Karnataka High Court
Shri Basaveshwar Urban Credit Souhard ... vs Shri Basavaraj S/O Narasappa Shindhe on 28 February, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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CRL.RP No. 100027 of 2023
C/W CRL.RP No. 100026 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100027 OF 2023
(397(Cr.PC)/438(BNSS)
C/W
CRIMINAL REVISION PETITION NO.100026 OF 2023
(397(Cr.PC)/438(BNSS)
IN CRL.RP.NO.100027/2023:
BETWEEN:
1. SHRI BASAVESHWAR URBAN CREDIT SOUHARD
SAHAKARI NIYAMIT SANKESHWAR,
MAIN BRANCH SITUATED AT MALI BUILDING,
NIDASOSI ROAD, SANKESHWAR,
TAL. HUKKERI, DIST. BELAGAVI,
REPRESENTED BY ITS CEO SHRI B.K. KAMAGOUDAR,
AGE: 40 YEARS, OCCUPATION: SERVICE,
R/O. MALI BULIDING, NIDASOSI ROAD,
R. SANKESHWAR, TAL. HUKKERI, DIST. BELAGAVI.
2. SHRI BASAVESHWAR URBAN CREDIT SOUHARD
SAHAKARI NIYAMIT SANKESHWAR,
MAHANTESH NAGAR BRANCH, BELAGAVI,
REPRESENTED BY ITS MANAGER,
SHRI SHRIDHAR VITTAL HANABAR,
AGE: 27 YEARS, OCCUPATION: SERVICE,
R/O. MANTESH NAGAR, BELAGAVI.
... PETITIONERS
(BY SMT.CHETANA S. BIRAJ, ADVOCATE)
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CRL.RP No. 100027 of 2023
C/W CRL.RP No. 100026 of 2023
AND:
1. SHRI BASAVARAJ S/O. NARASAPPA SHINDHE,
SINCE DECEASED BY HIS LRS.,
1A. SMT. UMA W/O. BASAVARAJ SHINDHE,
AGE: 68 YEARS, OCC. HOUSEWIFE,
R/O. PRATHAMESH APARTMENT,
CTS NO. 7314, FLAT NO. S-1,
ANJANEY NAGAR, SECTOR NO.10,
NEAR SIDANAL HOUSE, M.M. EXTENSION,
BELAGAVI-590016.
1B. SRI SATISH S/O. BASAVARAJ SHINDHE,
AGE: 41 YEARS, OCC. PRIVATE JOB,
R/O. PRATHAMESH APARTMENT,
CTS NO. 7314, FLAT NO. S-1,
ANJANEY NAGAR, SECTOR NO.10,
NEAR SIDANAL HOUSE, M.M. EXTENSION,
BELAGAVI-590016.
1C. SRI MOHAN S/O. BASAVARAJ SHINDHE,
AGE: 37 YEARS, OCC. PRIVATE JOB,
R/O. PRATHAMESH APARTMENT,
CTS NO. 7314, FLAT NO. S-1,
ANJANEY NAGAR, SECTOR NO.10,
NEAR SIDANAL HOUSE, M.M. EXTENSION,
BELAGAVI-590016.
2. SHRI BASAVESHWAR URBAN CREDIT SOUHARD
SAHAKARI NIYAMIT SANKESHWAR,
SHANIVARKUT BRANCH, BELAGAVI,
REPRESENTED BY ITS MANAGER,
SHRI NAMADEV MARUTEPPA NARASINGOL,
AGE: 38 YEARS, OCCUAPTION: AGRICULTURE,
R/O. A/P. SULDHAL, TAL. GOKAK,
DIST. BELAGAVI-591101.
... RESPONDENTS
(BY SRI SRINAND A. PACHCHAPURE, ADVOCATE FOR R1(A TO C);
R2-NOTICE SERVED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. SEEKING
TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT DATED
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CRL.RP No. 100027 of 2023
C/W CRL.RP No. 100026 of 2023
21.12.2022 PASSED BY THE IV ADDL. DISTRICT AND SESSIONS
JUDGE, BELAGAVI, AT: BELAGAVI IN CRIMINAL APPEAL NO.
257/2022 IN CONFIRMING THE CONVICTION UNDER SECTION 138
OF N.I. ACT AND SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 02.09.2022 PASSED BY THE J.M.F.C. VIII,
BELAGAVI, IN C.C.NO. 402/2019 IN CONVICTING THE PETITIONER
UNDER SECTION 138 N.I. ACT.
