T.B. Rudresh vs Wing Commander A.K Sharma
2023 Latest Caselaw 6936 Kant

                             1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF OCTOBER, 2023

                       BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.618 OF 2015

BETWEEN:

T.B.RUDRESH,
S/O BHOJANNA,
AGED ABOUT 44 YEARS,
R/AT 10TH CROSS, TPK ROAD,
SAPTAGIRI LAYOUT,
TUMKUR TOWN,
TUMKUR DISTRICT - 567721.               ....PETITIONER

(BY SRI BALAGANGADHAR G.S, ADVOCATE)

AND:

WING COMMANDER A.K. SHARMA,
(RETD.) @ ASHOK KUMAR SHARMA,
S/O LATE MUKHRAM,
AGED ABOUT 44 YEARS,
R/AT NO.21, ACHAIAH SETTY LAYOUT,
IST CROSS, SADASHIVANAGAR,
BANGALORE - 80.                        ...RESPONDENT

(BY SRI RAJASHEKAR B KANAVI, ADVOCATE - ABSENT)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
ORDER OF CONVICTION DATED 24.04.2015 PASSED BY THE
67TH ADDL. CITY CIVIL AND S.J., BENGALURU IN
CRL.A.NO.1138/2014  CONFIRMING     THE   ORDER   OF
CONVICTION DATED 19.09.2014 PASSED BY THE XII
A.C.M.M., BENGALURU IN C.C.NO.20609/2010 CONVICTING
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THE APPELLANT FOR AN OFFENCE P/U/S 138 OF N.I.ACT BY
ALLOWING THIS CRL.R.P.

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 22.09.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                                ORDER

This revision petition is filed by the accused/revision

petitioner challenging the judgment of conviction and order of

sentence passed by XII Additional Chief Metropolitan

Magistrate, Bangalore, in CCNo.20609/2010 dated 19.09.2014

and confirmed by LXVII Additional City Civil & Sessions

Judge, Bangalore City, in Crl.A.No.1138/2014 vide judgment

dated 24.04.2015.

2. For the sake of convenience, the parties are herein

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 accused was a registered sale agreement holder

with one Sarojamma in respect of land measuring 1 acre 5 &

1/2 guntas, situated in Allalasandra village of Bangalore North

Taluka. The accused has offered to sell the said land to the

complainant and he along with Sarojamma received an

advance amount of Rs.50,00,000/- and have executed a

registered agreement of sale dated 14.09.2009, in favour of

the complainant. They have agreed to repay the advance

amount in case of any defective title is

noticed. Subsequently, it is revealed that Sarojamma had a

defective title and a complaint came to be lodged against the

accused and Sarojamma in this regard. Then the complainant

got information that accused and Sarojamma were not having

title over the property and they have played fraud on the

complainant. On 19.11.2009, the complainant has sent a

letter to the accused and Sarojamma to cancel the agreement

dated 14.09.2009 and refund the earnest amount of

Rs.50,00,000/- paid by the complainant. In response to the

said letter accused has replied by letter dated 11.11.2009 and

also issued a cheque bearing number 275551 dated

12.12.2009, drawn on ING Vysya Bank Ltd., Tumkur

Branch for Rs.50,00,000/- in favour of the complainant

towards the refund of advance the amount. As per request of

the accused, complainant presented the said cheque on

15.01.2010 for encashment, but it was returned for funds

insufficient. Thereafter, complainant got a legal notice issued

to the accused and legal notice issued was returned as

unclaimed and notice sent under certificate of posting was

served on the accused. The accused has not repaid the cheque

amount and hence, a complaint under Section 138 of the

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

be lodged.

4. The learned Magistrate has taken cognizance of

the offence and issued process against the accused. The

accused has appeared in pursuance of the summons issued to

him and was enlarged on bail. The plea under section 138 of

N.I. Act was recorded and accused denied the same.

The complainant was got examined himself as PW1 and

he placed reliance on nine documents marked at Ex.P1 to

Ex.P9. 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. His case was a formal denial. Thereafter, the

accused himself was got examined as DW1 and placed

Reliance on Ex.D1 & Ex.D2. 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 N.I. Act by imposing a fine of

Rs.70,00,000/- with a default sentence.

