Karnataka High Court

M. Jeyashankar vs M/S Gramox Paper And Boards Ltd on 4 June, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                   NC: 2024:KHC:18941
                                                  CRL.RP No. 6 of 2021




                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 4TH DAY OF JUNE, 2024

                                      BEFORE
                      THE HON'BLE MR JUSTICE V SRISHANANDA
                     CRIMINAL REVISION PETITION NO.6 OF 2021
              BETWEEN:

                  M. JEYASHANKAR
                  AGED ABOUT 59 YEARS,
                  PROPRIETOR,
                  M/S. J.V. PAPER AGENCIES,
                  NO.100/7,
                  ARUNACHALAM MANSION,
                  NEW ROAD STREET,
                  SIVAKASI - 626 123.
                                                         ...PETITIONER
              (BY SRI. HONAKHANDE BASAGOWDA PANDIT., ADVOCATE)

              AND:

                  M/S GRAMOX PAPER AND BOARDS LTD.,
                  UNIT II, BANCHALLI HUNDI VILLAGE,
Digitally         THANDAVAPURA POST,
signed by R
MANJUNATHA        NANJANAGUD - 571 302,
Location:         MYSURU DISTRICT.
HIGH COURT
OF
KARNATAKA
                  REPRESENTED BY ITS DIRECTOR,
                  SRI. JACKSON GEORGE,
                  S/O. GEORGE C. MOOLAYIL,
                  AGED ABOUT 44 YEARS.
                                                        ...RESPONDENT
              (BY SRI. R. RAVI, ADVOCATE)
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                                              NC: 2024:KHC:18941
                                             CRL.RP No. 6 of 2021




     THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE
COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND
ORDER DATED 10.08.2020 IN CRL.A.NO.375/2019 PASSED BY
THE VII ADDITIONAL DISTRICT AND SESSION JUDGE, MYSURU
AND THAT OF THE JUDGMENT AND ORDER DATED 14.11.2019
IN CRL. CASE NO.1158/2016 PASSED BY THE COURT OF THE
JUDICIAL MAGISTRATE FIRST CLASS (III COURT) MYSURU AND
ACQUIT THE PETITIONER OF THE OFFENCE CONVICTED AND
SENTENCED U/S 138 OF THE N.I ACT AND SET HIM AT
LIBERTY.

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

                              ORDER

Heard Sri.Honakhande Basgowda Pandit, learned

counsel for the petitioner.

2. The present revision petition is filed by the

accused challenging the order of conviction and sentence

passed in CC No.1158/2016, who has been convicted for

the offence punishable under Section 138 of the

Negotiable Instruments Act which was confirmed in

Criminal Appeal No.375/2019.

NC: 2024:KHC:18941

3. Brief facts of the case which are utmost

necessary for the disposal of the present revision petition

are as under:

Accused issued cheques which are marked at Exs.P.2

to Ex.P.5 towards legally recoverable debt. Same on

presentation came to be dishonoured and legal notice is

issued. Though the same is served, there was no

compliance nor reply. Therefore, complaint was filed

under Section 138 of the Negotiable Instruments Act as

per the complaint averments.

4. The learned Magistrate took cognizance of the

offence punishable under Section 138 of the Negotiable

Instruments Act and secured the presence of the accused.

Plea was recorded and accused pleaded not guilty.

Therefore, the trial was held.

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

authorized representative of the complainant - Sri.Jackson

George got examined as P.W.1 and relied on 16

documentary evidence which were exhibited and marked

NC: 2024:KHC:18941

as Exs.P.1 to Ex.P.16 comprising of original company

resolution as Ex.P.1, original cheques as Exs.P.2 to 5,

signatures of the accused as Exs.P.2(a) and 5(a), original

bank memos as Exs.P.6 to Ex.P.9, office copy of the legal

notices as Exs.P.12 and Ex.P.13, certified copy of the

ledger account as Ex.P.14, original tax invoices as Ex.P.15

and E-mail print outs at Exs.P.16, 16(a) and 16(b).

