Vinod Kumar T R vs B Prashanth Kamath
2023 Latest Caselaw 7325 Kant

                           1

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 26TH DAY OF OCTOBER, 2023

                        BEFORE

      THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

     CRIMINAL REVISION PETITION NO.786 OF 2016
                          C/W
     CRIMINAL REVISION PETITION NO.785 OF 2016
IN CRL.RP.NO.786/2016:
BETWEEN:
1.     VINOD KUMAR T.R.,
       S/O RAMACHANDRA RAO,

2.     RAMESH V.G.,
       S/O VISHNU RAO GUJJAR,

BOTH ARE RESIDENTS OF
NO.82/6, II FLOOR,
AMRUT TOWERS, P.B. ROAD,
DAVANGERE-577 006.
                                        ....PETITIONERS
(BY SRI. SURESH .S. LOKRE, SENIOR COUNSEL FOR
    SRI. SHRAVAN .S. LOKRE, ADVOCATE)

AND:

B. PRASHANTH KAMATH,
AGED ABOUT 39 YEARS,
S/O B. PRABHAKAR KAMATH,
RESIDING AT 'GAYATRI',
ATTUR NORTH, KARKALA,
UDUPI DISTRICT-576 101.
                                        ...RESPONDENT
(BY SRI. P. KARUNAKAR, ADVOCATE)
                            2

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND CONVICTION PASSED BY THE PRL.S.J.,
UDUPI IN CRL.A.NO.62/2014 DATED 28.05.2016 AND
CONSEQUENTLY SET ASIDE THE JUDGMENT OF CONVCTION
PASSED IN C.C.NO.705/2008 DATED 14.10.2014.

IN CRL.RP.NO.785/2016:
BETWEEN:
1.     VINOD KUMAR T.R.,
       S/O RAMACHANDRA RAO,

2.     RAMESH V.G.,
       S/O VISHNU RAO GUJJAR,

BOTH ARE RESIDENTS OF
NO.82/6, II FLOOR,
AMRUT TOWERS, P.B. ROAD,
DAVANGERE-577 006.
                                        ....PETITIONERS
(BY SRI. SURESH .S. LOKRE, SENIOR ADVOCATE FOR
    SRI. SHRAVAN .S. LOKRE, ADVOCATE)

AND:

B. PRASHANTH KAMATH,
AGED ABOUT 39 YEARS,
S/O B. PRABHAKAR KAMATH,
RESIDING AT 'GAYATRI',
ATTUR NORTH, KARKALA,
UDUPI DISTRICT-576 101.
                                        ...RESPONDENT
(BY SRI. P. KARUNAKAR, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND CONVICTION PASSED BY THE PRL.S.J.,
UDUPI IN CRL.A.NO.61/2014 DATED 28.05.2016 AND
CONSEQUENTLY SET ASIDE THE JUDGMENT OF CONVCTION
PASSED IN C.C.NO.135/2008 DATED 13.10.2014 BY THE PRL.
                              3

CIVIL JUDGE AND JMFC, KARKALA AND AWARD THE COSTS
OF THIS CRL.RP.

     THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 04.10.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                           ORDER

These two revision petitions are filed under Section

397 of Code of Criminal Procedure, 1973 (hereinafter

referred to as 'Cr.P.C' for short) challenging the judgment

of conviction and order of sentence passed in

C.C.No.13/2008 and C.C.No.705/2008 on the file of

Principal Civil Judge and JMFC, Karkala and confirmed in

Crl.A.No.61/2014 and Crl.A.No.62/2014 by Principal

Sessions Judge, Udupi.

2. For the sake of convenience, the parties herein

are referred with original ranks occupied by them before

the trial Court.

3. The brief factual matrix leading to the case are

as under

That in pursuance of agreement dated 13.11.2006,

the complainant agreed to purchase iron ore fines from

accused and accused was required to supply 30,000

metric tones of iron ore with 63.5% (Fe contents). The

accused further undertook to supply the same within a

stipulated period of 20 days, but the accused supplied

only 22,685.16 metric tones of iron with 60.09% of Fe.

