Karnataka High Court

Satyanarayana N @ Satish vs M/S Abc Enterprises on 2 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                    NC: 2024:KHC:24811
                                               CRL.RP No. 1048 of 2021




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 02ND DAY OF JULY, 2024

                                     BEFORE
                   THE HON'BLE MR JUSTICE V SRISHANANDA
                CRIMINAL REVISION PETITION No.1048 OF 2021
            BETWEEN:

            SATYANARAYANA N @ SATISH
            S/O NANJAPPA,
            AGED ABOUT 48 YEARS,
            PROPRIETOR/OWNER,
            SRI BANASHAKARI CHIKEN SUPPLIER,
            R/O NO.24, 8TH MAIN ROAD,
            1ST CROSS, NEAR NEW OATY CONVENT SCHOOL,
            ANNATHAPURA, YALAHANKA,
            BENGALURU-560064.
                                                        ...PETITIONER
            (BY SRI G.C.SHANMUKHA, FOR SRI S.B.HALLI, ADVOCATES)
            AND:

            M/S ABC ENTERPRISES
            HAVING ITS OFFICE AT NO.106,
            NEAR HK, HOSPITAL,
Digitally   MYSORE ROAD, KENGERI,
signed by R BENGALURU-560060.
MANJUNATHA
            REPT. BY ITS MANAGING PARTNER,
Location:
HIGH COURT NARAYANA S.
OF                                                      ...RESPONDENT
KARNATAKA (BY SRI G.N.SUBRAMANI, ADVOCATE)
                  THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C
            PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
            SENTENCE PASSED BY THE LEARNED 64th ADDITIONAL CITY CIVIL
            AND     SESSIONS      JUDGE    (CCH-65),   BANGALORE     IN
            CRL.A.NO.1089/2019 DATED 31.12.2020 BY CONFIRMING THE
            JUDGMENT OF CONVICTION AND ORDER OF SENTENCE PASSED BY
            THE XLII ACMM, BANGALORE IN C.C.NO.10538/2018 DATED
            09.04.2019 AND ACQUIT THE PETITIONER FOR THE ALLEGED
            OFFENCE.
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                                             NC: 2024:KHC:24811
                                      CRL.RP No. 1048 of 2021




     THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:

                             ORDER

Sri G.C.Shanmukha, advocate for Sri Shanthappa

Basappa Halli, learned counsel for the petitioner and Sri

G.N.Subramani, learned counsel for the respondent.

2. The present revision petition is filed by the

revision petitioner challenging the order of conviction and

sentence passed in C.C. No.10538/2018 dated 09.04.2019

on the file of the XLII Addl. Chief Metropolitan Magistrate,

Bengaluru City, which was confirmed in Criminal Appeal

No.1089/2019 dated 31.12.2020 on the file of the LXIV

Addl. City Civil and Sessions Judge (CCH-65), Bengaluru,

for the offence punishable under Section 138 of the

Negotiable Instruments Act, whereby, accused was

directed to pay fine in a sum of Rs.3,05,000/-, out of

which Rs.3,00,000/- was ordered to be paid as

compensation to the complainant and balance sum of

NC: 2024:KHC:24811

Rs.5,000/- was ordered to be paid as defraying expenses

to the State.

3. Brief facts of the case which are utmost

necessary for disposal of the revision petition are as

under:

Case of the complainant is that complainant being a

registered partnership firm, is in the wholesale business of

distribution of chicken and in that regard, accused had a

transaction and passed on a cheque which is marked at

Ex.P.4, towards the legally recoverable debt, which is an

amount towards purchase of chicken and said cheque on

presentation, came to be dishonored and there was no

reply to the callings of the notice. Therefore, complainant

sought for action against the accused.

4. The learned Trial Magistrate after taking

cognizance, secured the presence of the accused and

recorded the plea. Accused pleaded not guilty. Therefore,

trial was held.

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5. In order to prove the case of the complainant,

Narayana S., Managing Partner got examined himself as

P.W.1 and one more witness by name John Peter was

examined as P.W.2. As many as twelve documentary

evidence were placed on record, which were exhibited and

marked as Exs.P.1 to P.12 comprising of certified copy of

registration of the Firm as Ex.P.1, certified copy of the

confirmation regarding cheque as Exs.P.2 and 3, cheque

as Ex.P.4, bank memo as Ex.P.5, office copy of the legal

notice as Ex.P.6, postal acknowledgment as Ex.P.7,

complaint as Ex.P.8, statement of account as Ex.P.9, 26

invoices as Ex.P.10, certified copy of the tax returns as

Ex.P.11 and certified copy of partnership deed as Ex.P.12.

6. As against the evidence placed on record by the

complainant, accused got examined himself as D.W.1 and

marked cover as Ex.D.1.

