Karnataka High Court
M/S. Preethi'S vs M/S T T K Prestige Limited on 13 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.266/2022
C/W
CRIMINAL PETITION NO.7694/2022
IN CRIMINAL REVISION PETITION NO.266/2022:
BETWEEN:
1. M/S. PREETHI'S,
NO.129, OPP. CANARA BANK,
MATHIKERE MAIN ROAD,
BENGALURU-560 054.
REPRESENTED BY ITS PROPRIETRIX
MRS. ELIZABETH VARGHESE.
2. MRS. ELIZABETH VARGHESE,
PROPRIETRIX, PREETHI'S,
NO.129, OPP. CANARA BANK,
MATHIKERE MAIN ROAD,
BENGALURU-560 054. ... PETITIONERS
(BY SRI. SIJI MALAYIL, ADVOCATE)
AND:
M/S. T.T.K. PRESTIGE LIMITED,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT 11TH FLOOR,
BRIGADE TOWERS, NO.135,
BRIGADE ROAD,
BENGALURU-560 025.
REPRESENTED BY ITS
2
SR. GENERAL MANAGER
(LEGAL AND TAXATION). ... RESPONDENT
(BY SRI. GAURAV SINGH GAUR, ADVOCATE FOR
SRI. JIDESH KUMAR M.D., ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT AND ORDER DATED 01.07.2015 PASSED
BY THE XXI ADDL.C.M.M., BENGALURU IN C.C.NO.15680/2010
CONFIRMED BY THE LEARNED LV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN CRL.A.NO.1000/2015, DATED
23.10.2019 AND ACQUIT THE PETITIONER BY ALLOWING THIS
CRL.RP.
IN CRIMINAL PETITION NO.7694/2022:
BETWEEN:
1. M/S. PREETHI'S,
NO.129, OPP. CANARA BANK,
MATHIKERE MAIN ROAD,
BENGALURU-560 054.
REPRESENTED BY ITS PROPRIETRIX
MRS. ELIZABETH VARGHESE.
2. MRS. ELIZABETH VARGHESE,
PROPRIETRIX, PREETHI'S,
NO.129, OPP. CANARA BANK,
MATHIKERE MAIN ROAD,
BENGALURU-560 054. ... PETITIONERS
(BY SRI. SIJI MALAYIL, ADVOCATE)
AND:
M/S. T.T.K. PRESTIGE LIMITED,
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT 11TH FLOOR,
BRIGADE TOWERS, NO.135,
3
BRIGADE ROAD,
BENGALURU-560 025.
REPRESENTED BY ITS
SR. GENERAL MANAGER
(LEGAL AND TAXATION). ... RESPONDENT
(BY SRI. GAURAV SINGH GAUR, ADVOCATE FOR
SRI. JIDESH KUMAR M.D., ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.PC (FILED U/S 528 BNSS) PRAYING TO SET ASIDE THE
IMPUGNED JUDGMENT AND SENTENCE DATED 23.10.2019
PASSED BY THE 55TH ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN CRL.RP.NO.600/2015 AND C.C.NO.15680/2010
BEFORE XXI ADDL.C.M.M, BENGALURU, DATED 01.07.2015 AND
ACQUIT THE APPELLANT BY ALLOWING THE ABOVE APPEAL.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 29.04.2025, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
Crl.R.P.No.266/2022 is filed by the accused challenging the
judgment of conviction and sentence dated 01.07.2015 passed
in C.C.No.15680/2010 and judgment of confirmation dated
23.10.2019 passed in Crl.A.No.1000/2015.
2. Crl.P.No.7694/2022 is filed by the accused
challenging the order dated 23.10.2019 passed in
Crl.R.P.No.600/2015 allowing the revision petition and enhancing
the fine amount to Rs.24 lakhs.