IN CRL.RP.NO.100026/2023:
BETWEEN
1. SHRI BASAVESHWAR URBAN CREDIT SOUHARD
SAHAKARI NIYAMIT SANKESHWAR,
MAIN BRANCH SITUATED AT MALI BUILDING,
NIDASOSI ROAD, SANKESHWAR,
TAL. HUKKERI, DIST. BELAGAVI,
REPRESENTED BY ITS CEO SHRI B.K. KAMAGOUDAR,
AGE: 40 YEARS, OCCUPATION: SERVICE,
R/O. MALI BULIDING, NIDASOSI ROAD,
R. SANKESHWAR, TAL. HUKKERI, DIST. BELAGAVI.
2. SHRI BASAVESHWAR URBAN CREDIT SOUHARD
SAHAKARI NIYAMIT SANKESHWAR,
MAHANTESH NAGAR BRANCH, BELAGAVI,
REPRESENTED BY ITS MANAGER,
SHRI SHRIDHAR VITTAL HANABAR,
AGE: 27 YEARS, OCCUPATION: SERVICE,
R/O. MANTESH NAGAR, BELAGAVI.
... PETITIONERS
(BY SMT.CHETANA S. BIRAJ, ADVOCATE)
AND
1. SHRI BASAVARAJ S/O. NARASAPPA SHINDHE,
SINCE DECEASED BY HIS LRS.,
1A. SMT. UMA W/O. BASAVARAJ SHINDHE,
AGE: 68 YEARS, OCC. HOUSEWIFE,
R/O. PRATHAMESH APARTMENT,
CTS NO. 7314, FLAT NO. S-1,
ANJANEY NAGAR, SECTOR NO.10,
NEAR SIDANAL HOUSE, M.M. EXTENSION,
BELAGAVI-590016.
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CRL.RP No. 100027 of 2023
C/W CRL.RP No. 100026 of 2023
1B. SRI SATISH S/O. BASAVARAJ SHINDHE,
AGE: 41 YEARS, OCC. PRIVATE JOB,
R/O. PRATHAMESH APARTMENT,
CTS NO. 7314, FLAT NO. S-1,
ANJANEY NAGAR, SECTOR NO.10,
NEAR SIDANAL HOUSE, M.M. EXTENSION,
BELAGAVI-590016.
1C. SRI MOHAN S/O. BASAVARAJ SHINDHE,
AGE: 37 YEARS, OCC. PRIVATE JOB,
R/O. PRATHAMESH APARTMENT,
FLAT NO.S-1, CTS NO.7314,
ANJANEY NAGAR, SECTOR NO.10,
NEAR SIDANAL HOUSE, M.M. EXTENSION,
BELAGAVI-590016.
2. SHRI BASAVESHWAR URBAN CREDIT SOUHARD
SAHAKARI NIYAMIT SANKESHWAR,
SHANIVARKUT BRANCH, BELAGAVI,
REPRESENTED BY ITS MANAGER,
SHRI NAMADEV MARUTEPPA NARASINGOL,
AGE: 38 YEARS, OCCUAPTION: AGRICULTURE,
R/O. A/P. SULDHAL, TAL. GOKAK, DIST. BELAGAVI.
... RESPONDENTS
(BY SRI SRINAND A. PACHCHAPURE, ADVOCATE FOR R1 (A TO C);
R2-NOTICE SERVED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. SEEKING
TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT DATED
21.12.2022 PASSED BY THE IV ADDL. DISTRICT AND SESSIONS
JUDGE, BELAGAVI, AT: BELAGAVI IN CRIMINAL APPEAL NO.
256/2022 IN CONFIRMING THE CONVICTION UNDER SECTION 138
OF N.I. ACT AND SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 02.09.2022 PASSED BY THE J.M.F.C. VIII,
BELAGAVI, IN C.C.NO. 160/2019 IN CONVICTING THE PETITIONERS
UNDER SECTION 138 N.I. ACT.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.02.2025, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE THE
FOLLOWING:
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C/W CRL.RP No. 100026 of 2023
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Crl.R.P.no.100027/2023 is filed challenging
judgment/order dated 21.12.20222 passed by IV Addl. District
and Sessions Judge, Belagavi, ('Appellate Court', for short) in
Crl.A.no.257/2022 and judgment of conviction and order of
sentence dated 02.09.2022 passed by VIII JMFC, Belagavi
('Trial Court', for short) in C.C.no.402/2019.