6. There was no evidence placed on record on

behalf of the accused either by examining himself or

producing any material documents.

7. Thereafter, the accused's statement as

contemplated under Section 313 of Cr.P.C. was recorded

and accused denied all the incriminatory materials.

8. Subsequent thereto, learned Magistrate heard

the parties and on consideration of the material evidence

placed on record, especially the dishonored cheques

wherein the signature of the accused was found, drew the

presumption available under Section 139 of the Negotiable

NC: 2024:KHC:18941

Instruments Act and convicted the accused for the offence

punishable under Section 138 of the Negotiable

Instruments Act and awarded the fine of Rs.13,58,327/-

and out of which, Rs.13,53,327/- to be paid as

compensation to the complainant and remaining

Rs.5,000/- to be remitted to the State for defraying the

expenses.

9. Being aggrieved by the same, the accused filed

an appeal before the First Appellate Court in Criminal

Appeal No.375/2019.

10. Learned Judge in the First Appellate Court after

securing the records and hearing the parties in detail,

reappreciated the material evidence on record, dismissed

the appeal vide order dated 10.08.2020.

11. Being aggrieved by the same, the revision

petitioner is before this Court.

12. Learned counsel for the petitioner reiterating

the grounds urged in the revision petition contended that

NC: 2024:KHC:18941

there is a material defect in the legal notices issued at

Exs.P.10 and Ex.P.11 wherein, it has been mentioned that

apart from four cheques, the balance amount is to be paid

by way of Demand Draft or RTGS or NEFT. Therefore, the

cheques were not issued for the legally recoverable debt

and sought for allowing the revision petition.

13. He also pointed out that P.W.1 did not posses

proper authorization to file the complaint at the time of

presenting the complaint which is a material defect and

therefore, the complaint itself was not maintainable before

the learned Trial Magistrate and sought for admitting the

revision petition for further consideration.

14. Respondent has engaged the services of

Sri.R.Ravi, learned counsel, who is absent today.

15. In the light of the arguments put forth on behalf

of the revision petitioner, this Court perused the material

on record meticulously.

NC: 2024:KHC:18941

16. On such perusal of the material on record, no

doubt in Exs.P.10 and Ex.P.11, there is a mention that

apart from four cheques, there are some other dues of the

respondent - company with the petitioner. That itself

would not be sufficient to hold that the cheques were not

issued towards the legally recoverable debt.

17. Further, in order to establish what exactly is the

amount due from the accused to the complainant, the

accused should have entered the witness box to rebut the

presumption available to the complainant inasmuch as

there is no dispute of the four cheques came to be issued

by the accused to the complainant and signature found

there in as that of the accused. Therefore, the

presumption drawn by the Trial Court under Section 139 of

the Negotiable Instruments Act stood unrebutted and

therefore, conviction of the accused for the aforesaid

offence is perfectly justified.

18. Learned Judge in the First Appellate Court has

reappreciated the above aspects of the matter and noted

NC: 2024:KHC:18941

the point that there is no contra evidence placed on record

by the accused and rightly dismissed the appeal.

19. Insofar as authorization is concerned, the

authorization is marked at Ex.P.1. The complainant is a

company and therefore, authorization issued vide Ex.P.1 is

just and proper.

20. Under such circumstances, there is no merit in

any one of the grounds urged on behalf of the revision

petitioner.

21. However, it is noticed that sum of Rs.5,000/- is

ordered by the learned Trial Magistrate to the defraying

expenses of the State.

22. Admittedly, lis is between the two private

parties and therefore, no State machinery was involved.

Therefore, imposition of Rs.5,000/- towards the State is

unwarranted and same needs interference in this revision

petition.

23. Accordingly, the following:

NC: 2024:KHC:18941

ORDER

i. Revision petition is allowed in part.

ii. While maintaining the order of conviction of

the accused for the offence punishable

under Section 138 of the Negotiable

Instruments Act, imposition of fine in a sum

of Rs.13,58,327/- is modified to the extent

of Rs.13,53,327/- and sum of Rs.5,000/-

imposed as fine towards the State is hereby

set aside.