Karnataka High Court
Diksha Solutions vs Sri D Krishnappa on 9 January, 2024
1 CRL.RP NO.448 OF 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL REVISION PETITION NO.448 OF 2020
BETWEEN:
DIKSHA SOLUTIONS
(A UNIT OF SHRI. KRISHNA MINERALS)
REP. BY ITS PROPRIETOR
SANTHOSH DIWAKAR
S/O DIWAKAR EK
AGED ABOUT 39 YEARS
OFFICE ADDRESS
NO.1, 7TH CROSS, CENTRAL STREET
KUMARAPARK WEST
BENGALURU - 560 034
...PETITIONER
(BY NITHIN GOWDA K C, ADVOCATE FOR
SRI. PRASANNA KUMAR P, ADVOCATE)
AND:
SRI D KRISHNAPPA
S/O LATE DODDAPUTAPPA
40 YEARS
R.AT NO.287, K NARAYANAPURA
KOTHANUR POST
BENGALURU EAST TALUK
BENGALURU - 560 077
.....RESPONDENT
(BY SRI. PRADEEP NAIK K, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C BY PRAYING TO SET ASIDE THE ORDER DATED
01.02.2020 PASSED BY THE LXVII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU (CCH-68) IN
CRL.A.NO.964/2019 THEREBY CONFIRMING THE JUDGMENT
DATED 16.03.2019 PASSED BY LEARNED XIII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN
2 CRL.RP NO.448 OF 2020
C.C.NO.13791/2017 AND; b) PASS SUCH OTHER ORDER OR
ORDERS AS DEEMED FIT IN THE CIRCUMSTANCES OF THE
CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 06.11.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
Being aggrieved by his conviction and sentence
imposed by the trial Court for the offence punishable
under Section 138 of N.I Act, which came to be
confirmed by the Sessions Court by dismissing the appeal
filed by him, petitioner who is accused, is before this
Court in the petition filed under Section 397 r/w 401
Cr.P.C.
2. For the sake of convenience, the parties are
referred to by their rank before the trial Court.
3. Complainant filed a complaint under Section
200 Cr.P.C against accused for the offence punishable
under Section 138 of N.I Act, contending that he is a
practising advocate. Accused who is the Proprietor of
Diksha Solutions, which is the unit of Sri Krishna
minerals approached complainant through his cousin Ravi
Kumar and his friend Dr. Kiran Kumar, with a request for
hand loan of Rs.6 lakhs to meet his business
requirements. Complainant deposited Rs.6 lakhs into the
account of accused through his friend's account number
195310100000089, Andhra Bank Tanisandra branch,
Bengaluru-560077. Accused promised to return the said
amount before 20.02.2017 and issued a post dated
24.02.2017 cheque for a sum of Rs.6 lakhs drawn on his
account and assured payment on presentation on
11.04.2017.
3.1 However, when presented through his
account, it was returned dishonoured on the ground of
"Funds insufficient. When complainant informed the
accused about the dishonour of cheque, he sent SMS
stating that he would pay the amount on 24.04.2017, but
failed. On 24.04.2017, once again accused requested for
two days time and again failed to keep up the promise.
Without any alternative complainant got issued legal
notice to the accused. Though duly served accused has
neither paid the amount due under the cheque nor sent
reply and hence the complaint.
4. After due service of summons, accused
appeared through counsel and contested the matter. He
has taken up a plea that Sri Krishna Minerals is a
partnership firm of which he is the sleeping partner and
one Kaleem Ahmed is the managing partner. Without
arraigning the firm, the complaint is not maintainable.
Accused has disputed that he borrowed a sum of Rs.6
lakhs from complainant requesting through Ravi Kumar
and Dr. Kiran Kumar and that the accused has credited
the said amount through the account of his friend. He
has alleged that Mr Kaleem Ahmed partner of accused
has handed over signed blank cheque of accused to the
complainant and facilitated filing of the complaint and
sought for dismissal of the same.
5. At the trial, complainant got himself examined
as PW-1. He has relied upon Ex.P1 to 10.
6. During the course of his statement under
Section 313 Cr.P.C, the accused has denied the
incriminating evidence led by the complainant.
7. In fact, the accused has also stepped into the
witness box by examining himself as DW-1. He has relied
upon Ex.D1 and 2.
8. Vide the impugned judgment and order, the
trial Court convicted the accused and sentenced him to
pay a fine of Rs.6 lakhs in default to undergo
imprisonment for a period of one year.
9. Challenging the same the accused filed appeal
before the Sessions Court. However, Sessions Court also
dismissed the appeal filed by the accused and thereby
confirming the judgment and order of the trial Court.