7. Thereafter, the learned Trial Magistrate

recorded the accused's statement as is contemplated

under Section 313 of the Code of Criminal Procedure

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wherein, the accused has denied all the incriminatory

circumstances.

8. Subsequent there to, learned Trial Judge heard

the arguments of the parties in detail and after considering

the oral and documentary evidence placed on record,

convicted the accused for the offence punishable under

Section 138 of the Negotiable Instruments Act and

imposed sentence as referred to supra.

9. Being aggrieved by the said order of conviction

and sentence passed by the learned Trial Magistrate, the

accused preferred an appeal before the First Appellate

Court in Criminal Appeal No.1089/2019.

10. The learned Judge in the First Appellate Court

after securing the records and hearing the arguments, vide

judgment dated 31.12.2020, dismissed the appeal and

confirmed the order of conviction and sentence.

11. Being further aggrieved by the same, the

accused is before this Court.

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12. Reiterating the grounds urged in the revision

petition, Sri.S.B.Halli, learned counsel for the revision

petitioner vehemently contended that cheque was actually

issued to the hands of John Peter towards the security and

same has been misused by John Peter by handing over the

same to the complainant firm. Therefore, there was no

legally recoverable debt involved in Ex.P.4 and same has

not been properly appreciated by learned Trial Magistrate

while convicting the accused and not considered by

learned Judge in the First Appellate Court, resulting in

miscarriage of justice and thus, sought for allowing the

revision petition.

13. He further pointed out that there is no proper

service of notice and therefore, offence punishable under

Section 138 of the Negotiable Instruments Act has not

been committed by the accused.

14. Per contra, Sri.G.N.Subramani, learned counsel

for the respondent supports the impugned judgments.

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15. Having heard the parties in detail, this Court

perused the material on record meticulously.

16. On such perusal of the material on record, it is

crystal clear that the cheque is that of the accused and

signature found therein is also that of the accused.

According to the accused, cheque has been handed over to

P.W.2 who in turn, handed it over to the complainant firm

and same has been misused.

17. To substantiate the said aspect of the matter,

no positive action has been taken by the accused, either

by filing a police complaint or by issuing a legal notice or

atleast after the accused put in appearance before the

learned Trial Magistrate had the services of an Advocate.

No proper explanation is also forthcoming in this regard.

If at all, if John Peter who is examined as P.W.2, has

misused the cheque as is contended by the accused,

nothing prevented the accused to take action against John

Peter.

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18. On the contrary, material evidence placed on

record would go to show that accused did have the

business transaction with the complainant Firm in

purchasing the chicken as is found in the 26 invoices.

Value Added Tax registration certificate was also filed

before the Court to reflect the transaction between the

accused and the complainant.

19. It is the specific case of the complainant that

the cheque has been issued towards repayment of the

chicken purchased by the accused from the complainant

Firm. Accordingly, the complainant has discharged the

initial burden to invoke the presumption available under

Section 139 of the Negotiable Instruments Act.

20. No doubt, said presumption is a rebuttable

presumption and therefore, accused has chosen to

examine himself as D.W.1 and placed on record a cover as

Ex.D.1. The said evidence was not sufficient to rebut the

evidence placed on record by the complainant.

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21. Coming to the question of non service of legal

notice, legal notice contemplated under the statue is to

allow a bonafide defaulter to make the payment within

fifteen days. According to the accused, same is not

served. Returned cover shows that address shown in the

cover is that of the accused. Therefore, the contentions

urged on behalf of the revision petitioner that there was

no notice served on him and there was no commission of

offence under Section 138 of the Negotiable Instruments

Act, cannot be countenanced in law.

22. Till today, accused has not repaid the amount

and therefore, he cannot be termed as a bonafide person

to avoid the criminal liability. Accordingly, viewed from

any angle, conviction is just and proper.

23. However, both the Courts have misdirected

themselves in directing a sum of Rs.5,000/- to be paid as

defraying expenses of the State which is impermissible

having regard to the fact that lis is privy to the parties and

no State machinery is involved.

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24. As such, to that extent, this Court needs to

interfere in the revisional jurisdiction.

25. Accordingly, the following:

ORDER

i. Criminal Revision Petition is allowed in

part.

ii. While maintaining the conviction of the

accused for the offence punishable under

Section 138 of the Negotiable Instruments

Act, the fine amount ordered by the learned

Trial Magistrate confirmed by the First

Appellate Court in a sum of Rs.3,05,000/- is

modified to the sum of Rs.3,00,000/- and

sum of Rs.5,000/- imposed as fine towards

the State is hereby set aside.

iii. Entire amount of Rs.3,00,000/- is to be paid

as compensation to the complainant.