Karnataka High Court
Shri Akbar Shariff vs Shri M S Shariff on 15 November, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 578 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.578 OF 2014
BETWEEN:
1. SHRI AKBAR SHARIFF
S/O B.KASIM SAB,
AGED ABOUT 41 YEARS,
UNITED BUILDERS, NO.32,
9TH A MAIN, BTM 1ST STAGE,
BANGALORE-560 029
...PETITIONER
(BY SRI VISHNU HEGDE, ADVOCATE)
AND:
SHRI M S SHARIFF
SINCE DEAD REPRESENTED BY LEGAL
REPRESENTATIVES
1. SHOHAIB SHARIFF
Digitally S/O LATE M.S.SHARIFF,
signed by R/AT NO.632, 2ND MAIN , 2ND CROSS,
MALATESH III STAGE, BEML LAYOUT,
KC
RAJARAJESHWARINAGAR,
Location: BANGALORE-560 098.
HIGH
COURT OF
KARNATAKA 2. ZUBAIR SHARIFF
S/O LATE M.S.SHARIFF,
R/AT NO.632, 2ND MAIN , 2ND CROSS,
III STAGE, BEML LAYOUT,
RAJARAJESHWARINAGAR,
BANGALORE-560 098.
...RESPONDENTS
(BY SRI. GANESH BHAT Y H, ADVOCATE -ABSENT)
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CRL.RP No. 578 of 2014
THIS CRL.RP IS FILED UNDER SECTION 397 AND 401
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER
DATED:23.6.14 PASSED BY THE P.O., FTC-XIV, BANGALORE
CITY IN CRL.A.No.562/13 i.e., ANNEXURE-A AND THE
IMPUGNED ORDER DATED:9.10.13 PASSED BY THE XVI ACMM,
BANGALORE IN C.C.NO.27591/2009 i.e., ANNEXURE-B.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Vishnu Hegde, learned counsel for the revision
petitioner. None appears for the respondents.
2. Accused who suffered an order of conviction in
C.C.No.27591/2009, dated 9th October 2013, on the file of XVI
Additional Chief Metropolitan Magistrate, Bengaluru, confirmed
in Crl.A.No.562/2013, dated 23rd June 2014, on the file of Fast
Tract Court - XIV, is the revision petitioner.
3. Facts in nutshell for disposal of the revision petition
are as under:
A complaint came to be lodged under Section 200 of
Cr.P.C., alleging the commission of offence punishable under
Section 138 of Negotiable Instruments Act by contending that
complainant and accused had entered into an agreement to
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purchase a site from the complainant situated in BTM layout,
Bengaluru.
4. As per talks and negotiations, accused being the
reseller, arranged another buyer after preparing all necessary
documents and completed the transactions in favour of the new
buyer, taking advantage of the nomination clause in the
agreement entered into between the complainant and the
accused.
5. Accused got substantial profit in getting the lands
sold to a prospective purchaser and towards the balance sale
consideration payable to the complainant, accused assured that
he would pay the same through cheque and passed on a
cheque bearing No.067999 dated 26.03.2007 in a sum of
Rs.8,00,000/-, which on presentation returned with an
endorsement 'insufficient funds'.
6. Callings of the legal notice was complied and the
accused has sent an untenable reply. Therefore, complainant
was constrained to file the complaint to take action against the
accused.
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7. After completion of necessary formalities, learned
Trial Magistrate summoned the accused and recorded the plea.
Accused pleaded not guilty. Therefore, trial was held.
8. In order to prove case of the complainant,
complainant got examined himself as P.W.1 and placed on
record nine documents which were exhibited and marked as
Exs.P.1 to P.9, comprising of dishonored cheque in original,
bank endorsement, copy of the legal notice, postal receipts,
postal acknowledgement, reply notice, receipt and original
complaint.
9. Detailed cross-examination of P.W.1 did not yield
any positive material in establishing the case of the accused
that accused had already paid sum of Rs.20,00,000/- and
Rs.12,00,000/- to the complainant and therefore, the cheque in
question which was given for security has been misused by the
complainant.
10. Likewise, the material evidence in the form of
suggestions to P.W.1 was not sufficient enough to dislodge the
presumption available to the complainant.
11. On conclusion of recording of evidence of
complainant, accused statement as is contemplated under
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Section 313 Cr.P.C., was recorded. Accused denied all the
incriminatory materials found therein. Therefore, trial was
held.
12. To rebut the presumption available to the
complainant, accused entered into the witness box and
examined himself as D.W.1.
13. On his behalf, accused has placed the original
agreement of sale dated 02.12.2006, parent deed showing the
title in favour of the complainant namely sale deed dated
22.04.1999, subsequent sale deed in favour of the prospective
purchaser dated 08.03.2007, copy of the plaint in
O.S.No.26812/2007, verifying affidavit, First Information
Report, copy of the PCR 14646/2007, copy of the list of
documents filed in the said private complaint, reply notice
dated 12.07.2007, postal receipt dated 13.07.2007 as Exs.D.1
to D.10.
14. In the cross-examination of D.W.1, he categorically
admits that when he made the second payment of
Rs.12,00,000/-, he did not obtain any receipt. He also admits
that there was no endorsement made on the original
agreement with regard to second payment.
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15. Complainant did not dispute the payment of
Rs.20,00,000/-, but the payment of Rs.12,00,000/- is disputed.
16. Learned Trial Judge on concluding of recording of
evidence on both side, on cumulative appreciation of material
evidence on record, recorded a categorical finding that the
second payment of Rs.12,00,000/- as is contended by the
accused stands not proved.
