Karnataka High Court
M/S Airier Ventura Llp vs M/S Akash Aluminium Company on 22 October, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:42504
CRL.RP No. 431 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO.431 OF 2022
BETWEEN:
1. M/S AIRIER VENTURA LLP
OFFICE AT NO.2 AND 3
PRAKRUTHI FARMS
ANAGALAPURA VILLAGE
DODDAGUBBI POST
BENGALURU-560077
REPRESENTED BY ITS MANAGER
2. M/S AIRIER VENTURA LLP
OFFICE AT NO.2 AND 3
PRAKRUTHI FARMS
ANAGALAPURA VILLAGE
DODDAGUBBI POST
BENGALURU-560077
REPRESENTED BY ITS PARTNER SHYLAJA BHAT
Digitally
signed by 3. M/S AIRIER VENTURA LLP
MALATESH OFFICE AT NO.2 AND 3
KC
PRAKRUTHI FARMS
Location: ANAGALAPURA VILLAGE
HIGH
COURT OF DODDAGUBBI POST
KARNATAKA BENGALURU-560077
REPRESENTED BY ITS PARTNERS B R SUDHAKAR
...PETITIONERS
(BY SRI. CHANDRANATH ARIGA K, ADVOCATE)
AND:
1. M/S AKASH ALUMINIUM COMPANY
HAVING ITS OFFICE AT NO.2 AND 2/1
1ST FLOOR, 4TH CROSS
MYSORE ROAD
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CRL.RP No. 431 of 2022
NEAR CORPORATION BANK
BENGALURU-560026
REPRESENTED BY ITS MANAGER
SRI SANTHOSH
S/O M DEVAPPA
AGED ABOUT 32 YEARS
...RESPONDENT
(BY SRI RAGHAVENDRA FOR
SRI ADARSH M. LIMBIKAI, ADVOCATES)
THIS CRL.RP FILED UNDER SECTION 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT IN
CRL.A.NO.2005/2019 ON THE FILE OF THE LXIV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE AT BENGALURU (CCH-65)
DATED 23.12.2021 AND ETC.,
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
Heard Sri Chandranath Ariga K., learned counsel for the
revision petitioners and Sri Raghavendra for Adarsh, learned
counsel for the respondent.
2. Revision petition is filed by the accused who
suffered an order of conviction in C.C.No.1401/2019 for the
offence punishable under Section 138 of Negotiable
Instruments Act and ordered to pay fine of Rs.11,15,000/- with
default sentence of simple imprisonment for a period of six
months and out of the fine amount sum of Rs.11,10,000/- was
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ordered to pay as compensation to the complainant and
balance sum of Rs.5,000/- is appropriated towards the
defraying expenses of the State, confirmed in
Crl.A.No.2005/2019.
3. Facts in brief which are utmost necessary for
disposal of the present revision petition are as under:
A complaint came to be lodged under Section 200 of
Cr.P.C., by the complainant seeking action against the accused
for the commission of the offence under Section 138 of
Negotiable Instruments Act as cheque issued by the revision
petitioner towards the repayment of outstanding amount of
Rs.10,93,881/- got dishonored and there was no complainant
to the callings of the legal notice.
4. Learned Trial Magistrate after completing the
necessary formalities, secured the presence of the accused and
recorded the plea. Accused pleaded not guilty and therefore
trial was held.
5. In order to establish the case of the complainant,
complainant got examined himself as P.W.1 and placed on
record 21 documents which were exhibited and marked Exs.P.1
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to P.21 comprising of authorization letter, tax invoices, cheque,
bank endorsement, ledger accounts extracts, office copy of
legal notice dated 23.10.2018, postal receipts, postal
acknowledgements.
6. Detailed cross-examination of P.W.1 did not yield
any positive materials so as to disbelieve the version of the
complainant not to dislodge the presumption available to the
complainant under Section 139 of Negotiable Instruments Act.
7. Thereafter learned Trial Magistrate recorded the
accused statement wherein accused has denied all the
incriminating materials.
8. To rebut the presumption available to the
complainant, third accused by name B.R. Sudhakar got
examined himself as D.W.1 and placed on record two
documents namely account statement of ICICI bank and ledger
extract.
9. In the cross-examination of D.W.1, he clearly
admitted that he has not lodged any police complaint nor
issued any legal notice about the alleged misuse of the cheque
marked at Ex.P.7.
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10. He admits that he has received the legal notice
issued before filing criminal complaint.