2. While Crl.R.P.no.100026/2023, challenging
judgment/order dated 21.12.20222 passed by IV Addl. District
and Sessions Judge, Belagavi, ('Appellate Court', for short) in
Crl.A.no.256/2022 and judgment of conviction and order of
sentence dated 02.09.2022 passed by VIII JMFC, Belagavi
('Trial Court', for short) in C.C.no.160/2019 is filed.
3. Smt.Chetana S. Biraj, learned counsel for petitioners
submitted that accused no.1 to 3 (petitioners and respondent
no.2), were employees of Shree Basaveshwar Urban Credit
Souhard Sahakari Niyamit ('Society' for short). Respondent
(complainant) had filed private complaint under Section 200 of
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CRL.RP No. 100027 of 2023
C/W CRL.RP No. 100026 of 2023
CrPC, stating that after his retirement from HESCOM, he had
kept retirement money i.e. Rs.35,00,000/-, in deposit with
Society on 07.08.2018, as it was offering higher rate of interest
on fixed deposits. It was stated, accused no.1 and 2 were
working as Managers of society, while accused no.3 was its
Chief Administrative Officer ('CAO' for short) and was
responsible for its day to day affairs. It was further stated,
complainant was informed that date of maturity of deposit was
07.09.2019, when he would be paid total maturity amount of
Rs.39,37,500/-. But, on 20.02.2019, when he approached
Society for maturity amount, accused collected original fixed
deposit receipts and issued two cheques, one bearing
no.855727 dated 28.02.2019 for Rs.20,64,055/-, and other
bearing no.855728 dated 31.03.2019 for Rs.15,67,726/-, both
drawn on Karnataka Bank, Malmaruti Extn. Branch, Belagavi.
4. It was stated, cheque no.855727 was presented on
same day for collection, returned dishonored with endorsement
'insufficient funds' on 22.02.2019. Therefore, he got issued
legal notice dated 28.02.2019 demanding payment within 15
days. Despite service of notice on accused on 28.02.2019,
there was no repayment till 15.03.2019 and thereby committed
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C/W CRL.RP No. 100026 of 2023
offence punishable under Section 138 of Negotiable
Instruments Act, 1881 ('NI Act' for short). Therefore, he filed
private complaint on 25.03.2019. After recording sworn
statement and receiving documents, cognizance was taken in
CC.no.160/2019 and summons issued, accused appeared and
pleaded not guilty.
5. During trial, complainant examined himself as PW1
and got marked Exs.P1 to P24. Petitioner cross-examined PW1
and got marked Exs.D1 to D3 in confrontation. Thereafter, he
was apprised of incriminating circumstances. He denied all
circumstances and did not lead rebuttal evidence.
6. On consideration, trial Court convicted accused no.1
to 3 for offence punishable under Section 138 of NI Act and
sentenced to pay fine amount of Rs.26,00,000/- and in default
of payment to undergo simple imprisonment for one year six
months each. Aggrieved thereby, accused no.1 and 3 filed
Crl.A.no.256/2022 on several grounds. But, same was
dismissed without proper consideration on 21.12.2022.
7. Similarly, cheque no.855728 was presented on
same day for collection, returned dishonored with endorsement
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C/W CRL.RP No. 100026 of 2023
'insufficient funds' on 17.06.2019. Therefore, he got issued
legal notice dated 26.06.2019 demanding payment within 15
days. Despite service of notice on accused on 28.06.2019,
there was no repayment within time and thereby committed
offence punishable Section 138 of NI Act. Therefore, he filed
private complaint on 01.08.2019. After recording sworn
statement and receiving documents, cognizance was taken in
CC.no.402/2019 and summons issued, accused appeared and
pleaded not guilty.
8. During trial, complainant examined himself as PW1
and got marked Exs.P1 to P28. But, petitioners neither entered
witness-box nor produced any documents to substantiate their
case. Thereafter, he was apprised of incriminating
circumstances. He denied all circumstances and did not lead
rebuttal evidence.
9. On consideration, trial Court convicted accused no.1
to 3 for offence punishable under Section 138 of NI Act and
sentenced to pay fine amount of Rs.21,00,000/- and in default
of payment to undergo simple imprisonment for one year six
months each. Aggrieved thereby, accused no.1 and 3 filed
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CRL.RP No. 100027 of 2023
C/W CRL.RP No. 100026 of 2023
Crl.A.no.257/2022 on several grounds. But, same was
dismissed without proper consideration on 21.12.2022.