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3. The factual matrix of the case of the complainant
before the Trial Court invoking Section 200 of Cr.P.C. for the
offence punishable under Section 138 of the Negotiable
Instruments Act ('NI Act' for short) is that the complainant is a
Public Limited Company engaged in manufacturing, marketing
and selling of Prestige Range of kitchen utensils. The accused
No.1 is the proprietorship concern represented by its proprietor
accused No.2. The accused was appointed as authorized dealer
and the complainant has supplied their Prestige range of
products as per the purchase orders placed by the accused and
the accused was liable to pay the value of the goods supplied for
them. Towards the said payment, the accused issued a cheque
bearing No.649099 dated 19.12.2009 drawn on ICICI Bank Ltd.,
Malleshwaram Branch, Bangalore, for a sum of Rs.15,32,008/-
and it came to be dishonoured on its presentation for
encashment as "funds insufficient". The same was intimated to
the accused through the legal notice by demanding for the
payment of cheque amount. The accused by giving vague reply
failed to pay the cheque amount and thereby committed an
offence punishable under Section 138 of the NI Act. Hence, the
complainant filed a private complaint and sworn statement of the
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complainant was recorded and cognizance was taken and
summons was issued against the accused. The summons was
duly served on the accused and she failed to appear before the
Court and hence NBW was issued and she was secured before
the Court and thereafter enlarged on bail. The plea was
recorded and in the plea she did not accept the claim and
claimed to be tried and hence and complainant examined its
authorized representative as P.W.1 and got marked the
documents at Exs.P.1 to 23. The statement of the accused was
recorded under Section 313 of Cr.P.C. and she denied the
incriminating evidence that she has got defence and examined
herself as D.W.1 and also examined one witness as D.W.2 and
got marked the documents at Exs.D.1 to 3. The Trial Court
having considered both oral and documentary evidence placed
on record, answered the points for consideration in the
affirmative and convicted the accused for the offence punishable
under Section 138 of the NI Act and sentenced to pay a fine of
Rs.15,42,008/- and in default to undergo simple imprisonment
for a period of ten months.
4. Being aggrieved by the said judgment of conviction,
the accused filed Crl.A.No.1000/2015. The Appellate Court
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dismissed the said appeal and confirmed the judgment of the
Trial Court.
5. The complainant also filed Crl.R.P.No.600/2015
before the Revisional Court challenging the sentence contending
that the sentence imposed by the Trial Court is meager and it
requires enhancement. The complainant's revision petition was
allowed and ordered accused Nos.1 and 2 to pay fine of Rs.24
lakhs and in default to undergo simple imprisonment for a period
of ten months and the judgment of the Trial Court was modified
enhancing the fine amount.
6. Being aggrieved by both the orders, the accused has
preferred the criminal revision petition and criminal petition. In
Crl.R.P.No.266/2022, prayer is made to set aside the judgment
of confirmation passed in Crl.A.No.1000/2015 and to acquit the
revision petitioner. In Crl.P.No.7694/2022, the petitioner has
prayed this Court to set aside the impugned judgment and
sentence dated 23.10.2019 passed by the LV Additional City Civil
and Sessions Judge, Bangalore in Crl.R.P.No.600/2015 and to
acquit the accused by setting aside the conviction order passed
in C.C.No.15680/2010.
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7. The main grounds urged in Crl.R.P.No.266/2022 is
that the debt/liability of the petitioner was not a legally
enforceable debt. It is contended that on 06.08.2009, the
petitioner issued a letter to the respondent stating closure of
their account and the petitioner is ready to clear the due
outstanding amount from the respondent. Thereafter, there was
no response from the respondent and the witness P.W.1 also
does not know about the said letter issued by the petitioner.
