High Court of Karnataka disposed of a criminal revision under Section 397 Cr.P.C. challenging conviction under Section 138 NI Act. Bench held no perversity in High Court above's evidence reappreciation and dismissed petition.
Criminal revision petition dismissed; appellate court judgment confiscated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2022 BEFORE
THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CRIMINAL REVISION PETITION NO.1206 OF 2015
BETWEEN:
…Petitioners
(By Sri Narayanaswamy V.K., Advocate)
AND:
Smt. Roopa V. Hubli, W/o Vijay S. Hubli, Proprietrix of AVR Enertech, Aged about 46 years, R/at No.15, 3rd Floor, 5th Main, 7th Cross, Ganganagar, Bengaluru-560032.
…Respondent (By Sri Ravi B. Naik, Senior Counsel for Sri K.B.Monesh Kumar, Advocate)
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This Criminal Revision Petition is filed under Section 397(2) of Cr.P.C., praying to set aside the judgment and order dated 12.08.2015 passed in Crl.A.No.843/2014 by the court of the LVIII Additional City Civil and Session Judge, (CCH-59), Bengaluru City and confirm the judgment and order dated 28.07.2014 in C.C.No.20462/2010 passed by the learned XII Addl.C.M.M., Bengaluru City.
This Criminal Revision Petition coming on for hearing through video conferencing this day, the Court made the following:
ORDER
This revision petition is filed under Section
397 of Cr.P.C., by the accused in C.C.No.20462/2010 on the file of the XII Additional Chief Metropolitan Magistrate,
Bengaluru.
The respondent initiated proceeding against the petitioners for the offence punishable under Section 138 of the Negotiable Instruments Act (‘N.I.Act’ for short), by filing a complaint under Section 200 of Cr.P.C. The respondent is the
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proprietrix of a business concern, namely, A.V.R. Enertech, which is involved in the business of manufacturing electronic items. The first petitioner is the proprietary concern and the second petitioner is the proprietor. On behalf of the first petitioner, the second petitioner used to purchase electronic goods from the respondent. The second petitioner also owns another business concern, namely, Power Track
and he used to purchase goods from the respondent on behalf of Power Track. On 26.06.2008 and 28.06.2008, the second petitioner placed orders with the respondent on behalf of Power Track. Accordingly, the respondent supplied the electronic items in several batches on credit basis to the petitioners and thus the petitioners were due to the respondent in a sum of Rs.12,21,680/-, excluding VAT. Out of 12.21.680/-, certain payments had been made and there remained a balance of Rs.8,25,110/-. It is
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further case of the respondent that the petitioners
issued three cheques on 25.11.2008 for Rs.1,64,288/being part payment of
Rs.8,25,110/-. Those cheques were dishonored for insufficiency of funds in the account of the petitioners. Thereafter the petitioners issued a cheque bearing No.625644 dated 26.08.2009 for Rs.2,72,082/drawn on Canara Bank, Vasanthanagar Branch and another cheque bearing No.332862 dated 28.11.2009 for Rs.4,88,362/drawn on State Bank of India, Peenya Industrial Area Branch, Bengaluru to the respondent towards part payment of outstanding amount of Rs.8,25,110/-. When these two cheques were presented for encashment, they were returned with an endorsement ‘Exceeds arrangement’. Thereafter the respondent issued a demand notice to the petitioners by registered post with acknowledgment due and certificate of posting. Though the petitioners received the notice, they
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did not make payment and therefore the respondent approached the Court of Magistrate with a complaint under Section 200 of Cr.P.C.
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second petitioner to pay fine of Rs.12,00,000/- out
of which Rs.11,75,000/- is to be paid to the respondent towards compensation. Aggrieved by the judgment of the appellate Court, the petitioners are before this Court in revision.
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clear admission of PW1 that the hand loan was cleared. The Magistrate has noticed this admission of PW1 and also other admissions that actually the cheque was not issued to the respondent and rather it was issued to the husband of the respondent. Noticing these glaring discrepancies in the evidence of PW1, the Magistrate dismissed the complaint and acquitted the petitioners. But the appellate Court reversed the findings of the Magistrate without appreciating the evidence in proper perspective. The findings of the appellate Court are not sustainable, because, the clear admissions given by PW1 have not been considered by the appellate Court, rather it has substituted its own reasons for convicting the petitioners. It is submitted further that actually the transaction that the respondent put forward in her complaint is not supported by any document. Ex.P.9 to P18 does not in any way establish the transaction between the respondent
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and the petitioners. The cheques in question were issued prior to the invoices that the respondent has produced, wrongly the first appellate Court
has come to conclusion that these invoices indicate supply of electronic items to the petitioners by the respondent and in that connection the cheques were issued. These findings are not correct. The petitioners could not have been convicted for the offence under Section 138 of N.I.Act and hence the judgment of the appellate Court is to be set-aside and that the judgment of the Magistrate is to be restored.
