Karnataka High Court

Santosh Kumar vs Alvares & Thomas(R) on 26 June, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                    NC: 2024:KHC:24316
                                               CRL.RP No. 1123 of 2018



                                                                         R
                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 26TH DAY OF JUNE, 2024

                                      BEFORE
                     THE HON'BLE MR JUSTICE V SRISHANANDA
                 CRIMINAL REVISION PETITION NO. 1123 OF 2018
              BETWEEN:

                  SANTOSH KUMAR,
                  S/O K. GANAPATHY BHAT,
                  AGED ABOUT 59 YEARS,
                  PROPRIETOR SANGEETHA MARBLES,
                  AND MINERALS NO.102,
                  POOJAN APARTMENT,
                  VITHOBA TEMPLE ROAD,
                  MANGALURU-575 001
                                                          ...PETITIONER
              (BY SRI. S.N. BHAT, ADVOCATE)

              AND:


Digitally         ALVARES & THOMAS(R)
signed by R       A PARTNERSHIP CONCERN, ALVARES CENTRE,
MANJUNATHA
Location:         NANTHOOR, MANGALURU,
HIGH COURT        REP. BY ITS PARTNERS,
OF
KARNATAKA         HELEN ALVARES REIN,
                  W/O. STEPHAN REIN CHRISTIAN,
                  AGED ABOUT 44 YEARS,
                  ALVARES CENTRE, NANTHOOR,
                  MANGALURU-575 001
                                                      ...RESPONDENT
              (BY SRI. SHARATH S KULKARNI, ADVOCATE FOR
                  SRI. L. GOVINDRAJ, ADVOCATE)
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                                            NC: 2024:KHC:24316
                                     CRL.RP No. 1123 of 2018




      THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C TO
SET ASIDE THE ORDERS PASSED BY THE THIRD ADDITIONAL
DISTRICT AND SESSION JUDGE, MANGALURU, D.K., DATED
15.09.2018 IN CRIMINAL APPEAL NO.172/2017 AND ALSO
JUDGMENT PASSED BY THE FIRST ADDITIONAL CIVIL JUDGE
AND        JMFC,     MANGALURU,     DATED    27.11.2017     IN
C.C.NO.1729/2010.

      THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

THE COURT MADE THE FOLLOWING:

                            ORDER

Heard Sri. S.N.Bhat for petitioner and Sri. Sharath

Kulakarni for respondent.

2. Accused who suffered on order of conviction in

C.C.No.1729/2010 confirmed in Crl.A.No.172/2017 for the

offence punishable under Section 138 of the NI Act and

ordered to pay fine amount of Rs.64,53,262/- out of which sum

of Rs.64,33,262 was to be paid as compensation to the

complainant and balance amount of Rs.20,000/- towards the

defraying expenses of the State has preferred the present

revision petition.

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3. Facts in brief which are most relevant to the

disposal of the revision petition are as under:

4. Complainant contended that complainant, a

partnership concern was carrying on the business of clearing

and forwarding at Karwar and Mangaluru and other places.

Towards the clearing and handling charges of iron ore shipment

of the accused, complainant accepted an order by the accused

on 19.01.2009 at Karwar by raising an invoice on 20.01.2009.

5. As per the terms of the contract, a sum of

Rs.99,24,376/- was due to the complainant by the accused

from the invoice. In respect of the said dues, a sum of

Rs.30,00,000/- was paid by the accused by cheque. After

clearing the said amount, still a sum of Rs.69,24,376/- was the

amount that was due by the accused to the complainant. In

that regard, after sufficient persuasion, the cheque bearing

No.199870 dated 02.02.2009 in a sum of Rs.64,33,262/- was

issued by the accused drawn on Canara Bank, Balmatta,

Mangalore after deducting the TDS amount of Rs.2,17,164/-.

6. Said cheque on presentation came to be

dishonored. Fact of dishonour was intimated to the accused.

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According to complainant, accused replied stating that they

could not arrange the amount covered under the cheque and

requested the complainant to represent the same in the month

of April-2009. Accordingly, the cheque was represented on

09.04.2009. But again the cheque was dishonoured with an

endorsement 'Exceeds Arrangement' and therefore, a legal

notice was caused to the accused by the complainant.

7. The legal notice was served on the accused and

there was no compliance to the callings of the notice nor there

was any reply. Thereafter complainant approached the Trial

Magistrate to take action against the accused for the offence

punishable under Section 138 of NI Act.

8. Learned Trial Magistrate took cognizance and

summoned the accused, recorded the plea. Accused pleaded

not guilty and therefore, Trial was held.

9. In-order to establish the case of the complainant in

all 5 witnesses were examined as PWs.1 to 5 and as many as

31 documents were placed on record which were executed and

marked as Exs.P1 to P31.