That the complainant has paid the entire amount of

Rs.5,00,26,000/- to the accused and the accused have

received excess amount of Rs.89,31,067/- from the

complainant. Towards part payment of this amount, the

accused have issued a cheque dated 31.05.2007 for

Rs.25,000/- and a cheque dated 01.03.2008 for a sum of

Rs.63,31,067/- of Corporation bank bearing Nos.552553

and 552554 respectively. When the said cheques were

presented, the same were dishonored on 19.11.2007 and

24.04.2008 respectively for funds insufficient. The

complainant then got issued a legal notice to the accused

dated 06.12.2007 and 02.06.2008 respectively, but

accused failed to repay the cheque amount. Hence, the

complainant has filed two independent complaints against

the accused.

4. The learned Magistrate has taken cognizance

of the matters and registered the cases in

C.C.No.135/2008 and C.C.No.705/2008. In pursuance of

the summons issued, the accused have appeared through

their counsel and they were enlarged on bail. They were

also provided with the prosecution papers under Section

207 of Cr.P.C.

5. In both the cases, one of the authorized

partner's was examined as PW1 and in C.C.No.705

additional witness was examined as PW2. In

C.C.No.135/2008, the complainant has produced 22

documents marked at Ex.P1 to Ex.P22 while in

C.C.No.705/2008; complainant has produced 20

documents marked at Ex.P1 to Ex.P20.

6. After conclusion of the evidence of the

complainant the statement of the accused under Section

313 of Cr.P.C was recorded to enable the accused to

explain the incriminating evidence appearing against him

in the case of the prosecution. The case of accused is of

total denial. In both the cases, the accused No.1 was got

examined himself as DW1 and in C.C.No.135/2008,

Ex.D1 to Ex.D6 were marked while in C.C.No.705/2008

Ex.D1 to Ex.D9 were marked along with Ex.C1, which is

the accounts statement.

7. 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 and

in C.C.No.135/2008, he imposed fine of Rs.41,10,000/-

with default sentence, while in C.C.No.705/2008, he

imposed fine of Rs.93,79,977/- with default sentence.

8. Being aggrieved by these judgments of

conviction and order of sentence, the accused have

preferred Crl.A.No.61/2014 and Crl.A.No.62/2014 on the

file of Principal Sessions Judge, Udupi. The Learned

Sessions Judge after re-appreciating the oral and

documentary evidence has confirmed the judgment of

conviction but modified the sentence by restricting

sentence to Rs.10,000/- in C.C.No.135/2008 and

Rs.1,02,67,979/- in C.C.No.705/2008. Being aggrieved

by these concurrent findings, the accused are before this

court by way of these revisions.

9. As both these cases are arising out of single

transaction and material documents are one and same,

the learned sessions Judge has passed a common order.

Since these matters are arising out single transaction and

considering common Judgment of sessions Judge, these

revision petitions are disposed off by common Judgment.

10. Heard the arguments advanced by the learned

counsel for the revision petitioner/accused and learned

counsel for the respondent / complainant. Perused the

records.

11. The learned counsel for the revision petitioner

would contend that it is an exclusively commercial

transaction and the respondent / complainant is an

exporter of iron ore and agreement in this regard to

supply between accused and complainant is admitted. He

would also contend that as per clause (10) of Ex.P19/

Ex.P16, there is an arbitration clause which is not availed.

He would also invite the attention of the court to

Ex.P18/Ex.P21 and Ex.P19/Ex.P22 and contended that 36

metric tones of iron was supplied, which is in excess and

Rs.63,31,067/- as well as Rs.25 Lakhs are not legally

enforceable debt. He would also assert that the reliance

was placed on Ex.D1, but Ex.D1 was obtained by force

and coercion and ledger extract disclose that only there is

outstanding due of Rs.42,30,000/- and he has already

paid Rs.20 Lakhs. He has also invited the attention of the

clause regarding finality of SGS report. He would also

contend that how this liability arrived is not explained and

he invited the attention of the court to Ex.D17. He would

also contend that the account extract discloses that

supply continued till July and final settlement was made

for Rs.20 Lakhs, which is paid on 22.08.2001, which is

evident from Ex.D3 and admitted by PW1. He invites the

attention of the court to ex.P15 in this context. According

to him, Ex.P15 is required to be read with Ex.P18 and

Ex.P19 and hence, he would contend that excess iron ore

is supplied and Ex.D1 cannot be relied. Hence, he would

assert that both the courts have failed to appreciate the

oral and documentary evidence in its proper perspective

and erroneously convicted the accused. Hence, he would

seek for allowing these revisions by setting aside the

impugned judgments of conviction passed by both the

courts below.