10. Being aggrieved by the same, the accused is
before this Court, contending that the impugned
judgment and order of the trial Court as well as the
Sessions Court are highly arbitrary, illegal, contrary to
law, facts and material placed on record and as such
liable to be set aside. Both Courts have erred in
convicting the accused, though he has proved that there
was no legally enforceable debt or liability, Ex.P1 is
issued by the authorised signatory of M/s Sri Krishna
Minerals. It has nothing to do with Diksha solutions.
Krishna minerals is not arraigned as party. Both Courts
have not appreciated this aspect and thereby slipped into
error.
10.1 Even otherwise, the alleged amount of Rs.6
lakhs was transferred from the account of one
Byregowda to the account of M/s Krishna Minerals.
Accused has not received any amount from the accused.
The entire affair of M/s Krishna Minerals is handled by
Saleem Ahmed and therefore prosecution of accused is
misconceived. Having regard to the fact that there was
no transaction between the complainant and accused, the
presumption under Section 139 of N.I Act is not
attracted. The complainant has also failed to prove his
financial capacity and therefore presumption under
Section 139 of N.I Act is not attracted and therefore the
burden is not shifted on the accused. Without
appreciating these aspects, the trial Court and Sessions
Court have convicted the accused solely on the basis of
presumption under Section 139 of N.I Act and prays to
allow the petition, set aside the judgments and orders of
the trial Court as well as the Session Court.
11. In support of his arguments, learned counsel
for accused has relied upon the following decisions:
(i) Shiva Murthy Vs. Amruthraj (Shiva Murthy)1
(ii) Bhupinder Singh Bhogal Vs.
G.E.Capital Transportation Financial
Services Ltd(Bhupinder Singh)2
(iii) Aneeta Hada Vs. Godfather Travels and Tours
Pvt. Ltd (Aneeta Hada)3
(iv) Basalingappa Vs. Mudibasappa
(Basalingappa)4
(v) Alka Khandu Avhad Vs. Amar Syamprasad
Mishra and Anr. (Alka Khandu)5
(vi) Dilip Hariramani Vs. Bank of Baroda
(Dilip Hariramani)6
ILR 2008 KAR 4629
2010 SCC Online Del 4423
(2012) 5 SCC 661
(2019) 5 SCC 418
(2021) 4 SCC 675
2022 SCC Online SC 579
(vii) Ashok Shewakramani and Ors Vs. State of
Andhra Pradesh and Anr.
(Ashok Shewakramani)7
(viii) APS Forex vs Shakti International Fashion
Linkers Pvt. Ltd (APS Forex)8
12. On the other hand, learned counsel
representing the complainant has supported the
judgment and order of the trial Court and Sessions Court
and sought for dismissal of the petition.
13. In support of his arguments, learned counsel
for complainant has relied upon the following decisions:
(i) Sri Bhagavathi Textiles Ltd Vs.
Lakshmi Textile Brokers & Ors (Bhagavathi
Textiles Ltd.)9
(ii) Crystal Chemical Industries Vs.
Jips Dyechem Industries & Ors.
(Crystal Chemical Industries)10
(iii) Oriental Bank of Commerce Vs.
Prabodh Kumar Tewari (Oriental Bank
of Commerce)11
(iv) H.N.Nagaraj Vs. Suresh Lal Hira Lal
(H.N.Nagaraj)12
(2023) 8 SCC 473
(2020) 12 SCC 724
(2000) 10 SCC 457
2002(111) Comp Cas 559: 2003(1) ISJ (Banking) 667
2022 Live Law (SC) 714
2023 (2) KCCR 1396
14. Heard arguments of both sides and produce
the record.
15. Thus, it is the definite case of the complainant
that at the request of accused he got transferred a sum
of Rs.6 lakhs to the account of accused through the
account of his friend Byregowda and towards repayment
of the same accused has issued the cheque in question,
which on presentation came to be dishonoured for want
of sufficient funds. Though accused admit that the
cheque in question bear his signature, he has claimed
that it is a cheque supplied to the account of Sri Krishna
Minerals and it is a partnership firm of which he is a
sleeping partner and one Kaleem Ahmed is the managing
partner and he has handed over signed blank cheque and
facilitated complainant to file a false complaint. Without
arraigning the firm, complaint is not maintainable.
16. So far as the claim of the accused that Sri
Krishna Minerals is a partnership firm is concerned,
during his cross-examination, accused has admitted that
he is the Proprietor of Diksha Solutions and its name is
Diksha solutions (A unit of Sri Krishna Minerals.) Though
accused has claimed that the legal notice was not served
on him, during his cross-examination, he has admitted
that it is received by Sanjay who is the Manager of
Diksha solutions. He has also stated that after receipt of
legal notice, his friend, Markhandaiah had gone to the
complainant to enquire at whose instance, cheque is
bounced.