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10. Accused statement as is contemplated under

Section 313 of Cr.P.C. was recorded by the Trial Magistrate,

wherein, accused has denied all the incriminatory

circumstances found against him.

11. To rebut the evidence placed on record by the

complainant, accused got examined himself as DW.1 and

placed on record 2 documents namely quatation dated

05.01.2009 furnished by the complainant and statement of

account dated 08.05.2016 as Exs.D1 and D2.

12. Learned Trial Judge heard the parties in detail and

after appreciating the oral and documentary evidence placed on

record by the parties in a cumulative manner, convicted the

accused for the offence punishable under Section 138 of the NI

Act and passed the sentence as referred supra.

13. Being aggrieved by the same, accused preferred an

appeal before the district Court in Crl.A.No.172/2017. Learned

Judge in the First Appellate Court, secured the records and in

the light of the appeal grounds and the arguments put forward

on behalf of the parties, not only accepted the reasoning

recorded by the Trial Magistrate for convicting the accused but

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also supplemented additional reasons for maintaining the

conviction order and dismissed the appeal.

14. Being further aggrieved by the same, accused is

before this Court.

15. Sri.S.N.Bhat, learned counsel representing the

accused-revision petitioner vehemently contended that in the

case on hand, transaction is not in dispute.

16. He further contended that while shifting the iron

ore, from Belikeri to Karwar port, there were loss of iron ore

and the same was intimated by the accused to the complainant

and therefore, the liability as is found in the statement of

account between the parties was incorrect and complainant was

bound to give deduction to the loss of iron ore in the invoice

value which has not been properly taken into consideration by

the learned Trial Judge and the learned Jude in the First

Appellate Court and therefore, the cheque which has been

presented on 06.02.2009, on dishonour the matter was

discussed by the parties and there was no direction by the

accused to represent the cheque again on 09.04.2009 and

therefore, there was no offence committed by the accused

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under Section 138 of the NI Act and sought for allowing the

revision petition.

17. He also contended that when there was an

intimation by the complainant to the accused about the

dishonour of the cheque on 06.02.2009, it should be construed

as a constructive notice to the accused and the limitation to file

the compliant would have commenced after 15 days of

06.02.2009 and representing the cheque without further

instructions by the accused in writing to the complainant on

09.04.2009 would not make out a fresh cause of action for the

complainant to proceed action against for the offence

punishable under Section 138 of the NI Act and said aspect of

the matter has not been properly appreciated by both the

Courts in proper perspective and sought for allowing the

revision petition.

18. He further argued that in the cross examination

there is crystal clear admission that there was loss in the

transportation of iron ore from Belikerei to Karwar and same

has not been given any proper deduction in the statement of

account by the complainant resulting in the invoice amount got

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modified and the liability under the cheque being not there the

conviction of the accused under Section 138 of the NI Act is

impermissible and sought for allowing the revision petition.

19. Per contra Sri. Sharath Kulakarni learned counsel

representing the respondent supports the impugned judgment.

20. He pointed out that no notice was issued to the

accused in writing therefore, there was no embargo on the

complainant to represent the cheque on 09.04.2009 as per the

oral instructions of the accused and legal notice came to issued

after second dishonour and thereafter compliant being filed to

the Jurisdictional Magistrate is well within time and perfectly

justified and sought for dismissal of the revision petition.

21. He also pointed out that the alleged loss of iron ore

is not properly established by the accused and moreover having

regard to the presumption available to the complainant under

Section 139 of the NI Act, that the cheque is issued either for

the entire legally recoverable debt or part legally recoverable

debt has been rightly invoked by both the Courts and therefore,

the conviction and sentence is just and proper.

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22. He also pointed out that the plea of the accused is

in the nature of set of counter claim which is impermissible and

alien to the criminal jurisdiction and therefore, said plea of the

accused cannot be countenanced in law and sought for

dismissal of the revision petition.

23. Having heard the parties in detail this Court

perused the material on record meticulously.

24. On such perusal of the material on record it is

crystal clear that the transaction between the complainant and

accused is established. Like wise issuance of the cheque and

the signature of the accused in the dishonoured cheque is not

in dispute.

25. Even according to the accused, sum of

Rs.30,00,000/- has been paid towards the invoice value and for

the balance amount the cheque came to be issued. But the

accused has taken up a contention that the complainant failed

to properly transport the iron ore from Belikere to karwar as

per the contract.

26. According to accused, there were deficiency in the

quantity of iron ore and there was loss in between. Accordingly,

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the accused is not obliged to pay the entire amount covered

under the cheque. To substantiate the said aspect of the

matter, accused has chosen to examine himself as DW.1 and

produced two documents namely quotation dated 05.01.2009

as Ex.D1 and statement of account dated 08.05.2016 as Ex.D2.

27. In-order to establish the entire the amount covered

under the cheque is due amount that is payable by the accused

to the complainant, as many as 5 witnesses have been

examined on behalf of the complainant.