Wherefore, the Trial Court as well as the Appellate Court failed to
consider the same. The said document is marked before the
Trial Court as Ex.D.3. It is also contended that a legal notice
dated 16.01.2010 was issued calling upon the petitioner to pay a
sum of Rs.15,32,008/- and the petitioner had given the reply to
the said notice on 02.02.2010, wherein request was made to the
respondent to produce the credit notes and ledger statement to
close the same. The respondent deliberately with malafide
intention filed the above case to harass the petitioner. The
copies of the legal notice dated 16.01.2010 and reply notice
dated 02.02.2010 are marked before the Trial Court as Exs.P.9
and 10 respectively. Both the Courts failed to consider the
same. The learned counsel contend that both the Courts failed
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to consider the chief examination of D.W.2 as well as Ex.P.3(b),
wherein it is specifically contended that the cheque was issued
for security purpose and cheque was handed over by D.W.2 to
the respondent as security and this aspect has not been
considered by both the Courts.
8. In Crl.P.No.7694/2022 it is contended that the
Revisional Court committed an error in considering the material
on record and similar grounds have been urged in the said
petition also. It is contended that both the Courts failed to take
note of the material on record and fails to consider that it is the
settled principle that in a criminal case, the respondent has to
prove beyond reasonable doubt. The learned Sessions Judge
has failed to appreciate the irregularities and divergent facts
available in the documentary proof provided by the respondent
in support of his case. Both the Courts have committed an error
and the Revisional Court while exercising the revisional
jurisdiction also failed to consider the material on record and
erroneously passed the order enhancing the fine amount without
any basis.
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9. The learned counsel for the revision petitioners in
support of his arguments relied upon the judgment of the Apex
Court passed in Crl.A.No.73/2007 in the case of A.C.
NARAYANAN v. STATE OF MAHARASHTRA AND ANOTHER
and brought to the notice of this Court paragraph No.15, wherein
it is held that while holding that there is no serious conflict
between the decisions in MMTC Ltd. and another v. Medchol
Chemicals and Pharma (P) Ltd. and Janki Vashdeo
Bhojwani and another v. Indusind Bank Ltd and others,
the larger Bench clarified the position and answered the
questions framed that the power of attorney holder can depose
and verify on oath before the Court in order to prove the
contents of the complaint. However, the power of attorney
holder must have witnessed the transaction as an agent of the
payee/holder in due course or possess due knowledge regarding
the said transactions. The learned counsel would contend that
P.W.1 was not having any such knowledge.
10. The learned counsel also relied upon the judgment of
the Apex Court passed in Civil Appeal No.9642/2010 in the
case of MANISH MAHENDRA GALA AND OTHERS v.
SHALINI BHAGWAN AVATRAMANI AND OTHERS, and
10
brought to the notice of this Court paragraph No.28, wherein
discussion was made with regard to the judgments in the cases
of Janki Vashdeo Bhojwani (supra) as well as A.C.Narayanan
(supra). It is held that, to resolve the controversy with regard to
the powers of the general power of attorney holder to depose on
behalf of the person he represents, this Court upon consideration
of all previous relevant decisions on the aspect clarified that the
power of attorney holder can depose and verify on oath before
the Court but he must have witnessed the transaction as an
agent and must have due knowledge about it. The power of
attorney holder who has no knowledge regarding the transaction
cannot be examined as a witness. The functions of the general
power of attorney holder cannot be delegated to any other
person without there being a specific clause permitting such
delegation in the power of attorney. The learned counsel also
brought to the notice of this Court the discussions made in
paragraph No.29 of the judgment.
11. The learned counsel also relied upon the judgment of
the Apex Court passed in Crl.A.No.270/2022 in the case of
M/S. TRL KROSAKI REFRACTORIES LTD. v. M/S. SMS ASIA
PRIVATE LIMITED AND ANOTHER. Referring this judgment,
11
the learned counsel brought to the notice of this Court that in
the said judgment also the cases of A.C.Narayanan, MMTC,
Vishwa Mitter v. O.P.Poddar and Janki Vashdeo Bhojwani
was discussed. The learned counsel also brought to the notice of
this Court that in paragraph No.10, extraction was made with
regard to the judgment in the case of A.C.Narayanan i.e.,
paragraph Nos.29, 30, 33, 33.1 and 33.2. The learned counsel
also brought to the notice of this Court paragraph No.14,
wherein discussion was made with regard to the manner in
which the complaint is drafted and also discussion made in
paragraph No.17. The learned counsel would contend that this
judgment is aptly applicable to the facts of the case on hand.