11. Thereafter learned Trial Magistrate, heard the
parties in detail and convicted the accused and sentenced as
aforesaid.
12. Being aggrieved by the same, accused preferred an
appeal before the District Court in Crl.A.No.2005/2019.
13. Learned Judge in the First Appellate Court after
securing the records heard the parties in detail and dismissed
the appeal of the accused.
14. Being further aggrieved by the same, accused is
before this Court in this revision.
15. Sri Chandranath Ariga K., learned counsel for the
revision petitioner reiterating the grounds urged in the revision
petition vehemently contended that both the Courts have not
properly appreciated the material evidence on record and
wrongly convicted the accused resulting in miscarriage of
justice and sought for allowing the revision petition.
16. Per contra, learned counsel for the respondent Sri
Raghavendra supports the impugned judgments.
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17. Having heard the parties in detail this Court
perused the material on record meticulously.
18. On such perusal of the material on record, the
following points would arise for consideration:
1) Whether the revision petitioners establish
that the impugned judgment is suffering from
legal infirmity on account of the patent
factual or jurisdictional error and thus the
impugned judgments are perverse in nature,
calling for interference by this Court in this
revision?
2) Whether the sentence is excessive?
3) What order?
19. Regarding point No.1 : In the case on hand, the
issuance of cheque at Ex.P.7 signed by accused Nos.2 and 3 is
not in dispute.
20. The details of the transaction, namely the invoices
raised by the complainant is mentioned in the complaint,
whereby there was an amount outstanding to the extent of
Rs.11,16,212/-. Towards the repayment, accused said to have
paid some part amount and for the remaining amount, a
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cheque bearing No.680235 dated 02.08.2018 drawn on ICICI
bank, in a sum of Rs.10,93,881/- was issued in the contention
taken by the complainant.
21. To establish the same, account extract has been
placed on record.
22. In the case on hand, there is no dispute that Ex.P.7
cheque belongs to the accused and the same is signed by
accused Nos.2 and 3.
23. When once the business transaction is established
by the complainant and also issuance of cheque and signature
of the accused found therein is established, the learned Trial
Magistrate is entitled to raise the presumption available to the
complainant under Section 139 of Negotiable Instruments Act.
24. No doubt, such a presumption is a rebuttable
presumption. Therefore, the third accused has stepped into the
witness box and placed his oral evidence on record coupled
with two documentary evidence.
25. In the cross-examination of D.W.1, he has clearly
admitted that in respect of alleged misuse of the cheque there
was no action taken by the accused either by issuing legal
notice or by filing a police complaint.
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26. The material evidence placed on record by the
complainant and the accused has been rightly appreciated by
the learned Trial Magistrate and was of categorical view that
the oral evidence placed on record by the accused was not
sufficient enough to rebut the presumption available to the
complainant under Section 139 of Negotiable Instruments Act
and therefore, rightly convicted the accused.
27. Learned Judge in the First Appellate Court has
rightly re-appreciated the material evidence on record and
dismissed the appeal of the accused.
28. Having regard to the scope of the revisional
jurisdiction, this Court does not find any patent factual error so
as to hold that the impugned judgment is suffering from legal
infirmity or perversity. Accordingly, point No.1 is in the
negative.
29. Regarding point No.2: As against the cheque
amount of Rs.10,93,881/- learned Trial Magistrate has a sum of
Rs.11,15,000/- as fine amount.
30. Out of the said amount, sum of Rs.11,10,000/- was
ordered to be paid as compensation to the complainant which
is just and proper. However, imposing the fine amount of
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Rs.5,000/- towards the defraying expenses of the State cannot
be countenanced in law in view of the fact that lis is privy to
the parties and there was no State Machinery is involved.
31. Accordingly, to that extent the question of sentence
requires interference by this court. Hence, point No.2 is
answered partly in the affirmative.
32. Regarding point No.3: In view of findings of this
Court on point Nos.1 and 2, following order is passed.
ORDER
(i) 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
awarded by the learned Trial Magistrate,
confirmed by the First Appellate Court in a sum
of Rs.11,15,000/- is reduced to sum of
Rs.11,10,000/-.
(iii) Entire amount of Rs.11,10,000/- is ordered be
paid to the complainant as compensation.
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(iv) Imposing the fine of Rs.5,000/- towards the
defraying expenses of the State is hereby set
aside.
(v) Time is granted for the accused to pay the
remaining amount till 30th November 2024,
failing which the accused shall undergo simple
imprisonment for a period of six months.
Sd/-
(V SRISHANANDA)
JUDGE
MR