17. Therefore, the presumption available to the
complainant under Section 139 of Negotiable Instruments Act
insofar as the dishonored cheque is concerned did not get
rebutted and therefore, convicted the accused for the offence
punishable under Section 138 of Negotiable Instruments Act
and ordered fine of Rs.8,10,000/-, of which sum of
Rs.8,08,000/- as compensation to the complainant and balance
sum of Rs.2,000/- towards defraying expenses of the state.
18. Being aggrieved by the same, accused preferred an
appeal before the District Court in Crl.A.No.562/2013.
19. Learned District Judge, secured the records and
after hearing the parties re-appreciated the material evidence
on record and concurred with the findings recorded by the
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learned Trial Magistrate and dismissed the appeal of the
accused.
20. Being further aggrieved by the same, accused is
before this Court in this revision.
21. Sri Vishnu Hegde, learned counsel for the revision
petitioner reiterating the grounds urged in the revision petition,
contended that there is no dispute as to the agreement of sale
executed between complainant and accused.
22. However, the complainant, on his own sold the
property in favour of the third party and therefore, the accused
was not required to pay any further amount and accused being
the consenting witness to the said sale deed, was exonerated
from all his liabilities as the complainant got the money from
the prospective purchaser and the cheque which has been
given by the accused at the time entering into agreement
towards the security has been misused by the complainant and
sought for allowing the revision petition.
23. Respondent has engaged the services of Sri Ganesh
Bhat Y.H., learned counsel, who is not present today.
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24. In the light of the arguments put forth on behalf of
the revision petitioner, this Court perused the material on
record meticulously.
25. On such perusal of the material on record, following
points would arise for consideration:
1) Whether revision petitioner has made out a case that the
impugned judgments are suffering from legal infirmity and
perversity and patent factual defect or error of jurisdiction
resulting in impugned judgments being perverse in nature so
as to call for interference in this revision petition?
2) Whether the sentence is excessive?
3) What order?
26. In the case on hand, the agreement to sell entered
into between the complainant and accused is not in dispute. So
also payment of Rs.20,00,000/- by the accused is also not in
dispute. Original value of the property was fixed at
Rs.55,00,000/-.
27. Ultimately, taking advantage of the nominee clause
in the agreement, it is the specific case of the complainant that
the property was sold to a prospective purchaser by the
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accused and he was required to pay the balance sum of
Rs.8,00,000/- towards the sale consideration.
28. Towards the same, accused issued the cheque in
question which on presentation came to be dishonored is the
specific case of the complainant.
29. According to the accused, the said cheque was
issued as security. Same has been misused by the complainant
even after receipt of the entire money from the prospective
purchaser.
30. In this regard, no doubt a copy of the private
complaint is placed on record by the accused. But, result
thereof is not forthcoming and what was the logical end of the
private complaint is also not forthcoming on record.
31. Crowning all these things, accused in his cross-
examination has categorically admitted that he paid sum of
Rs.20,00,000/- towards sale consideration and another sum of
Rs.12,00,000/- as the second instalment of the sale
consideration.
32. D.W.1 in his cross-examination admitted that for
the second payment of Rs.12,00,000/- there is no receipt nor
there is any endorsement in the agreement to sell.
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33. No prudent person would pay sum of
Rs.12,00,000/- without the receipt or taking necessary
endorsement on the agreement.
34. If the complainant wanted to misuse the cheque
said to have been given as security, he would have filled up the
cheque for higher amount, but the cheque is one for
Rs.8,00,000/-. The balance consideration has been received
from the prospective purchaser as could be seen from the sale
deed.
35. These aspects of the matter when viewed
cumulatively, towards the balance consideration when accused
has passed on the cheque in a sum of Rs.8,00,000/-, it was the
bounden duty of the accused to honor the same.
36. Since the accused has failed to make the payment,
and did not prove that he was not due any amount towards the
sale consideration, this Court is of the considered opinion that
the order of conviction recorded by the learned Trial Magistrate,
confirmed by the First Appellate Court needs no interference by
this Court, in view of the limited power of revisional jurisdiction.
Accordingly, point No.1 is answered in the negative.
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37. Regarding point No.2: As against cheque amount
of Rs.8,00,000/-, learned Trial Magistrate has awarded sum of
Rs.8,10,000/- as the fine amount. Since, lis is privy to the
parties and no State machinery is involved, awarding sum of
Rs.2,000/- towards the defraying expenses of the State cannot
be countenanced in law. Therefore, the same needs to be
interference in this revision. Accordingly, point No.2 is
answered partly in affirmative.
38. Regarding Point No.3: In view of finding on point
Nos.1 and 2, following order is passed.
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
Negotiable Instruments Act, fine amount of
Rs.8,10,000/- imposed by the learned Trial
Magistrate, confirmed by the First Appellate
Court, is reduced to sum of Rs.8,08,000/- and
the same be paid as compensation to
complainant.
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(iii) Entire sum of Rs.8,08,000/- is ordered to be
paid on or before 30th December 2024, failing
which the accused shall undergo simple
imprisonment for a period of two years as
ordered by the learned Trial Magistrate,
confirmed by the First Appellate Court.
(iv) Sum of Rs.2,000/- awarded by the learned Trial
Magistrate, confirmed by the First Appellate
Court towards defraying expenses is hereby set
aside.
(v) Office is directed to send back the Trial Court
Records with copy of this order forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
MR