12. The learned counsel also relied upon the judgment of
the High Court of Kerala at Ernakulam passed in
Crl.M.C.No.8287/2022 in the case of RAZAK METHER v.
STATE OF KERALA AND ANOTHER and brought to the notice
of this Court paragraph No.8 of the judgment, wherein also
A.C.Narayanan case was discussed.
13. The learned counsel also relied upon the judgment of
the Apex Court passed in Special Leave to Appeal (Criminal)
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No.5583/2022 in the case of M/S. RAJCO STEEL
ENTERPRISES v. KAVITA SARAFF AND ANOTHER and
brought to the notice of this Court the detailed discussion made
in paragraph No.11.
14. The learned counsel also relied upon the judgment of
the Apex Court passed in Crl.A.No.830/2014 in the case of
M/S. INDUS AIRWAYS PVT. LTD. AND OTHERS v. M/S.
MAGNUM AVIATION PVT. LTD AND ANOTHER and brought
to the notice of this Court paragraph No.13, wherein the Apex
Court in detailed discussed that the Cheque cannot be held to
have been drawn for an existing debt ore liability. The payment
by cheque in the nature of advance payment indicates that at
the time of drawal of cheque, there was no existing liability. The
learned counsel also brought to the notice of this Court the
discussion made in paragraph No.19 with regard to the criminal
liability under Section 138 of the NI Act. If a cheque is issued as
an advance payment for purchase of goods and for any reason
purchase order is not carried to its logical conclusion either
because of its cancellation or otherwise and material or goods for
which purchase order was placed is not supplied by the supplier,
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the cheque cannot be said to have been drawn for an existing
debt or liability.
15. The learned counsel also relied upon the judgment of
the Apex Court in the case of KUMAR EXPORTS v. SHARMA
CARPETS reported in (2009) 2 SCC 513 and brought to the
notice of this Court paragraph No.25, wherein discussion was
made that the complainant did not produce any books of account
or stock register maintained by him in the course of his regular
business or any acknowledgement for delivery of goods to
establish that as a matter of fact woolen carpets were sold by
him to the appellant.
16. The learned counsel referring these judgments would
contend that these judgments are aptly applicable to the facts of
the case on hand and hence this Court has to exercise its
revisional powers and set aside the judgment of the Trial Court
and the Revisional Court. The learned counsel would contend
that both the Courts failed to take note of the fact that the
cheque was issued towards the security and witness is also not a
competent witness. In reply notice, it is specifically stated about
the defence. Ex.P.6 is the notice and Ex.P.10 is the reply notice.
14
The learned counsel would contend that in 2009, the petitioner
has not purchased anything from the complainant/respondent.
17. Per contra, the learned counsel for the
respondent/complainant would contend that in reply notice, the
petitioner has not stated anything about that the cheque was
issued towards the security. The learned counsel contend that
the transaction is admitted that it was a credit transaction and
the very contention of the petitioner that the cheque was issued
towards security is not correct. The materials are supplied and
hence the cheque was given. The issuance of the cheque is also
admitted and in the reply not pleaded about the defence which
was taken. The admission on the part of D.W.1 and D.W.2 is
clear and the same was discussed by the Trial Court as well as
the Revisional Court. The fact that it was a business transaction
is not in dispute and the said transaction was taken place for a
longer period.
18. The learned counsel in support of his arguments
relied upon the list of dates and events that cheque dated
19.12.2009 was issued towards legally enforceable debt due.
The fact that the cheque was returned with an endorsement
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"funds insufficient" is not in dispute. The demand was made and
not complied the demand and hence, the complaint was filed and
cognizance was taken. The Trial Court having considered the
material on record directed to pay an amount of Rs.15,32,008/-.