10. Smt.Chetana S. Biraj, learned counsel for petitioners
at outset submitted, complainant's grievance was against
Society. As per provisions of Section 31 (2) (c) of Karnataka
Souharda Sahakari Act, 1997, ('Act' for short) and Bye-law
no.55, CAO was empowered to operate bank accounts, sign
negotiable instruments etc. Further, subject matter of revision
petitions i.e. cheques in question were by two signatories.
However, notices were not issued to both signatories and CAO,
which was fatal defect, by relying on decision of High Court of
Uttarakhand in case of Garhwal Mandal Vikas Nigam Ltd. v.
Mata Garg & Co., reported in 2010 SCC OnLine Utt 1231
held as follows:
"22. Now, coming to the contention of the learned
counsel for the applicants that no mandatory
notice was issued to the applicant nos. 2 and 3
by the respondent no. 1 as prescribed under
Section 93 of the Act is concerned, I am of the
considered view whenever any person is sought to be
made liable for an offence under Section 138 read
with Section 141 of the Act, service of statutory
notice on the person sought to be made liable is
essential amongst other essential ingredients. I am
fortified in my view by the Apex Court judgment in
the case of "S.M.S. Pharmaceuticals Ltd. v. Neeta
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C/W CRL.RP No. 100026 of 2023
Bhalla" [(2005) 8 Supreme Court Cases 89]. In
that case, the Apex Court while considering the
provisions of Sections 138 and 141 of the Act, has
observed at the foot of paragraph no. 2 as under : -
"It will be seen from the above provisions
that Section 138 casts criminal liability
punishable with imprisonment or fine or
with both on a person who issues a cheque
towards discharge of a debt or liability as a
whole or in part and the cheque is
dishonoured by the bank on presentation.
Section 141 extends such criminal liability in
case of a company to every person who at
the time of the offence, was in charge of,
and was responsible for the conduct of the
business of the company. By a deeming
provision contained in Section 141 of the
Act, such a person is vicariously liable to be
held guilty for the offence under Section
138 and punished accordingly. Section 138
is the charging section creating criminal
liability in case of dishonour of a cheque and
its main ingredients are:
(i) issuance of a cheque,
(ii) presentation of the cheque,
(iii) dishonour of the cheque,
(iv) service of statutory notice on the
person sought to be made liable, and
(v) non-compliance or non-payment in
pursuance of the notice within 15 days of
the receipt of the notice."
11. She also relied on decision in case of SMS
Pharmaceuticals Ltd. v. Neeta Bhalla, reported in (2005) 8
SCC 89 held at para 19 as follows:
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C/W CRL.RP No. 100026 of 2023
"(a) It is necessary to specifically aver in a complaint
under Section 141 that at the time the offence was
committed, the person accused was in charge of,
and responsible for the conduct of business of the
company. This averment is an essential
requirement of Section 141 and has to be made in
a complaint. Without this averment being made in
a complaint, the requirements of Section 141
cannot be said to be satisfied.
(b) The answer to the question posed in sub-para (b)
has to be in the negative. Merely being a director of
a company is not sufficient to make the person
liable under Section 141 of the Act. A director in a
company cannot be deemed to be in charge of and
responsible to the company for the conduct of its
business. The requirement of Section 141 is
that the person sought to be made liable
should be in charge of and responsible for the
conduct of the business of the company at the
relevant time. This has to be averred as a fact
as there is no deemed liability of a director in
such cases.
(c) The answer to Question (c) has to be in the
affirmative. The question notes that the managing
director or joint managing director would be
admittedly in charge of the company and
responsible to the company for the conduct of its
business. When that is so, holders of such positions
in a company become liable under Section 141 of
the Act. By virtue of the office they hold as
managing director or joint managing director, these
persons are in charge of and responsible for the
conduct of business of the company. Therefore,
they get covered under Section 141. So far as the
signatory of a cheque which is dishonoured is
concerned, he is clearly responsible for the
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C/W CRL.RP No. 100026 of 2023
incriminating act and will be covered under sub-
section (2) of Section 141."
(emphasis supplied)
12. It was submitted as per bye-laws, any cheque
issued by society was to be placed before Board and only after
approval cheque could be executed and issued by CAO. In
absence of above procedure, cheque issued be invalid,
unenforceable and not binding on Society. Therefore,
complainant could not sustain claim based on such cheque.