12. Per contra, the learned counsel for the

respondent contended that that as per agreement,

Ex.P19/Ex.P16 a total of 30,000 metric tones is required

to be supplied by the accused within 20 days with 63.5%

of Fe content iron ore fines. He would further assert that

only 22,685 metric tones of iron ore fines were supplied,

which is evident from reply notice Ex.P11/Ex.P10. He

would contend that all along the learned counsel for the

revision petitioner argued regarding supply of 36,000

metric tones relying on Ex.P18/Ex.P15 and

Ex.P21/Ex.P18, however, the reply notice and admitted

fact disclose that only 22 metric tones of iron ore came to

be supplied and admittedly, the entire payment of more

than Rs.5 Crores was made for 30,000 metric tones of

iron ore and hence, he would assert that there is an

excess payment of more than Rs.89 Lakhs and on the

basis of this, agreement under Ex.D1 came to be entered.

He would also assert that Ex.P15 relied cannot be

considered as the name of the party does not appear

there and accused cannot take advantage of this aspect.

Further, he would submit that when the accused himself

admits in his reply notice regarding supply of only around

22 metric tones of iron ore, question of now arguing that

supply of excess iron ore does not arise at all and no such

case is put forward during the trial. Hence, he would

contend that both the courts below have rightly convicted

the accused and hence, he would seek for dismissal of

the revisions.

13. Having heard the arguments and on perusing

the records, now the following point would arise for my

consideration:

"Whether the judgments of conviction and orders of sentence passed by the trial court and confirmed by the appellate court with some modification are perverse, arbitrary and erroneous so as to call for any interference by this court?"

14. The undisputed facts in this case are that

there was an agreement between the complainant and

the accused on 13.11.2006 for supply or 30,000 metric

tones of iron ore fines of 63.5% Fe content within 20

days. Further, the reply notice does establish that

accused have only supplied 22,685.16 metric tones of

iron ore. It is further admitted that the accused have

received total amount of Rs.5,26,00,000/- from

complainant towards supply of 30,000 metric tones of

iron ore. The agreement in this regard is produced at

Ex.P19/Ex.P16. There is no dispute regarding this

agreement.

15. It is the contention of the respondent /

complainant that excess amount of Rs.89,31,067/- was

paid to the accused and towards repayment, these

cheques for Rs.25 Lakhs and Rs.63,31,067/- came to be

issued in pursuance of agreement, Ex.D1. Interestingly,

Ex.D1 was got marked by the accused during the cross-

examination of PW1 by way of confrontation. This is

dated 24.04.2007 and claim of the complainant is based

on this document.

16. All along, before this court, the learned

counsel for the revision petitioner has argued regarding

excess supply and invites the attention of the court to

Ex.P15, Ex.P18 and Ex.P19. However, in view of the

admitted fact of supply of only 22,685 metric tones of

iron ore as admitted in the cross-examination as well as

in reply notice, these arguments regarding supply of

excess iron ore does not have any relevancy.

17. The other contention raised by the accused is

regarding final settlement for Rs.20 Lakhs and he making

payment of Rs.20 Lakhs in three installments. The

payment of Rs.20 Lakhs is not in serious dispute.

However, there is no evidence placed by the accused /

revision petitioner to show that there was a settlement

for Rs.20 Lakhs as asserted by him. However, DW1 in his

cross-examination has admitted Ex.P16/Ex.P13, which is

the accounts statement maintained by the complainant

pertaining to accused. DW1 admitted that he has seen

Ex.P16 and understood the entries and calculation made

in it. He has also admitted the contents as Ex.P16/Ex.P13

which clearly establish that the balance was

Rs.88,31,067/-.

18. During the cross-examination of PW1, Ex.D1

was confronted, which is a copy of agreement dated

24.04.2007. On perusal of Ex.D1, it is evident that the

said agreement entered between by the accused on

behalf of S.S. Minerals with complainant on 24.04.2007

and there is reference of agreement dated 13.11.2006

marked at Ex.P19/Ex.P16. Under Ex.D1, there is an

admission that the iron ore supplied was only to the tune

of 22,685.16 metric tones of 60.09% Fe content and

payment of Rs.5,26,00,000/- was received in excess of

Rs.89,31,067/-. Further, under Ex.D1 there is an

agreement wherein accused agreed to pay Rs.25 Lakhs

each on 10.05.2007 and 31.05.2007 and balance of

Rs.38,31,067/- on 30.06.2007.