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admissions, but he has not considered the subsequent answers given by PW1. If the Magistrate had appreciated the evidence of PW1 as a whole, the petitioners ought to have been convicted by the learned Magistrate. The Magistrate has come to conclusion that Ex.P.9 to P18 do not establish the transaction between the respondent and the petitioners in relation to supply of electronic items. This is a wrong finding, which has been set-right by the appellate Court after re-appreciating the evidence. If the judgment of the appellate Court is read, it becomes amply clear that it has re-appreciated the evidence in a proper perspective. The appellate Court has pointed out the errors committed by the Magistrate for acquitting the petitioners. In fact, DW1 has very well admitted in his cross examination that he himself filled the cheques in question. The defence theory has no basis at all. All these aspects have been noticed by the
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appellate Court for convicting the petitioners. In the revision petition, there is no scope for interfering with the judgment of the appellate Court, if it is found the appellate Court has reappreciated the evidence. Hence, he argued for dismissing the revision petition.
revision petition against the judgment of the appellate Court, there is no scope for reappreciation of evidence. Even if there is any error in reappreciation of evidence by the appellate Court it shall not be interfered with, unless perversity in appreciation of evidence is made out.
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The case of the respondent is that the petitioners issued cheques in question for repaying part of liability in relation to purchase of electronic items from the respondent. The defence is that the second petitioner issued cheques to the husband of the respondent as the former had taken hand loan from the latter. It is held by the trial Court that the cheques as per Ex.P.1 and P.2 were not issued subsequent to purchase order dated 19.02.2009 and therefore Ex.P.1 and 2 could not have been issued in relation to transaction depicted in Ex.P.9 to P.18. It has held that PW1 has given admission that accused issued cheques to her husband in connection with hand loan and that Ex.P1 and P2 indicate that they were not written by the accused. The contents of the cheques very well indicate that probably the cheques were not written by the second petitioner and that they appear to have been written in different inks. The trial Court has also relied upon
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another admission of PW1 that accused No.2 i.e., the petitioner No.2 did not have business transaction with her. Relying upon these answers, the trial Court is of the opinion that blank cheques issued by petitioner No.2 in connection with hand loan might have been misused. These are the main reasons assigned by the trial Court for acquitting the petitioners.
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Considering P.14 to P18, the appellate Court has come to conclusion that the petitioners acknowledged the receipt of goods. Therefore, placing reliance on Ex.P.9 to P.18, it is the conclusion of the appellate Court that the petitioners were in due in a certain sum of money for having purchased the electronic items from the respondent.
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cheques were dishonored for want of sufficient funds in the account of the petitioners, an offence under Section 138 of N.I.Act had been committed. It cannot be said that the appellate Court has erred in coming to such conclusion.
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answer of PW1 that accused No.2 is not having any
business transaction with her. This answer has been given much importance, without understanding the meaning in it. PW1 intended to say by giving this answer that accused No.2 did not have any business transaction with the respondent, i.e., the complainant personally, because her case is that accused No.2 purchased goods from her proprietary concern. The Magistrate has assigned another reason that the cheques in question were filled up by the respondent/complainant. It may be noticed here the answer given by DW1 i.e., the second petitioner has been ignored by the Magistrate in the examination in chief itself. DW1 has clearly stated that he filled the cheqeus Ex.P.1 and P.2. Therefore a clear conclusion can be drawn that the trial Court has not appreciated the evidence properly to acquit the petitioners. The appellate Court, having noticed all the infirmities in the
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judgment of the Magistrate, appears to have come to right conclusion to reverse the judgment of the Magistrate. Therefore I do not find any good ground to interfere with the well reasoned judgment of the appellate Court. Even if the sentence imposed by the appellate Court is seen, the petitioners have been adequately sentenced. There is no need to interfere in the sentence part also. In the result, revision petition fails and it is
dismissed .
Sd/JUDGE
Kmv/-
3 issues framed by the court
Whether the High Court can interfere with the appellate court's reappreciation of evidence in a criminal revision petition.
Existence of perversity in the trial court dismissing a Section 138 NI Act complaint despite inducement of documentary evidence.
Whether the appellant successfully proved that cheques were issued for a historical document loan rather than goods supply.
2 provisions across 2 enactments
Sri P.A. Khan (Rep. Power Track)
Power Track
Smt. Roopa V. Hubli
SREENIVAS HARISH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