13. It was submitted, impugned judgments/orders
passed by trial Court suffered from yet another material
irregularity. It was submitted, after recording of complainant's
evidence, incriminating material was put to accused and their
statement under Section 313 of CrPC was recorded. Thereafter,
they did not lead evidence. Therefore, proceedings had
progressed to stage of arguments, when complainant filed
applications for recalling of PW1 and for marking of additional
documents. In CC.no.160/2019, statement of accused was
recorded on 06.11.2019. After they denied entire incriminating
material as false, it was posted for defence evidence. On
06.12.2019 defence evidence was taken as 'nil' and matter was
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C/W CRL.RP No. 100026 of 2023
posted for arguments. On 02.01.2020, application for recalling
of PW1 was filed. On 22.02.2020, another application was filed
for marking of additional documents. Applications were allowed
on same day and on 28.02.2019, further evidence was
recorded with marking of Ex.P16 and Ex.P22 (a). Thereafter on
21.04.2022, complainant got marked Ex.P23 to Ex.P24(a to j)
and matter was straight away posted for arguments. Even in
CC.no.402/2019 also similar sequence of events, albeit on
different dates occurred.
14. It was submitted, apprisal of incriminating materials
to accused and was a mandatory stage of procedural protection
provided to accused and violation would be fatal. Relying upon
decisions of this Court in case of Shivaji v. Deepak
(Crl.P.no100241/2018 disposed of on 13.03.2019) and Sunil
Yadav v. YC Manju (Crl.P.no664/2020 disposed of on
07.02.2025), learned counsel prayed for allowing petitions.
15. Learned counsel urged specific contention confined
to Crl.R.P.no.100027/2023, that very demand notice - Ex.P3
mentioned incorrect cheque number as 855726, even though
Cheque number on Ex.P-1 was 855728. Therefore, impugned
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judgments/orders were liable to be set-aside on this fatal
ground alone. On above grounds sought for allowing revisions.
16. On other hand, Srinand A. Pachhapure, learned
counsel for respondent opposed petition, by contending that
they were filed against concurrent findings. It was submitted,
petitioner's contention about violation of procedure with Section
313 of CrPC, was contrary to record. It was submitted, after
completion of complainant's deposition, statement of accused
was recorded 06.11.2019. It was submitted, though application
for recalling of PW1 was filed, allowed and further evidence
recorded, documents marked were Ex.P16 and Ex.P22 (a). It
was submitted, while passing impugned judgment/order by trial
Court, there was virtually no reference or reliance upon said
material. Thus, contention about violation of procedure under
Section 313 of CrPC, was either misconceived or hyper
technical. It was submitted, petitioners had failed to make out
case of any prejudice. It was submitted, Hon'ble Supreme
Court in Suresh Chandra Bahri v. State of Bihar, reported in
AIR 1994 SC 2420; Shobhit Chamar and Another v. State
of Bihar, reported in AIR 1998 SC 1693 and Keya
Mukherjee v. Magma Leasing Limited and Another,
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C/W CRL.RP No. 100026 of 2023
reported in 2008 (8) SCC 447, had held mere
defective/improper examination under Section 313 of CrPC is
no ground for setting aside conviction, unless it had resulted in
prejudice to accused.
17. Insofar as contention about failure to issue notice, it
was submitted Hon'ble Supreme Court in cases of SMS
Pharmaceuticals Ltd. (supra); Standard Chartered Bank v.
State of Maharashtra and Others, reported in 2016 (6)
SCC 62, held requirements of Section 141 would be met if
there are clear averments that person who had issued cheque
was authorized to do so and notice is issued to such person.
18. It was submitted, in case of Pradeep Kumar
Malhotra v. State of West Bengal, reported in 2011 SCC
OnLine Cal 1700, High Court of Kolkata, elaborated meaning
of word 'notice' and held:
"12. On this point the learned Counsel appearing for the
O.P. submits that the addition of M/s. N.K.
