the ledger extract Ex.P9 to Ex.P11 are

pertaining to September 2004 to June 2007.

15. In the further cross-examination, he

specifically asserts that Ex.P1 is with reference to the

agreement Ex.P8 alone. He further asserts that as per

Ex.P8 accused can purchase only the prawns and fish to

the extent of Rs.1,00,000/- on credit basis and he further

claims that the security deposit of Rs.1,00,000/- still is in

their possession. He admits that they have got the power

for confiscation for the said amount. In his further cross-

examination, he admitted that the auction is required to

be held every fifteen days and he denies the suggestion

that accused has never purchased the prawns and fish

worth of more than Rs.1,00,000/-. He further admits that

the manager of Hangarakatta Branch has not acted in

terms of Ex.P8, but no steps were taken against him.

16. In the further examination, he claims that he

cannot say as to when the accused made the last

payment on the basis of the ledger extract in Ex.P9 to

Ex.P11. He admits that subsequently accused has made

the payment and he asserts that in 2009 he paid

Rs.1,00,000/-.

17. In his further cross-examination, the

complainant-PW1 has admitted Ex.D1 when it is

confronted to him. He further admits that as per Ex.D1

Rs.1,50,000/- was received by the Society prior to

lodging of this complaint itself. In that event, what

prevented the complainant from referring the receipt of

Rs.1,50,000/- in the complaint is not at all explained.

Further on perusal of Ex.P1 it is evident that the bearer

was struck of and order came to be written and the same

was not signed. He further admits that whenever cheque

was issued, a receipt was being issued. But in the instant

case, in respect of Ex.P1, the complainant has not

produced any receipt. He denied that the entire payment

was made by the accused. The evidence of this witness

clearly establishes that Rs.1,50,000/- as referred in

Ex.D1 was paid earlier itself i.e., 10.06.2009 itself and

the complaint was lodged on 20.06.2009. But there was

no reference of Ex.D1 in the complaint. His evidence

further discloses that later on, again subsequent to filing

to complaint Rs.1,00,000/- was paid, but he did not

explain why these entries were not shown in Ex.P9 to

Ex.P11.

18. Further PW2 is another witness who claims to

be in charge branch manager of Malpe Branch and he

claims that he was working in Hangarakatta Branch from

13.08.2004 to 15.11.2009. In his examination-in-chief,

he has reiterated the complaint allegations and he asserts

that Rs.1,50,000/- paid by the accused is referred in

Ex.P12 and he relies on Ex.P13 and further asserts that

Rs.50,000/- was paid and that was also recorded, which

is evident from Ex.P14. So according to this witness, only

Rs.2,00,000/- was paid subsequent to the transaction,

but PW1 himself admitted in his cross-examination that

subsequently accused has also paid a sum of

Rs.1,00,000/- by way of cheque, but there is no

reference regarding payment of Rs.1,00,000/- in the

evidence of PW2.

19. In the cross-examination, PW2 claims that he

cannot say on which date between 01.01.2007 to

10.06.2007 the accused has purchased the fish from the

Society and what was the value of the fish. He further

admits that in Ex.P9 to Ex.P11 ledger extracts, there is no

detail of this aspect. He further claims that the payments

made by the accused were disclosed in ExP9 to Ex.P11.

20. When Ex.D2 - Ex.D5 were confronted, he

admits that they were issued by the complainant-Society,

but he tries to give an explanation that they were

pertaining to the commission charges at the time of the

sale of the fish. He admits Ex.D2 to Ex.D5, but he asserts

that they were pertaining to commission and further

admits that the payment under Ex.D2 to Ex.D5 is not

shown in Ex.P9-Ex.P11, but claims of having a separate

register. The said register is not produced before the

Court by the complainant. Under Ex.D2 to Ex.D5

Rs.50,000/- on 03.12.2007, Rs.50,000/- on 13.08.2007,

Rs.25,000/- on 27.06.2007 and Rs.1,25,000/- on

13.03.2007 was paid to the Society. These payments

were admittedly not found in Ex.P9 to Ex.P11 and they

were made prior to the alleged transaction. The total

amount of these payments is about Rs.2,50,000/-.

