Karnataka High Court

Crescent Steels vs Model Infra Corporation Pvt Ltd on 12 October, 2023

Bench: M G Uma

                             1




    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 12TH DAY OF OCTOBER, 2023

                         BEFORE

             THE HON'BLE MRS.JUSTICE M.G. UMA

       CRIMINAL REVISION PETITION NO.1269/2021
BETWEEN:

1. CRESCENT STEELS
   A PROPRIETARY CONCERN HAVING
   OFFICE AT NO.5, GUNBOW STREET
   20 DOOSRA STREET,
   MUMBAI - 400 001.
   REP. BY MURSTZA FAIZY
   PROPRIETOR

2. MR. MURSTZA FAIZY
   PROPRIETOR OF CRESCENT STEELS,
   HAVING OFFICE AT 5,
   GUNBOW STREET,
   20, DOOSRA STREET,
   MUMBAI - 400 001.

                                            ... PETITIONERS
(BY SRI: DILIP KUMAR .K., ADVOCATE)
AND:
MODEL INFRA CORPORATION PVT. LTD.,
A COMPANY DULY REGISTERED AND
INCORPORATED UNDER THE COMPANIES
ACT, 1956, HAVING ITS REGISTERED
OFFICE AT NO.605, SMK CHAMBERS,
1 A MAIN ROAD, SECTOR A, NEW TOWN,
YELAHANKA, BENGALURU - 560 064
THROUGH AUTHORIZED REPRESENTATIVE
MR. PRASHANTH A SURYAWANSHI
                                            ... RESPONDENT
(BY SRI: PRASHANTH .B.K., ADVOCATE)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
TO 1. SET ASIDE THE JUDGMENT DATED 12.10.2021 PASSED BY
                               2




HONBLE COURT OF THE LXII ADDL. CITY CIVIL AND SESSIONS
JUDGE, BENGALURU IN CRL.A.NO.346/2019. 2. AND SET ASIDE
THE JUDGMENT DATED 18.01.2019 PASSED IN C.C.NO.548/2017
WHEREIN HONBLE XXV A.C.M.M., BENGALURU CITY, CONVICTED
THE PETITIONER NO.2 HEREIN FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF THE N.I. ACT BY SENTENCING HIM TO
PAY FINE OF RS.6,45,000/- IN DEFAULT OF PAYMENT OF SAID
AMOUNT HE SHALL FURTHER DIRECTED TO UNDERGO S.I FOR A
PERIOD OF ONE YEAR.

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

                            ORDER

The accused in CC No.548/2017 on the file of the learned

XXV Additional Chief Metropolitan Magistrate at Bengaluru

(hereinafter referred to as 'the trial Court' for brevity), is

impugning the judgment of conviction and order of sentence

dated 18.01.2019, convicting him for the offence punishable

under Section 138 of Negotiable Instrument Act ('NI Act' for

short) and sentencing to pay fine of Rs.6,50,000/- and in

default, to undergo simple imprisonment for one year, which

was confirmed in Crl.A.No.346/2019 on the file of the learned

LXII Additional City Civil and Sessions Judge, Bengaluru

(hereinafter referred to as 'the First Appellate Court' for

brevity) vide judgment dated 12.10.2021.

2. Brief facts of the case are that, the complainant

represented by its authorized representative, filed the private

complaint in PCR No.15289/2015 against the accused alleging

commission of offence punishable under Section 138 of NI

Act. It is alleged that the complainant- company engaged in

the business of supplying fabrication to various industries.

Accused No.1 is the proprietary concern and accused No.2 is

its proprietor. The complainant was in need of steel plates

used as raw materials in manufacturing the fabrication

materials and approached the accused for supply of such steel

plates. As per the quotation dated 23.06.2014, the accused

offered to sell the steel plates required by the complainant.

The complainant placed order dated 28.06.2014 for purchase

of salima 4501 material sail make steel plate and on

28.06.2014, the complainant paid an advance amount of

Rs.5,84,668/- by transferring the same through RTG's to the

account of the accused being 50% of the total consideration

amount. But the accused failed to supply the raw materials

as agreed. Therefore, the agreement to purchase the steel

plates stood cancelled. The accused agreed to refund the

amount which was paid as advance. He issued the cheque

bearing No.928758 dated 15.10.2014, drawn on National Co-

operative Bank Limited, Podar Chambers, Store Lane Fort,

Mumbai- 400001. When the cheque was presented for

encashment, the same was dishonoured as there was

insufficient funds. The complainant issued legal notice to

accused Nos.1 and 2 informing them regarding dishonour of

the cheque and calling upon them to repay the cheque

amount. The notice was served on the accused. But inspite of

that, the accused had not replied, nor repaid the cheque

amount. Thereby, the accused have committed the offence

punishable under Section 138 of NI Act. Accordingly, the

complainant requested the trial Court to take cognizance of

the offence and to initiate legal action against the accused.