The Sessions Judge also was pleased to dismiss criminal appeal
and allow the revision petition. Having taken note of the fact
that the transaction was of the year 2009, rightly directed to pay
the fine of Rs.24 lakhs. The learned counsel would contend that
this Court directed to make the payment while suspending the
sentence and accordingly the amount of Rs.10 lakhs was
withdrawn and also the petitioner has tendered the DD for an
amount of Rs.5 lakhs to the respondent before the Court and the
respondent has duly encashed the aforesaid mentioned DD
received on 14.11.2024. The learned counsel contend that
scope of interference in revisional jurisdiction is limited. When
there exists no patent factual defect or error of jurisdiction or
legal infirmity or perversity in the judgment by the Trial Court,
the question of exercising the revisional jurisdiction does not
arise. The Revisional Court should not dwell into the
proportionality of quantum of compensation awarded by the Trial
Court unless the prosecution have shown special circumstances
16
for the same. The undue leniency should not be shown to the
convict especially in case of concurrent findings.
19. The learned counsel also relied upon the judgment of
the Apex Court in the case of STATE OF MAHARASHTRA v.
JAGMOHAN SINGH KULDIP SINGH ANAND AND OTHERS
reported in (2004) 7 SCC 659, wherein it is held that the
Revisional Court is empowered to exercise all the powers
conferred on the Appellate Court by virtue of the provisions
contained in Section 401 of Cr.P.C. Section 401 of Cr.P.C. is a
provision enabling the High Court to exercise all powers of an
Appellate Court, if necessary, in aid of power of superintendence
or supervision as a part of power of revision conferred on the
High Court or the Sessions Court. Section 397 of Cr.P.C. confers
power on the High Court or the Sessions Court, as the case may
be, for the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding, sentence or
order, recorded or passed, and as to the regularity of any
proceedings of such inferior Court. The revisional powers of the
High Court cannot be exercised as a second appellate jurisdiction
and the High Court is required to exercise self-restraint in
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revisional matters. It is contended that the petitioners have
failed to demonstrate any such error and thus in the absence of
the same, this Court must refrain from re-examining the facts or
re-assessing the concurrent findings.
20. The learned counsel also relied upon the order of this
Court passed in Crl.R.P.No.200068/2017 in the case of BABU
v. JAVINDRASINGH and also in the case of A. BABU v.
MANJAPPA.T reported in MANU/KA/3915/2021, wherein the
Courts refrained from interfering with the concurrent findings of
the Trial Court. The Hon'ble High Court has specifically noted
that there were no factual defects, error of jurisdiction, legal
infirmities, or manifest perversities in the findings arrived at by
the Trial Court. It is also contended that the Revisional Court
should not dwell into the proportionality of quantum of
compensation awarded by the Trial Court. The respondent was
contractually liable to pay 18% per annum on the delayed
payment, however the Sessions Judge while adjudicating the
matter, has duly taken into consideration the ratio laid down by
the Apex Court in the case of MAINUDDIN ABDUL SATTAR
SHAIKH v. VIJAY D. SALVI reported in (2015) 9 SCC 622
and imposed the interest of 9% per annum. Even if the same is
18
considered, the quantum of compensation aggregate to
Rs.36,37,238/- as on 26.03.2015.
21. The learned counsel submits that in the case of
KAUSTUBH INFRA SPACE v. THE STATE OF JHARKHAND
AND OTHERS reported in MANU/JH/0305/2024, the High
Court of Jharkhand at Ranchi observed that in the judgment of
the Apex Court reported in (2011) SC 745, the Apex Court has
considered the provisions relating to compensation and has
recorded the finding with regard to discretion to direct payment
of compensation.