Though it is contended that the payments under Ex.D2 to

Ex.D5 were pertaining to commission, in Ex.P8 there is

no reference of commission. The entire claim of

complainant is based on Ex.P8, which permits the

accused to participate in the bid and purchase the goods

by depositing a security amount of Rs.1,00,000/-. There

is no agreement regarding charging the commission and

on what basis the commission is claimed is not explained.

Though PW2 claims that a separate ledger is maintained

regarding this transaction of payment of commission, the

same was not produced before the Court. Hence, it is

evident that under Ex.D1 to Ex.D5 more than

Rs.4,00,000/- is paid and admissions given by PW1

himself disclose that subsequently, again Rs.1,00,000/-

was paid.

21. Even the complainant-PW2 admitted that all

the purchases were not referred in Ex.P9 to Ex.P11.

When there is no agreement for charging commission,

how the complainant has adjusted the payments made

under Ex.D2 to Ex.D5 towards commission is not at all

explained. The ledger extract pertaining to commission is

also not produced and the explanation offered by PW2 in

this regard is not acceptable.

22. The oral and documentary evidence produced

by the complainant and cross-examination of PW1 and

PW2 itself clearly disclose that the complainant has failed

to prove the legally dischargeable debt to the tune of

Rs.6,06,095.65 as asserted. Even all along, it is asserted

that whenever amount is paid by way of cheque a receipt

would be issued and in that event, nothing prevented the

complainant from producing a copy of the receipt book to

prove that this cheque was issued towards payment. The

assertion of the accused is that the cheque was only

obtained by way of security and from Ex.D2 to Ex.D5

establish payment of Rs.4,00,000/- and PW1 admitted

payment of Rs.1,00,000/- by way of cheque and

Rs.1,00,000/- is already there as a security deposit.

Hence, almost the entire payment was made by the

accused, but the complainant is still prosecuting without

giving any proper explanation.

23. Both the Courts below failed to appreciate the

oral and documentary evidence in proper perspective and

in a mechanical way on the basis of Ex.P1 cheque and

Ex.P8 proceeded to convict the accused. They did not

consider the cross-examination and they did not verify

Ex.D2 to Ex.D5 and admissions given by PW1 and PW2 in

this regard. The entire approach of both the Courts below

is perverse, arbitrary and erroneous, which has resulted

in miscarriage of justice. Hence, considering these facts

and circumstances, it is evident that the complainant has

failed to prove that the cheque Ex.P1 was issued towards

legally enforceable debt and hence, question of convicting

the accused for the offence punishable under Section 138

of the N.I. Act does not arise at all. The accused has

raised a probable defence by producing the material

documents and cross-examining PW1 and thereby he has

rebutted the presumption available in favour of the

complainant and thereafter, the complainant has not

discharged his burden of proving that the cheque was

issued towards legally enforceable debt. Hence,

considering these facts and circumstances, the conviction

order passed by both the courts below does not survive

and calls for interference by this Court. As such, the point

under consideration is answered in the affirmative and

accordingly, I proceed to pass the following:

ORDER

(i) The revision petition is allowed.

(ii) The impugned judgment of conviction and order of sentence passed by JMFC-V Court, Mangalore, in C.C.No.176/2010, dated 09.08.2012 and confirmed by I Additional Sessions Judge, D.K., Mangalore, in Crl.A.No.236/2012, dated 02.07.2014, are set aside.

(iii) The accused stands acquitted for the offence punishable under Section 138 of the N.I. Act stands and he is set at liberty forthwith.

(iv) The bail bonds executed by the accused/revision petitioner stand cancelled.

(v) The amount deposited by the accused/revision petitioner if any, in courts shall be paid to him.

Sd/-

JUDGE

DS