3. The trial Court took cognizance of the offence and

registered CC No.548/2017 against the accused for the above

said offence. The accused appeared before the trial Court in

response to the summons and pleaded not guilty for the

accusation made against him. The complainant examined

PW-1 and got marked Exs.P1 to 8 in support of his contention.

The accused has not led any evidence in support of his

defence, except denying the incriminating materials on

record. The trial Court after taking into consideration the

materials on records that are placed before it, came to the

conclusion that the complainant is successful in proving the

guilt of the accused for the offence punishable under Section

138 of NI Act and accordingly, passed the impugned judgment

of conviction and order of sentence as stated above.

4. Being aggrieved by the same, the accused has

preferred Crl.A.No.346/2019. The First Appellate Court on re-

appreciation of the materials on record, dismissed the appeal

by confirming the impugned judgment of conviction and order

of sentence passed by the trial Court.

5. Being aggrieved by the same, the accused has

preferred this revision petition.

6. Heard Sri Dilip Kumar K., learned counsel for the

revision petitioner/accused and Sri Prashanth B.K., learned

counsel for the respondent/complainant. Perused the

materials including the trial Court records.

7. Learned counsel for the revision petitioner

submitted that the accused could not cross-examine PW-1,

nor he could lead his evidence in support of his defence.

Therefore, the matter is required to be remanded back to the

trial Court by affording an opportunity to the accused to

cross-examine PW-1 and also to lead evidence, in the interest

of justice. Accordingly, he prays for allowing the revision

petition.

8. Per contra, learned counsel for the respondent

opposing the revision petition submitted that the revision

preferred by the accused is misleading one. Infact, the

complainant had also preferred Crl.A.No.378/2019 before the

First Appellate Court being aggrieved by the sufficiency of

sentence imposed on the accused. The said criminal appeal

came to be allowed by the trial Court and the fine imposed on

the accused was enhanced. But there is no reference to filing

of Crl.A.378/2019 and allowing of the same by the trial Court

in the entire revision petition. There is deliberate suppression

of these material facts. When there is no challenge to the

judgment of conviction and order of sentence passed in

Crl.A.378/2019, the present revision petition is liable to be

dismissed in limine.

9. Learned counsel further submitted that an

application under Section 311 of Cr.PC was filed by the

accused before the trial Court, seeking to recall PW-1 for

cross-examination. The trial Court passed a detailed order on

the said application. The same was not brought to the notice

of the Court while filing the revision petition. The trial Court

in para Nos.18 to 21 of its judgment explained in detail about

the conduct of the accused in protracting the matter. The

legal notice issued by the complainant was served on the

accused as per Ex.P4. There is no reply by the accused. Since

then, he has never taken any defence in the matter. Even till

today, the accused has not taken any defence. Under such

circumstances, there is no merit in the revision petition and it

is to be dismissed as devoid of merits. Accordingly, he prays

for dismissing the revision petition.

10. In view of the rival submissions made by learned

counsel for both the parties, the point that would arise for my

consideration is:

"Whether the impugned judgment of conviction and order of sentence passed by the trial Court, which is confirmed by the First Appellate

Court suffers from perversity or illegality and calls for interference by this Court?"

My answer to the above point is in the 'Negative' for

the following;

REASONS

11. The accused has preferred this revision petition

specifically contending that he was convicted by the trial

Court in CC No.548/2017 vide judgment of conviction and

order of sentence dated 18.01.2019 and the same was

confirmed by the First Appellate Court in Crl.A.No.346/2019

vide judgment dated 12.10.2021. The prayer in the revision

petition is only to set aside the judgment dated 12.10.2021

passed by the First Appellate Court in Crl.A.No.346/2019 and

also the judgment of conviction and the order of sentence

dated 18.01.2019 passed in CC No.548/2017 by the trial

Court. The respondent has produced certified copy of the

judgment of conviction and order of sentence dated

12.10.2021 passed in Crl.A.No.378/2019, according to which,

the complainant had preferred the said appeal challenging

sufficiency of sentence imposed by the trial Court while

convicting the accused for the offence punishable under

Section 138 of NI Act. The First Appellate Court on re-

appreciation of the materials on record found that even

though the trial Court was right in convicting the accused, the

sentence imposed was not proportionate. Hence the appeal

preferred by the complainant was allowed in part, enhancing

the fine amount to Rs.8,09,250/-.