Choudhury as mentioned in the notice was a mere
sup usage and it would not in any way vitiate the
proceedings. In this connection the learned Counsel
appearing for the O.P. has referred to the case
of Barendra Kumar Bera v. Santanu @ Chottan
Mukherjee (supra). In the aforesaid decision it has
been held by the Hon'ble Single Judge in paragraph
14 as follows:
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C/W CRL.RP No. 100026 of 2023
The ordinary dictionary meaning of the word
'notice' is intimation or instruction to someone
to do something. It is making someone aware
of some fact. According to the common parlance
a notice need not be in writing. If statute does
not explicitly provide that the notice must be in
writing then in such a situation verbal notice is
sufficient, for example, notice under Section 93
of the N.I. Act may be oral. Now Section 138(b)
of the N.I. Act provides clearly that the payee or
the holder in due course of the cheque has to
make a demand for the payment of the amount
of money by giving a notice in writing to the
drawer of the cheque. Therefore, there is no
scope to argue otherwise. The question is as to
the manner of giving notice. There are no rules
to the Act providing for manner of giving of
notice. Had there been any statutory rule
framed under the Act concerning manner of
giving notice then such a rule would have been
mandatory to be followed. The statute does not
demand anything more except saying that the
notice has to be in writing asking the drawer to
make payment. In such circumstances, the
question therefore is what would be the legal
consequence of a notice otherwise valid and
since received by the drawer but not signed by
the agent of the party. The law is very clear
that the notice under Section 138(b) need not
necessarily be signed by the payee or the
holder in due course. An authorized
representative or agent of the payee or the
holder in due course may issue the notice and
here the Advocate acting as agent of the payee
issued the notice in his letterhead but without
signature. As already observed, there is no
statutory Rule providing for mode of issuance of
notice or of any form...."
On above grounds, sought for dismissal of revision
petition.
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19. Heard learned counsel and perused impugned
judgment and order.
20. From above, common points that arise for
consideration in both revision petitions are:
"1. Whether petitioner establishes that trial
Court committed fatal error in not apprising
accused about further incriminating material
against him, consequent to further evidence
recorded, after matter had crossed stage of
recording of statement of accused under
Section 313 of CrPC?
2. Whether petitioner establishes fatal error
insofar as issuance of notice under Section
141 read with Section 138 (b) of NI Act?
3. Whether impugned judgment/orders passed
by trial and Appellate Court herein call for
interference?
21. This revision petition is under Section 397 read with
Section 401 of CrPC. As per decision of Hon'ble Supreme Court
in case of Amit Kapoor v. Ramesh Chander and another
reported in (2012) 9 SCC 460, scope of interference against
concurrent findings is held to be extremely limited and normally
only on questions of law and not findings of fact.
22. While passing impugned judgment, both Courts
have taken note of defence set up by petitioner that issuance of
cheques were as security and not towards discharge of legally
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C/W CRL.RP No. 100026 of 2023
enforceable debt and overruled same by referring to admission
about due execution and issuance of cheques attracting
presumption under Section 139 of NI Act?.
23. It is also noticed that petitioner did not urge
contentions urged herein either before trial Court or before
Appellate Court, which would have attracted specific findings.
At same time, contentions about failure to urge such
contentions would not by itself be sufficient to discard same as
they are questions of law and can be urged even in revision.
Point no.1:
24. A bare perusal of order sheet of trial Court would
clearly indicate that after conclusion of evidence of
complainant, trial Court had apprised accused of incriminating
material against them and sought explanation as mandated
under Section 313 of CrPC. But, thereafter, when matter had
progressed to stage of arguments, application was filed
complainant for recalling of PW-1 and for marking of additional
documents. Said application was allowed, PW-1 recalled and
further evidence recorded, wherein complainant got marked
Exs.P23 and Ex.P24. Thereafter, petitioner was provided
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opportunity of cross examination. Subsequently, matter was
posted for arguments, without apprising petitioner about
incriminating circumstances consequent to recording of further
evidence. Admittedly, particular facts of this case do not admit
of any order dispensing with recording of statement of accused
under Section 313 as provided under proviso to Section 313 (b)
of CrPC. Therefore ratio in Sunil Yadav's case (supra) would
not apply. On other hand, as per decision in Shivaji Govekar's
case (supra) where for failure to record statement under
Section 313 of CrPC, was held non-fatal and remanded matter
back to trial Court to redo proceedings from said stage, would
appear attracted.
25. But, learned counsel for respondent has contended
that petitioner cannot impugn concurrent judgment of
conviction on ground of violation of Section 313 of CrPC unless
he establishes a case of prejudice by relying on decisions in
case of Suresh Chandra Bahri, Shobit Chamar and Keya
Mukherjee's cases (supra).
