Karnataka High Court
Mahaveer Jindatta Kante vs Ramesh Chandrakant Shrikande on 12 January, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 100203 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100203 OF 2015 (397)
BETWEEN:
MAHAVEER JINDATTA KANTE
AGE : 54 YEARS, OCC : BUSINESS,
R/O : "KAVLYANJAI" 20161,
KORE GALLI, BELAGAVI.
...PETITIONER
(BY SRI. VITTHAL S. TELI, ADVOCATE)
AND:
RAMESH CHANDRAKANT SHRIKANDE
AGE : 56 YEARS, OCC : SERVICE,
R/O : FF-3, MALLIKARJUN APARTMENTS,
BHAGYANAGAR, ANGOL, BELAGAVI.
...RESPONDENT
(BY SRI. SADYOJAT R. BALLIGATTIMATH, ADVOCATE FOR
SRI. MRUTYUNJAY TATA BANGI)
THIS CRIMINAL PETITION IS FILED U/S 397 R/W SECTION
Digitally
VIJAYALAXMI signed by
M BHAT VIJAYALAXMI
401 OF CR.P.C. SEEKING TO SET SAIDE THE JUDGMENT DATED
M BHAT
28/07/2015 IN CRIMINAL APPEAL NO.106/2013 BY THE VI ADDL.
DISTRICT AND SESSION JUDGE, BELAGAVI WHEREIN CONFIRMED
THE JUDGEMNET DATED 05/07/2013 PASSED BY THE III ADDL.
CIVIL JUDGE AND JMFC-BELAGAVI IN CC NO.1359/2010 FOR
OFFENCE PUNISHABLE U/S 138 OF N.I.ACT.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.RP No. 100203 of 2015
ORDER
1. This revision petition under Section 397 r/w 401
of Cr.P.C., is filed with a prayer to set aside the judgment
and order of conviction and sentence dated 05.07.2013
passed by the Court of III Additional Civil Judge and JMFC,
Belagavi in CC No.1359/2010 and the judgment and order
dated 28.07.2015 passed by the VI Additional District and
Sessions Judge, Belagavi, in Crl.A.No.106/2013.
2. Heard the learned counsel for the parties.
3. The complainant and the accused are
acquainted to each other. The complainant is working in a
bank and he intended to sell his house property bearing
RS No.47/A/2 situated at Bhagyanagar, Angol, Belagavi.
The accused had purchased the said property under the
registered sale deed and the possession of the property
was also handed over to the accused. Since the
complainant had requested the accused to permit him to
reside in the house till he finds a alternative
accommodation, under a rental agreement dated
13.01.2007, accused had permitted the complainant to
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reside in the house for a period of two months. According
to the complainant, sum of Rs.3,55,000/- was paid as
interest free security deposit which was required to be
repaid at the time of vacating the house. After two
months, complainant had vacated the house and the
accused towards payment of the amount of Rs.3,55,000/-
issued two cheques for Rs.3,25,000/- and 30,000/-
respectively on 16.03.2007 which was drawn on Bank of
India, Shahapur branch. The said cheques, on
presentation for realization were dishonoured by the
drawee bank. Thereafter, the complainant got issued legal
notice to the accused and after receipt of reply from the
accused, he has filed a private complaint against the
accused for the offence punishable under Section 138 of
N.I. Act. The accused had pleaded not guilty and claimed
to be tried before the jurisdictional Magistrate.
4. In order to prove the case of the complainant,
he examined himself as PW1 and had got marked 9
documents as Exs.P1 to P9. Thereafter, the statement of
the accused under Section 313 of Cr.P.C. was recorded.
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However, accused did not lead any defence evidence. The
trial Court by its judgment and order dated 05.07.2023
convicted the accused for the offence punishable under
Section 138 of N.I. Act and sentenced him to pay fine of
Rs.3,55,000/- in default of payment of fine to undergo
simple imprisonment for a period of six months. The said
judgment and order of conviction and sentence was
confirmed in Crl.A.No.106/201 by the Court VI Additional
District and Sessions Judge, Belagavi, vide order dated
28.07.2015. Therefore, the petitioner is before this Court.
5. Learned counsel for the petitioner submits that
cheques were issued from the account of partnership firm
of Kavyanjali. The said firm is not a party to the
proceedings. Therefore, the petitioner could not have
been convicted. He submits that the petitioner was not
given sufficient opportunity to lead defence evidence.
Accordingly, he prays to allow the petition.
6. Per contra, the learned counsel for the
respondent has argued in support of the impugned
judgment and order passed by the Courts below and
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submits that the issuance of cheque is not in dispute.
Petitioner has not put forward any proper defence and he
has not rebutted the presumption available against him.
Therefore, the courts below were justified in convicting the
accused. Accordingly, he prays to dismiss the petition.
7. From perusal of the oral and documentary
evidence available on record, it is seen that the issuance
of cheques in question by the accused is not in dispute and
the signature found in cheques is also not in dispute. It is
the specific defence of the accused that the cheques in
question i.e. Ex.P1 and P3 were not issued towards any
debt or liability. It is also his case that he had not entered
into in any rent agreement as per Ex.P9 dated
13.01.2007. The said defence is not established by the
accused by placing any cogent material before the Court.
Further from a comparison of the admitted signature with
the signature found in the rent agreement- Ex.P9, it can
be clearly said that the signature found in the document at
Ex.P9 is of the accused. A reading of Ex.P9 would go to
show that interest free security deposit was collected by
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the accused from the complainant under the said
agreement and it was specifically agreed that at the time
of vacating the premises, the aforesaid amount of
Rs.3,55,000/- would be refunded. Neither in his reply
notice-Ex.P8, nor in his statement under Section 313 of
Cr.P.C., the accused has put forward any probable
defence. The contention of the accused that Exs.P1 and
P3-cheques were given as security while entering into sale
transaction of the property in question has not been
proved by him, by producing satisfactory evidence before
the Court
8. On the other hand, complainant has prima facie
proved the fact that the cheques were issued by the
accused towards discharge of legally recoverable debt and
presumption that arises against the accused under Section
139 of N.I. Act was not rebutted by the accused.
Therefore, the Courts below were justified in convicting
the accused/petitioner for the offence punishable under
Section 138 of N.I. Act.
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9. A perusal of the order sheet of the trial Court
would go to show that sufficient opportunity was given to
the accused for leading defence evidence. However, he
had not ustilsed the same. From a reading of Ex.P9-rent
agreement, it is seen that the said agreement was
executed between the accused, his son and the
complainant. The partnership firm namely, Kavyanjali was
not a party to this agreement. A reading of Section 141 of
N.I. Act 1981 would go to show that when the actual
offence has been committed by a company or firm, then
the company as well as the persons who are in charge or
responsible for the conduct of the business of company are
required to be arraigned as accused. The cheques in
question do not bear the seal of the partnership firm, nor
it is the case of the accused that the cheques were signed
by him in his capacity as partner of the firm. No such
defence has been taken by him at any stage before the
trial Court or before the Appellate Court and for the first
time such a contention is raised by the accused before this
Court. It is also brought to the notice of this Court that
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entire fine amount has been deposited by the accused
before the trial Court. The scope of interference under
Section 397 of Cr.P.C. in a case where concurrent findings
has been recorded by the Courts below is very narrow.
10. Under the circumstances, I am of the view that
no interference is called for as against the impugned
judgment and order of conviction and sentence passed by
the courts below. Accordingly, revision petition is
dismissed.
Sd/-
JUDGE
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