12. Learned counsel for the accused has not disputed

this fact that the complainant had preferred Crl.A.378/2019

and the said appeal came to be allowed in part, modifying the

order of sentence by imposing fine of Rs.8,09,250/-. There is

absolutely no reason as to why there is no reference to the

said judgment passed by the First Appellate Court on

12.10.2021 i.e., on the very same day when the impugned

judgment in Crl.A.No.346/2019 was passed. According to the

learned counsel for the accused, the accused has not

preferred any other revision other than the present one.

Under such circumstances, it is clear that only the judgment

in Crl.A.No.346/2019 was challenged by the accused. But the

judgment of conviction and order of sentence of even date

passed in Crl.A.No.378/2019 was never challenged by the

accused.

13. Even if the revision petition is to be allowed as

prayed for by the petitioner, the judgment of conviction and

the order of sentence passed in Crl.A.No.378/2019 by the trial

Court, convicting the accused for the offence punishable

under Section 138 of NI Act and sentencing him to pay fine of

Rs.8,09,250/- would be in force, as the same was not

challenged by the accused till date. Therefore, no purpose

would be served even by allowing the present revision

petition.

14. It is the contention of the learned counsel for the

accused that the accused could not cross-examine PW-1 and

lead his evidence before the trial Court and therefore, a

reasonable opportunity is to be given by remanding the

matter to the trial Court by setting aside the impugned

judgment of conviction and order of sentence. As already

discussed above, when the accused has not challenged the

judgment of conviction and order of sentence passed by the

First Appellate Court in Crl.A.No.378/2019, even if, the

impugned judgment of conviction and order of sentence

passed by the trial Court and by the First Appellate Court in

Crl.A.No.346/2019 would not serve any purpose. Moreover,

learned counsel for the complainant produced certified copy of

the order dated 03.01.2019 passed by the trial Court in CC

No.548/17 on the application filed by the accused under

Section 311 of Cr.PC seeking to recall PW-1 for cross-

examination. The trial Court after taking into consideration all

the materials on record and the conduct of the accused,

dismissed the said application. A detailed order came to be

passed on 03.01.2019. The trial Court highlighted the

conduct of the accused before the trial Court in para Nos.18 to

21 which read as under;

"18. Before embarking on other things, I feel it necessary to state the number of adjournments already provided by this court to the accused to proceed with cross examination PW1 has been examined on 21.11.2017, Thereafter the matter posted for further chief examination of PW 1 on 8.2.18, 27.2.18, 26.3.18, 25.4.18 PW 1 has been cross examined partly on 22.10 2018 and in the meanwhile the accused changed his counsel. Since the counsel had appeared on 22.10.18, sought an adjournment for cross examination. Said counsel was accorded with an adjournment.

Further on 30.10.2018, another counsel appeared before the court for accused and sought adjournment to cross examine since he has not obtained instructions from the accused. On these dates of hearing the accused was absent and exemption application filed on behalf of the accused. Further the accused was provided with an opportunity to cross examine PW1 on 30.10.18, 6.11.18, 28.11.18, 6.12.18. But, on

these dates of hearing another counsel for the accused appeared before the court and filed memo of instructions. Despite of this the court provided opportunity to the newly appeared counsel with a direction to proceed for cross examination. But, since the accused counsel did not cross examine Pw1, the stage of cross examination of PW 1 was closed on 6.12.18 and in view of non filing of the vakalath by the newly appointed counsel Sri N.Girish, the court proceeded with the matter and posted the matter for defence evidence by dispensing the recording the statement of the accused u/s.313 Cr.pc.. Subsequently on 10.12.18, the Advocate for the accused Sri N Girish filed 70(2) Cr.p.c application for recall of NBW and also filed memo of undertaking to file the vakalath. Since no vakalath was filed by the counsel only on the grounds of memo of appearance, the application filed ui/s.70(2) CrP.C. was kept in abeyance and the counsel for the accused was directed to keep the accused present on the next date of hearing. But, the stage of defence evidence was kept intact for the reason to provide opportunity to the accused to lead defence evidence. Subsequently on 13.12.18, Advocate Sri.N.G. filed vakalath on behalf of the accused but did not keep the accused present. It is submitted by the counsel for the accused that their defence arguments may be taken as heard since they do not have any defence evidence. Even at this stage, the accused was absent before the court, Hence, after considering this submission made by the Advocate for the accused and after hearing the arguments of the Advocate for the complainant, the matter was posted for judgment. Further on 17.12.18 the case was advanced and accused was present, one new Advocate Sri. K.D.K filed vakalath for the accused along with present application. At the time of submitting the said application, the counsel for the accused submitted that they have served the copy on the other side and the counsel