28. The learned Trial Judge took into considerations the

rival contentions of the parties and has also culled out in the

Trial Court judgment, the cross examination with regard to he

fact that about 810 metric ton iron ore was being transported

from belikeri to Karwar there were some deficiencies. He also

stated that for such loss deficiencies in the quantity it is the

complainant who is responsible.

29. While considering such admission, the Trial

Magistrate further took into consideration that if there is any

deficiency, the remedy for the accused lies elsewhere and for

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which purpose the liability under the cheque cannot be avoided

by the accused.

30. No such action has been taken by the accused with

regard to the deficiency in the quantity or loss of iron ore

during transportation. What exactly is the quantity that has

been lost while transporting the iron ore and whether that

affected the contracted terms are all matters which can not be

the subject matters of adjudication in an offence punishable

under Section 138 of the NI Act.

31. Crowning all these things accused kept quite in not

replying the legal notice after the second dishonour on

09.04.2009. Non answering the callings of the notice are to be

considered having a probative value while rising presumption in

favour of the complainant under Section 139 of the NI Act.

32. No doubt the presumption under Section 139 of the

NI Act is a rebuttal presumption. How exactly such presumption

is to be rebutted depends on facts and circumstances of each

case. In the case of hand, the plea that has been raised by the

accused while examining himself as DW.1 and placing Ex.D1

and D2, is in the nature of a set which is impermissible in so far

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as the adjudication for an offence punishable under Section

138 of the NI Act the procedure for conducting the Trial under

Section 138 of the NI Act is summary in nature.

33. Further, it was always open for the accused to come

forward and pay the admitted due amount. It is not the case of

the accused that the loss of iron ore during transportation is to

the extent of entire amount of Rs.64,33,262/-. If that would be

so, what prevented the accused while issuing the cheque to

mention that the cheque is issued in respect of a particular

quantity subject to the final settlement between the

complainant and accused. More over it is also the seen that the

accused has deducted the tax at the source in a sum of

Rs.2,17,154/-.

34. If at all the accused is not liable to pay sum of

Rs.69,24,376/, why would he deduct the tax at source for a

sum of Rs.64,17,164 and issued the cheque in a sum of

Rs.64,33,262/- is a question that remains unanswered.

35. Under the circumstances, the rebuttal evidence

placed on record by the accused was found insufficient to

accept the version of the accused that he is not liable to pay

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the cheque amount and rightly convicted by the learned Trial

Judge for the offence punishable under Section 138 of the NI

Act.

36. Insofar as the representation of the cheque on

09.04.2009 is concerned, since, there was no notice issued by

the complainant when the cheque got dishonoured on

06.02.2009, the complaint possessed the right to represent the

cheque any number of times within a period of six months from

the date of issuance of notice. Cause of action to take action

would arise only when the legal notice in writing issued by the

complainant and not the oral intimation to the accused.

Therefore, the contentions urged on behalf of the

accused/revision petitioner that complainant is barred by time

cannot be countenanced in law. In fact in the case of MSRS.

LEATHERS V/S. PALANIYAPPAN reported in 2012(7)

SUPREME COURT 68 and KAMALESH KUMAR V/S. STATE

OF BIHAR AND ANOTHER reported in 2014(1) CRIMES S.C.

108. The Hon'ble Apex Court has held that prosecution based

on second or successive dishonour of cheque in also

permissible so long as such successive prosecution satisfy the

requirements stipulated in the proviso of section 138 of NI Act.

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37. The learned Judge in the First Appellate Court while

considering case of the accused by revisiting to the aspects of

the matter, not only accepting the reasoning assigned by the

learned Trial Judge, while recording the order of conviction but

also supplemented to additional reasons for maintaining the

conviction.

38. This Court, that too in the revision jurisdiction, can

not revisit into the factual aspects of the matter having regard

to the scope of the reasons as is held by the Hon'ble Apex

Court in the case of AMIT KAPUR V/s. RAMESH CHANDER AND

ANOTHER reported in (2012) 9 SCC 460.

39. Suffice to say that the material evidence available

on record would make out a case that the complainant in

seeking an order of conviction to be confirmed by this Court

also. As such, this Court does not find any one of the grounds

urged in the revision petition is having merits so as to set aside

the finding of conviction recorded by the Trial Court confirmed

by the First Appellate Court. Accordingly, the conviction is

maintained.

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40. Having said thus, both the Courts have erred in

imposing sum of Rs.20,000/- as fine amount towards the

defraying expenses of the State as the lis is privy to the parties

and no State machinery is involved. Accordingly, to that

extent, the judgments needs to be interefered by this Court, in

this revision.

41. 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.64,53,262/- is modified to sum of

Rs.64,33,262/- and sum of Rs.20,000/- imposed

as fine towards the State is hereby set aside.

iii. Entire amount of Rs.64,33,262/- is to be paid as

compensation to the complainant.