22. The learned counsel contend that undue leniency
should not be shown to the convict, especially in case of
concurrent findings and relied upon the judgment of the Apex
Court in the case of NAGPAL TRADERS v. DAVINDER SINGH
reported in (2017) 11 SCC 431, wherein an observation is
made that this Court has on several occasions cautioned the
Courts that undue leniency should not be shown to accused
facing charges under Section 138 of the NI Act.
23. The learned counsel also produced the tabular
representation regarding interest that if it is taken at 18%, it
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would have been Rs.57,42,469.66/- as on 26.03.2025 and if it is
9%, it would have been Rs.36,37,238.83/- as on 26.03.2025
and if it is twice the cheque amount, it would have been
Rs.30,64,016/-. The learned counsel contend that the Revisional
Court has also not granted the interest and lesser fine amount is
awarded.
24. The learned counsel also relied upon the judgment of
the Apex Court in the case of SRIPATI SINGH (SINCE
DECEASED) THROUGH HIS SON GAURAV SINGH v. STATE
OF JHARKHAND AND ANOTHER reported in 2021 SCC
Online SC 1002 and relied upon paragraph No.17, wherein it is
held that the dishonour of security cheque will attract
presumption under Sections 139 and 118 of the NI Act.
25. The learned counsel also relied upon the judgment of
the Apex Court in the case of BIR SINGH v. MUKESH KUMAR
reported in (2019) 4 SCC 197 regarding presumption under
Sections 118 and 139 of the NI Act. The learned counsel also
relied upon the order passed by this Court in the case of
H.N.RAVI v. GURUVEGOWDA reported in MANU/KA/0310/
2022 and relied upon paragraph No.21, wherein it is stated that
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the High Court has got suo-moto powers of enhancement under
revision jurisdiction, of course after giving an opportunity of
hearing to the accused.
26. The learned counsel also relied upon the judgment of
the Apex Court in the case of Mainuddin Abdul Sattar Shaikh
(supra), wherein it is held that compensation should be twice the
cheque amount to achieve the object of Chapter XVII of the NI
Act, which is to increase the credibility of the instrument.
27. The learned counsel referring these judgments would
contend that there are no grounds to invoke the revisional
jurisdiction.
28. In reply, the learned counsel for the petitioners
submits that Ex.P.22 shows that the payment was made. The
learned counsel submits that in the reply notice, the petitioner
had asked to furnish the statement, but the respondent has not
issued any statement. The learned counsel submits that 11
invoices are for the period from 24.12.2008 to 31.12.2008. The
learned counsel submits that the payment was made and
difference would be only Rs.6,40,882/-, since they had made the
payment of Rs.34 lakhs and odd. The learned counsel contend
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that even during the course of cross-examination also, it is
suggested that liability is only Rs.8 lakhs.
29. In reply, the learned counsel for the
respondent/complainant would contend that power of attorney
was given in terms of Ex.P.1 and authorization was given in
terms of Ex.P.2 and reply was given in terms of Ex.P.10 and
interference of this Court is not required as no case is made out
to exercise the revisional jurisdiction.
30. Having heard the learned counsel for the petitioners
and the learned counsel for the respondent and also considering
the principles laid down in the judgments relied upon by both the
learned counsel and also considering the grounds urged in the
criminal revision petition as well as criminal petition, the points
that arise for the consideration of this Court are:
(i) Whether the Trial Court and the Appellate
Court committed an error in not considering
the material available on record and whether
this Court can exercise the revisional
jurisdiction?
(ii) What order?
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Point No.(i):
31. Having considered the material available on record
and also the principles laid down in the judgments referred
(supra), it is very clear that scope of revision is limited. If any
finding is patently error regarding exercising of jurisdiction and
the scope and ambit of revisional jurisdiction is to examine its
correctness, legality and propriety of the order. It is not in
dispute that the complainant is represented by its power of
attorney holder and he reiterated the contents of the complaint
during the course of his evidence and got marked the documents
at Exs.P.1 to 23. Ex.P.1 is the power of attorney, Ex.P.2 is the
resolution of giving authorization, Ex.P.3 is the cheque, Exs.P.4
and 5 are the bank endorsements, Ex.P.6 is the legal notice and
the same was served. Exs.P.7 and 8 are the postal receipts,
Ex.P.9 is the postal acknowledgment, Ex.P.10 is the reply notice.