5. Being aggrieved by this judgment of conviction

and order of sentence, the accused has approached LXVII

Additional City Civil & Sessions Judge, Bangalore

City, in Crl.A.No.1138/2011.

6. The learned Sessions judge after re-appreciating

the oral and documentary evidence, dismissed the appeal by

confirming the judgment of conviction and order of sentence

passed by the learned Magistrate.

7. Against these concurrent findings, the accused is

before this Court.

8. Heard the arguments advanced by the learned

counsel for the revision petitioner. The learned counsel for the

respondent did not choose to appear before the Court to

advance the arguments. Perused the records.

9. The learned counsel for revision petitioner would

contend that the transaction between the parties is regarding

sale and it is a civil liability under the agreement as per the

case of the complainant. He would contend that the civil

litigation was given a colour of criminal litigation and the

accused is only a consenting party to Ex.P7 and he was not

the owner of the land. He would also contend that no suit is

filed for cancellation of the agreement and there is no

provision for unilateral cancellation. He would also assert that

original owner is not a party and the original owner has

received the amount under Ex.P7. Alternatively, he would

contend that sentence may be reduced by showing some

leniency.

10. Having heard the arguments and after

appreciating the oral and documentary evidence, now the

following points 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?"

11. The allegations does establish that the accused

has entered into an agreement with complainant along

with alleged original owner. It is an undisputed fact that the

accused has entered into an agreement with one

Sarojamma pertaining to disputed land. This agreement is

marked at Ex.P6 and it is a registered agreement.

Subsequently, the accused along with Sarojamma entered into

another agreement with the complainant on 14.09.2009. The

accused initially agreed to purchase the disputed land for

Rs.2,00,00,000/-, but within a period of five months, the

consideration was enhanced to Rs.2,85,00,000/-. The accused

was a consenting party for this agreement under Ex.P7. The

accused and Sarojamma together executed this agreement,

which is also a registered agreement. Ex.P6 and Ex.P7 are not

disputed. It is also not under dispute that under Ex.P7 a sum

of Rs.50,00,000/- was paid by the complainant. Again this

fact is evidenced by Ex.P8. Further payment of Rs.50,00,000/

under Ex.P7 is not seriously disputed. Though much

arguments have been advanced by the learned counsel for the

revision petitioner regarding the accused only being a

consenting party and the entire advance amount was received

by Sarojamma, but the default clause 10.1 of Ex. P7 is

relevant, which read as under:

" 10.1) It is agreed between the parties that if the vendors fails to carryout her obligation under this agreement and/or incase of making out any defect in the good and marketable title in the schedule property or the vendor fails to complete the sale transaction as agreed, the vendor and the confirming party jointly and/or severally shall return and refund the entire advance and part sale consideration amount received by the vendor, to the purchaser."

(Underlined by me)

12. Under the said clause, there is an agreement that

in case of defective marketable title, the vendor and

confirming party i.e., accused are jointly and severally liable

to refund the advanced amount. Hence, under Ex.P7 equal

liability is fastened on the accused. The accused has not

disputed Ex.P1 that it belongs to his account and bears his

signature. The defence of the accused is that the original

owner has lodged a complaint and CCB police have

obtained certain signatures, including a singed blank cheque

from him.

13. The complainant was got examined himself as

PW1 and he has reiterated the complaint allegations. In his

cross-examination it is elicited that he was summoned by CCB

Police. But certain cross-examination was made regarding he

obtaining legal opinion. Ex.D1, though was produced by the

complainant initially, he did not tender the same in

evidence, but it was confronted by accused and got it marked.

On perusal of Ex.D1, it is evident that it was a letter

addressed by complainant to the accused and the accused has

signed on Ex.D1 for having received the said letter. Further,

Ex.D2 was also confronted to the complainant and got marked

by the accused.

14. Much arguments have been advanced regarding

civil litigation and colour of criminal prosecution was being

given. But the fact remains that accused along with

Sarojamma entered into a contract with the complainant and

there was a joint liability. It is also evident from the clause

10.1 of Ex.P7 that accused is jointly and severally liable to

refund Rs.50,00,000/-to complainant along with Sarojamma.

It is evident from the admissions given by the accused that

Sarojamma has no saleable title and she was prosecuted on

the basis of complaint lodged by the original owner.