19. It is the specific contention of the accused that

Ex.D1 was got executed forcibly by coercive methods.

However, Ex.D1 was got marked by defence counsel on

behalf of accused during the cross-examination of PW1,

which is a notarized copy and admitted by PW1. Hence, it

is evident that Ex.D1 was in custody of the accused all

along. The accused have not issued any legal notice or

initiated any steps to the effect that Ex.D1 was obtained

either by forcible means or coercive methods. Except a

formal assertion in the evidence, no material is placed to

substantiate this aspect and no steps were also taken in

this regard. Hence, the said contention of the accused in

this regard cannot be accepted.

20. The other relevant document is at

Ex.P20/Ex.P17. This document is confronted to DW1,

wherein there is reference of payment of Rs.25 Lakhs and

balance of Rs.63,31,067/-. Further, there is a reference

of cheque dated 31.05.2007. The contents of

Ex.P20/P17 are not at all denied by the accused and he

never disputed the contents thereof. Hence, all these

documents clearly establishes that the accused is

required to pay Rs.63,31,067/- and Rs.25 Lakhs to the

complainant towards excess payment made in pursuance

of the original agreement. These cheques under

Ex.P1/Ex.P3 were issued towards legally enforceable

debt. The accused is taking an untenable defence in this

revision regarding supply of excess iron ore, which is

nobody's case. Subsequent supply of iron ore till July has

no relevance with this transaction. Hence, both the courts

below have appreciated the oral and documentary

evidence in its proper perspective and have rightly

convicted the accused. No illegality or perversity is found

in the conviction order passed by both the courts below.

21. In C.C.No.135/2008, the conviction was for

Rs.41,10,000/- and the Learned Sessions Judge after

taking into note the subsequent payments, has restricted

it only to Rs.10,000/-. This order of reducing the

sentence is not challenged by the complainant. Hence,

the modification by the Learned Sessions Judge so far as

it relates to C.C.No.135/2008 does not call for any

interference.

22. However, in C.C.No.705/2008, the learned

Magistrate has imposed fine of Rs.93,79,977/- with a

default sentence of six months. This judgment of

conviction and order of sentence is challenged only by the

accused in Crl.A.No.62/2014 before the Principal Sessions

Judge. Admittedly, the complainant has not challenged

this judgment of conviction and imposition of sentence.

However, in the absence of any counter appeal by the

complainant, the Learned Sessions Judge in the appeal

enhanced the sentence of fine in C.C.No.705/2008 from

Rs.93,69,977/- to Rs.1,02,67,979/-. When the

complainant has not challenged the sentence portion, the

Learned Sessions Judge should not have exercised his

discretion in the appeal to enhance the sentence without

there being a counter appeal. This order of the Learned

Sessions Judge is erroneous and arbitrary and calls for

interference by restoring the order of sentence passed by

the learned Magistrate in C.C.No.705/2008.

23. In view of these facts and circumstances, the

point under consideration is partly answered in the

affirmative so far as it relates to sentence portion

modified by the appellate court pertaining to

C.C.No.705/2008 alone. Hence, I proceed to pass the

following:

ORDER

(i) The Crl.R.P.No.785/2016 stands dismissed.

(ii) The Crl.R.P.No.786/2016 is partly allowed.

(iii) The impugned judgment of conviction passed in C.C.No.705/2008 on the file of Principal Civil Judge and JMFC, Karkala and confirmed in Crl.A.No.62/2014 by Principal Sessions Judge, Udupi are confirmed.

     (iv)    However, order of sentence modified by the
             Principal        Sessions          Judge            in
             Crl.A.No.62/2014 is set aside                and the

sentence of fine imposed by the Principal Civil Judge and JMFC, Karkala in C.C.No.705/2008 stands restored.

(v) Send back the records to the trial court for recovery of the arrears of fine.

(vi) The amount in deposit shall be paid to the complainant / respondent herein.

(vii) The original shall be kept in Crl.r.P.No.785/2016 and a copy thereof shall be kept in the connected petition i.e., Crl.R.P.No.786/2016

Sd/-

JUDGE SS