It is important to note that Exs.P.11 to 21 are the tax invoices,
Ex.P.22 is the statement and the complaint is marked as
Ex.P.23. It is important to note that when the cheque was
presented, the same was dishonoured on the ground of
insufficient funds. It is important to note that the main defence
of the accused is that the cheque was issued towards security
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and not legally recoverable debt. Accused No.2 got examined
herself as D.W.1 and also relied upon Exs.D.1 to 3. Exs.D.1 and
2 are the letters issued by the complainant with regard to the
new year scheme and Ex.D.3 is the letter issued by the accused
for closure of account and to furnish the ledger statement.
32. Having perused the material available on record, it is
not in dispute that the cheque in question belongs to accused
No.2 and the accused also not disputed the signature. The
accused also not disputed the issuance of legal notice and also
having transaction with the complainant. It is the contention of
the accused that some credit notes are not given by the
complainant and the entire statement related to accused is not
furnished. It is important to note that Exs.P.11 to 21 are the tax
invoices and the same are not disputed and those invoices are of
different dates. It is not disputed that those invoices are not
duly acknowledged by the accused. The invoices disclose that
the materials are received by the accused by affixing the
signature including the seal of the proprietary concern. It is
important to note that the complainant has produced the
account statement as per Ex.P.22, which discloses the opening
balance and closing balance. Having perused Ex.P.22, the
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accused was due in a sum Rs.15,32,208/-. The main contention
of the accused is also that the credit notes related to the accused
was not furnished. It has to be noted that on going through
Ex.P.22, each and every transaction that the accused had with
the complainant is mentioned. If really the accused is having
credit facility, ought to have produced the statement of account
maintained by them when the credit facility is availed by the
accused from the complainant and no such material is placed
before the Court. Per contra, the complainant produced Ex.P.22
and in order to counter the claim of the complainant, nothing is
placed on record. These materials are taken note of by the Trial
Court and the Appellate Court while appreciating the material
available on record. No doubt, the Revisional Court cannot re-
assess the material on record. However, the Court has to take
note of whether there is any perversity in the finding and
ignored any material available on record while considering the
material on record. The scope is also very limited.
33. The principles laid down in the judgments referred
supra relied upon by the learned counsel for the petitioners is
that P.W.1 must have the knowledge about the transaction. The
fact that he is the power of attorney is not in dispute since power
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of attorney was given in terms of Ex.P.1 and authorization was
given in terms of Ex.P.2. It is important to note that the
transaction between the complainant and the accused is based
on the documentary evidence. Exs.P.11 to 21 are the invoices
under which the materials are received by the petitioner and the
petitioner not disputes the said fact. The only contention is that
credit notes were not given. When the invoices Exs.P.11 to 21
are produced and apart from that, the account maintained by
the complainant is placed before the Court in terms of Ex.P.22,
the very contention of the learned counsel for the petitioners
that the witness P.W.1 is not a competent witness cannot be
accepted. P.W.1 has given the evidence based on the
documentary evidence on record. It is rightly pointed out by the
learned counsel for the respondent that specific defence was not
taken in the reply notice, which is marked as Ex.P.10 that the
cheque was given as security and only during the course of
cross-examination, the said defence was taken. This reply was
given on 02.02.2010 and in the reply notice, except stating that
on several occasions request was made to submit the credit
notes and statement of account, no such credit notes was given
and the same was taken note of by both the Courts. Ex.P.22 is
26
very clear with regard to the transaction and the same is also
supported by Exs.P.11 to 21 invoices. There is an admission on
the part of D.W.1 regarding the signature found on Ex.P.3 and
she was the sole propertrix, admitted the invoices and all the
invoices bears the seal and signature of Preeti's and Preeti's firm
was registered under the Sales Tax Rules and categorically
admitted that she does not know about the exact amount due
from the complainant towards Preeti's and also admission was
given that she can produce the copies of the debit notes
submitted to the complainant Company, but the same is not
placed on record. All these materials were taken note of by both
the Courts and appreciated the same.