26. In case of Suresh Chandra Bahri, referring to
three judges decision in case of Shivaji Sahabrao Bobade v.
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State of Maharashtra, reported in (1973) 2 SCC 793, it is
held, failure to apprise every incriminating material need not
vitiate trial unless accused is able to establish case of prejudice.
Similar view is echoed in Shobit Chamar and Keya
Mukherjee's cases (supra). In view of ratio laid down by
Hon'ble Supreme Court, it would require for petitioner to
establish prejudice caused to vitiate finding recorded by trial
Court.
27. Perusal of trial Court records reveals that there is
sufficient compliance with requirement of Section 313 of CrPC
except insofar as Exs.P23 and 24. While Ex.P23 is covering
letter for issuance of audited report of petitioner society,
Ex.P24 is audited report. While passing judgment, trial Court
has not relied or referred to said documents. When there is
substantial compliance with Section 313 of CrPC, it has to be
concluded that petitioner did not suffer any prejudice due to
non-compliance insofar as Ex.P23 and 24. Point no.1 is
answered in negative.
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Point no.2:
28. In instant case, complainant arrayed - Shree
Basaveshwar Urban Credit Souhard Sahakari Niyamit
represented by its Manager, Sri VS Hanabar as accused no.1;
Shree Basaveshwar Urban Credit Souhard Sahakari Niyamit
represented by its Manager, Sri NM Narasingagol as accused
no.2; and Shree Basaveshwar Urban Credit Souhard Sahakari
Niyamit represented by its CEO, Sri BK Kamagoudar as accused
no.3.
29. To establish compliance with requirement of Section
138 (b), complainant relies on Ex.P3 - notice. Admittedly it is
addressed to "The Manager, Shree Basaveshwar Urban Credit
Souhard Sahakari Niyamit, Sankeshwar, Mahanteshnagar
Branch, Belagavi" i.e. accused no.1 and is delivered in person.
30. While passing impugned judgment, trial Court held
acknowledgement issued by Society on Ex.P3 amounted to
notice to society and on its failure to pay cheque amount,
offence under Section 138 was established. It noticed that
during cross examination, main defenses set-up by petitioners
was not about non-receipt of notice, but dispersed such as
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cheque being issued for security purposes, secondly that it was
not issued to complainant but it was misused and thirdly by
confronting PW-1 with Exs.D1 to D3 contending that maturity
amounts in FDRs were paid and acknowledged. Complainant did
not dispute signature on Exs.D1 to D3 but contended only
thereafter cheque was issued.
31. When CEO of society is arraigned as accused no.3
and does not raise defence about non-receipt of notice,
especially in present case, where seal of society is affixed
acknowledging receipt of Ex.P3 notice. Trial Court has taken
note of same and held sufficient compliance with requirement
of notice under Section 93 read with Section 138 of NI Act.
32. In instant case, even accused no.1, at whose
branch, notice was received, chose to reply pointing out
authority authorized to receive notices on behalf of society or
deny liability of cheque. It relied on decision in case of Jain
Associates v. Deepak Chaudhary & Co., reported in 1999
SCC OnLine Del 269, to conclude that acknowledgment of
Ex.P3 notice would amount to deemed notice to Society.
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33. In Appeal, specific contention taken is about
arraigning accused no.3 without issuing specific notice as he
had not signed cheque. Accused no.3 herein is CEO of Society.
34. One of grounds urged in these revision petitions by
petitioners is that accused no.3 is only authorized person to act
on behalf of Society for issuing cheque by referring to Section
31 (2) (c) of Act read with bye-law no.55 of Society. When,
deposit of money by complainant is not in dispute, maturity of
said deposits for payment is not in dispute, issuance of cheque
is not shown to be towards any other transaction, It is rather
unfortunate for Society to harass it depositor by taking such
cantankerous contentions to dilate proceedings and shirk its
responsibility of discharging its legal debt, by urging one
technical pleas after another.
35. As noted by both Courts, there is no action taken by
Society for protecting itself against liability under lost cheques
if they were genuinely lost. Likewise, absolutely no material is
placed on record about context in which petitioner had issued
cheque as security. For foregoing reasons, point no.2 is also
answered in negative.
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36. In view of same, point no.3 is answered in negative.
Consequently, following:
ORDER
Criminal Revision Petitions are dismissed.
SD/-
(RAVI V.HOSMANI)
JUDGE
GRD
CT:PA