17. This piece of evidence prove that the notice is
duly served on the accused. He has not sent any reply
claiming that Sri Krishna Minerals is a partnership firm
etc. Therefore, the say of the accused that Shri Krishna
Minerals is a partnership firm and therefore without
arraigning the firm, complaint is not maintainable cannot
be accepted. Consequently, the decisions In Aneeta
Hada, Dilip Hariramani, Ashok Shewakramani are
not applicable to the case on hand. Thus, through the
material placed on record, the complainant has proved
that Diksha solutions is a Proprietorship concern and Sri
Krishna Minerals is a unit of the same and accused is the
authorised signatory and the cheque in question bears
his signature as authorised signatory.
18. Now coming to the case of complainant that
accused approached him through his cousin Ravi Kumar
and friend Dr.Kiran Kumar and requested for financial
assistance in a sum of Rs.6,00,000/- and that he has
paid the said amount by crediting it from the account of
Byregowda. In the complaint, the complainant has given
the details of account number through which Rs.6 lakhs
was credited to the account of Sri Krishna Minerals.
However, he has not disclosed the name of the friend
through whose account he paid Rs.6 lakhs to the account
of accused. Only during the course of evidence, he has
disclosed the name of his friend as Byregowda.
19. However, the complainant has not examined
either Byregowda who credited the said amount to the
account of accused at the request of complainant or Ravi
Kumar and Dr.Kiran Kumar on whose recommendations,
he did so. The least complainant could have done was to
examine these persons, more particularly Byregowda
who credited Rs.6 lakhs to the account of Sri Krishna
Minerals at the request of complainant. It is pertinent to
note that on 20.01.2017, four credits are made to the
account of Sri Krishna Minerals and in fact, the account
at Ex.D1 and D2 makes it clear that during the course of
business, several credits and debits have been made into
the account and from the account of Sri Krishna Minerals
and Diksha solutions.
20. The evidence of said Byregowda would have
clarified whether this credit of Rs.6 lakhs made from his
account is on account of business with Sri Krishna
Minerals or at the instance of complainant. In the
absence of such evidence, it cannot be accepted that
credit of Rs.6 lakhs from the account of Byregowda is at
the instance of complainant. If at all, complainant wanted
to help the accused, he could have got the amount from
Byregowda and then transferred it to the accused. Then
things would have been different. Anyhow, at least he
could have examined Byregowda and also Ravi Kumar or
Dr. Kiran Kumar to prove that on their recommendations,
he choose advance of Rs.6 lakhs to the accused, through
the account of Byregowda.
21. The complainant has also led evidence to
show that as per Ex.P8, he has credited a sum of
Rs.1,50,000/- and as per Ex.P9 he has credited a sum of
Rs.1,00,000/- to the account of Byregowda. According to
the complainant, he has pledged gold ornaments for sum
of Rs.1,22,400/- and paid the amount to said
Byrewgowda. Whether the amount credited through
Ex.P8 and 9 is towards repayment of Rs.6 lakhs credited
from the account of Byregowda to the account of accused
and whether sum of Rs.1,22,400/- received from
pledging of gold ornaments was also paid to the said
Byregowda is to be spoken to by him. In the absence of
his evidence, the complainant has failed to establish that
Rs.6 lakhs credited to the account of Sri Krishna
Minerals from the account of Byregowda was for and on
behalf of complainant. In the absence of proof of the said
fact it probabalise the defence of accused that a signed
cheque belonging to him is handed over by Kaleem
Ahmed to the complainant and utilising it he has filed the
complaint. The fact that cheque in question bears
different handwriting also supports his defence.
22. The trial Court as well as the Sessions Court
without examining these aspects have proceeded to
convict the accused only on the basis of presumption
under Sections 118 and 139 of the N.I Act. The
impugned judgments and orders have caused gross
miscarriage of justice and suffers from manifest illegality.
The findings of the trial Court and Sessions Court are
contrary to the evidence placed on record and as such
perverse. It is a fit case to interfere in exercise of power
under Section 397 r/w 401 Cr.P.C. In the result, the
petition succeeds and accordingly the following:
ORDER
(i) Petition filed by the petitioner under
Section 397 r/w 401 Cr.P.C is allowed.
(ii) The impugned judgment and order dated
16.03.2019 in C.C.No.13791/2017 on the
file of XIII ACMM, Bengaluru and judgment
and order dated 01.02.2020 in
Crl.A.No.964/2019 on the file of LXVII
Addl.City Civil and Sessions Judge,
Bengaluru are set aside.
(iii) Consequently, the accused is acquitted for
the offence punishable under Section 138
of N.I Act. His bail bond stand discharged.
(iv) The Registry is directed to send back the
trial Court as well as Sessions Court
records along with copy of this order
forthwith.
Sd/-
JUDGE
RR