for the complainant have endorsed as "copy received". They have also sent the copy of the application by post to the counsel for the complainant. Hence NBW was recalled and the matter posted for objections of the complainant to the present application,

19. During the Course of arguments, learned counsel for the complainant submits that neither the complainant nor their colleagues have endorsed as "copy received" on the application. The accused has managed to endorse as "copy received" on the application only to misguide the court. The postal cover sent by the accused for the service of copy to the complainant counsel also shows that it is sent to wrong address. Therefore, the accused has resorted to these activities in order to mislead the court

20. On the other hand, the counsel for the accused submits that whatever address they got in the file of the court, they have issued the copy to the said address by post.

21. All the above mentioned contents of the paragraphs clearly go to show that the accused has kept on changing his counsel and kept on taking adjournment on the grounds of his ill health. Till today no latest document is produced by the accused before this court. Learned previous counsel for the accused Sri. N.Girish appeared before this court on 3 to 4 dates of hearing only on the basis of memo of instructions given by the accused. Subsequently on the date of filing of vakalath, this learned Advocate did not keep the accused present and did not proceed with the cross examination of PW 1. Finally previous learned counsel for the accused Sri N. Girish submitted before the court that their defence arguments may be taken as heard as they do not have any defence evidence to be lead. Noting this submission of the learned

counsel for the accused, the court proceeded to reserve the matter for judgment. Subsequently, new counsel for the accused Sri.KDK argued before the court that the counsel may come and submit anything before the court but parties instructions is necessary. But this arguments canvassed by the learned counsel for the accused does not hold water because the accused has continuously remained absent before the court and the counsel submits before the court as per the instructions given by the party himself. If anything has been submitted by the counsel before the court not favourable to him, subsequently by merely changing the counsel, neither the accused nor his newly appointed counsel can take the stand that the counsel may submit anything he wants but the parties interest has to be considered. The previous counsel appointed by the accused had duly filed vakalath and made submissions before the court.

Therefore, the submission made by the previous counsel for the accused cannot be just ruled out like this. Already, the court has provided ample and sufficient opportunities to the accused considering his health grounds to proceed with the cross examination. Only taking into consideration the health grounds of the accused, even the date of adjournments were given as per the convenience of the accused since the accused himself submitted before the court that he is undergoing some treatment for mental depression and travels all the way from Mumbai. Despite of this, the accused did not utilize the opportunities provided by the court therefore, if any further opportunity is provided to the accused, it will be abuse of process of law. It appears that the accused is not at all serious in proceeding further with the matter. Therefore, under these circumstances, of the case, the learned counsel for the accused has not at all made any satisfactory submission before the court as to why they should be provided an opportunity and why

the stage of the case is to be recalled when posted for judgment Already the matter is reserved for judgment on merits. Hence, in view of this I find no reasons to allow the application filed by the accused to recall PW 1 for further cross examination. Hence, in view of specifically mentioned grounds as stated supra, the application filed by the accused deserves to be rejected on cost. Hence, in view of this I answer Point No.1 in the Negative."

15. Bare reading of this portion of the order passed by

the trial Court discloses the conduct of the accused in

protracting the matter without any valid reasons. It is

pertinent to note that till today, the accused has not taken

any specific defence to deny the contention of the complaint.

16. The materials on record disclose that the

complainant has produced the cheque in question issued by

the accused with his signature as per Ex.P1, which was

dishonoured as per Ex.P2 for insufficiency of funds. Ex.P3 is

the copy of the legal notice got issued by the complainant.

Ex.P4 is the letter issued by the postal department to the

effect that the postal cover addressed to the accused is