34. The learned counsel for the petitioners relied upon the
judgment of the Apex Court in the case of A.C. Narayanan
(supra) and other judgments with regard to knowledge of P.W.1
is concerned and when the transaction is not disputed that there
was a credit facility and continued the same and signature was
admitted on Ex.P.3 and when the cheque was given towards the
security also, the very contention of the learned counsel that
there was no any liability and to accept the said defence, there is
no material on record. Even the principles laid down in the
27
judgments relied upon by the learned counsel for the respondent
is also very clear that if no rebuttal evidence under Section 139
of the NI Act as against the claim made by the complainant, the
question of disbelieving the case of the complainant does not
arise.
35. It is important to note that criminal petition is filed
challenging the enhancement of the fine amount. The fact that
transaction was taken place in 2009 is not in dispute and also in
terms of the account maintained by the complainant, due was
more than Rs.15 lakhs and having taken note of the said aspect,
the Revisional Court also taken note of the transaction and even
considered 9% interest as held by the Apex Court and even not
considered 9% of interest in entirety and only directed to pay a
fine of Rs.24 lakhs including the cheque amount of
Rs.15,42,008/-. The very contention of the petitioner with
regard to the cheque was issued towards security and not legally
recoverable debt also cannot be accepted in view of the
judgment of the Apex Court in the case of Sripati Singh (supra)
relied upon by the learned counsel for the respondent, wherein
in paragraph No.17 it is held that a cheque issued as security
28
pursuant to a financial transaction cannot be considered as a
worthless piece of paper under every circumstance. 'Security' in
its true sense is the state of being safe and the security given for
a loan is something given as a pledge of payment. If in a
transaction, a loan is advanced and the borrower agrees to repay
the amount in a specified timeframe and issues a cheque as
security to secure such repayment; if the loan amount is not
repaid in any other form before the due date or if there is no
other understanding or agreement between the parties to defer
the payment of amount, the cheque which is issued as security
would mature for presentation and the drawee of the cheque
would be entitled to present the same. On such presentation, if
the same is dishonoured, the consequences contemplated under
Section 138 and the other provisions of N.I. Act would flow.
36. The judgment of the Apex Court in the case of Bir
Singh (supra) is also very clear that presumption is rebuttable
and onus lies on the drawer to rebut it by adducing cogent
evidence to the contrary and in the case on hand, mere defence
was taken that there is no liability. Hence, the very contention
of the learned counsel for the petitioners that witness P.W.1 is
29
not competent and ought not to have convicted cannot be
accepted. It is also well settled that High Court has got suo-
moto powers of enhancement under revision jurisdiction, of
course after giving an opportunity of hearing to the accused.
The Revisional Court also having taken note of the material
available on record and transaction was taken place in 2009 and
liability is also of 2009, while disposing of the revision petition
taken note of the said fact into consideration and directed to pay
the fine of Rs.24 lakhs as against the order of the Trial Court,
wherein only cheque amount was ordered to be paid and while
exercising the revisional powers taken note of the judgment of
the Apex Court. When such being the case, I do not find any
error on the part of the Trial Court and the Revisional Court in
appreciating the material available on record. Hence, no
grounds are made out to exercise the revisional jurisdiction to
come to other conclusion having considered the grounds urged
in the revision petition as well as the principles laid down in the
judgments referred supra. Hence, I answer the point in the
negative.
30
Point No.(ii):
37. In view of the discussions made above, I pass the
following:
ORDER
The criminal revision petition and criminal
petition are dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
MD