15. The accused who was got himself examined as

DW1 has also admitted that he was also prosecuted and he

was also charge sheeted. The accused has simply raised a

defence that he was summoned by CCB Police and he was

asked to return Rs.50,00,000/- which he has taken from

complainant pertaining to transaction with the complainant

and there Police obtained one cheque assuring him to settling

the dispute. He claimed that he has given a signed blank

cheque to the police. He further asserts that same was given

by police to the complainant and this false case is being

lodged. At the outset, the liability of accused to pay

Rs.50,00,000/- is undisputed as it is under Ex.P7.

16. In the cross-examination accused admits Ex.P7

and further admits and his address at Ex.P7. He further admits

that he has executed a sale agreement in favour of the

complainant for total consideration of Rs.2,85,000 and also

admitted that complainant has paid Rs.50,00,000/- as an

advance. He further admits that Ex.P1 was issued by him to

the complainant. His admission goes contrary to the defence

set up by the accused that the cheque was taken by the CCB

Police. The accused has admitted that he has not taken any

action against police for having obtained a blank cheque from

him nor lodged any complaint or issued legal notice. On the

contrary, in a further cross-examination dated 21.06.2014,

he admitted that he issued Ex.P1 to the complainant. This

admission completely destroyed the defence raised by

the accused.

17. Further complainant has issued a legal notice as

per Ex.P3 and accused in his cross- examination admitted that

notice Ex.P3 was served on him. He has also admitted that

CCB Police have registered a case against him in respect of

the subject matter of the property involved under Ex.P6 and

Ex.P7. He further admits that complainant has sent a letter to

him requesting him to cancel the agreement of sale. He

admits Ex.D1 and Ex.D2 bears his signature. Under what

circumstances Ex.D1 and Ex.D2 were executed are not

forthcoming. Ex.D1 is the letter issued by the complainant to

the accused and accused signed it for having received it,

wherein complainant has sought for cancellation of deed of

agreement and repayment of advance amount. Ex.D2 is a

material document and it is issued by the accused to the

complainant, wherein he by referring to Ex.D1 sought time up

to 15.01.2010 for cancellation deed and further, asserted that

he has enclosed the cheque bearing 275551, dated

12.12.2009 and the said cheuqe is Ex.P1 for Rs.15,00,000/-.

Considering the admission given by accused in his cross-

examination that he has issued a cheque Ex.P1 to the accused

and coupled with Ex.D1, it is evident that the cheque was sent

along with Ex.D2. Hence, the entire defence raised by the

accused is falsified by these documents and these documents

were got marked by accused himself in the cross-examination

of complainant.

18. Much arguments were advanced regarding civil

transaction being given colour of criminal, but the records

disclose that there was a intention to cheat and accused in

pursuance of Ex.P7 along with Ex.D2 has issued cheque under

Ex.P1. In his cross-examination, he admits that complainant is

entitled for refund of Rs.50,00,000/- which was paid by him

during the transaction of Ex.P7. Hence, the arguments

advanced by the learned counsel for the revision petitioner are

not at all sustainable. The oral and documentary evidence

clearly establishes that the accused has issued the cheque

towards legally enforceable debt.

19. The complainant was deprived of this amount

since 2009 and considering this aspect, the trial Court has

imposed a sentence of fine of Rs.70,00,000/- though the

cheque is for Rs.50,00,000/-. Though the arguments have

been advanced by the learned counsel for the revision

petitioner regarding leniency, what are the compelling

circumstances to show leniency is not at all forthcoming. On

the contrary, the evidence of accused itself discloses that his

wife is a Councilor of Tumkur Town Municiplaity. The accused

using the status of his wife, was involved in such

illegal activities and the Court has not imposed any sentence

of imprisonment, but only fine came to be imposed. No

illegality or perversity is found in the judgment of conviction

and order of sentence passed by both the Courts below.

Hence, question of interference with said judgments and

orders does not arise at all. As such, the point under

consideration is answered in the negative and accordingly, I

pass the following

ORDER

(i) The revision petition is dismissed.

Send back the TCRs to the trial court with the direction

to secure the presence of accused/revision petitioner herein

for recovery of the fine amount.

The amount in deposit shall be paid to the complainant

after adjusting the fine amount as ordered by the trial court.

Sd/-

JUDGE

DS