Dismissed

M/S Biorad Medisys Pvt. Ltd. v. Progressive Health Care

Karnataka HC13 Jan 2022CRL.RP/1408/2015

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision petition filed by a complainant against a Sessions Court order that modified a conviction under the Negotiable Instruments Act. The High Court held the modified sentence was not perverse given the nature of the transaction and facts.

What did the court decide?

Revision petition dismissed; Judgment dated 13.10.2015 in Crl.A.No.241/2015 confirmed.

M/S Biorad Medisys Pvt. Ltd. Vs Progressive Health Care — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JANUARY 2022

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BEFORE

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THE HON’BLE MR. JUSTICE P.N.DESAI

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CRIMINAL REVISION PETITION NO.1408/2015

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BETWEEN :

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M/S. BIORAD MEDISYS PVT. LTD., NO.660, 1^ST AND 2^ND FLOOR ESHWARI INDUSTRIAL ESTATE HULIMAVU, BANNERGHATTA ROAD BENGALURU - 76 REPRESENTED BY ITS GENERAL MANAGER SRI. P.P.BABU

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...PETITIONER

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(BY SRI.N.M.DAMODAR, ADVOCATE) AND :

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PROGRESSIVE HEALTH CARE NO.379/10, RAGHAVENDRA LAYOUT HULIMAVU MAIN ROAD BENGALURU - 560 076 REP. BY ITS PROPRIETOR MR.JOHN.

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MR.JOHN PROPRIETOR PROGRESSIVE HEALTH CARE NO.379/10, RAGHAVENDRA LAYOUT HULIMAVU MAIN ROAD BENGALURU - 560076. ...RESPONDENTS

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(BY SRI. R.CHANDRASHEKAR, ADVOCATE)

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THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C PRAYING TO MODIFY THE JUDGMENT DATED 13.10.2015 IN CRL.A.NO.241/2015, PASSED BY THE LEARNED LIX ADDL. CITY CIVIL AND S.J., BENGALURU CITY AND CONSEQUENTLY CONFIRM THE JUDGMENT AND ORDER DATED 15.11.2014 IN C.C.NO.4955/2013 PASSED BY THE LEARNED MAGISTRATE XXVII ADDL.C.M.M. BENGALURU.

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THIS CRL.R.P. COMING ON FOR FINAL HEARING THROUGH VIDEO CONFERENCE, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard learned counsel for the petitioner.

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This revision petition arises out of the Judgment passed by the learned LIX Addl. City Civil and Sessions Judge, Bengaluru City in Criminal Appeal No.241/2015 dated 13.10.2015, wherein the learned Sessions Judge confirmed the findings of the trial Court convicting the accused for the offences punishable under Section 138 of Negotiable Instrument Act, 1881 (hereinafter referred to as 'NI Act') but modified the sentence by setting aside the sentence of imprisonment and also modified the fine amount to the tune of 6,00,000/(Rupees Six lakhs only) instead of 11,46,188/- (Rupees Eleven lakhs forty six thousand one hundred eighty eight only) imposed by trial Court i.e., by the XXVII Addl. Chief Metropolitan Magistrate, Bengaluru city in C.C.No.4955/2013, dated 15.11.2014.

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Revision petitioner was the complainant and

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respondent Nos.1 & 2 were accused Nos.1 and 2 before the trial Court. The parties will be referred to as per their respective ranks before the trial Court, for sake of convenience.

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Brief case of the complaint is that the complainant supplied medical surgical devices to the accused-Progressive Health Care, Bengaluru and in this regard, the accused through its proprietor, had issued cheque bearing Nos.020830, 020831 and 020832 for 1,50,000/- (Rupees One lakh fifty thousand only), 1,50,000/- (Rupees One lakh fifty thousand only) and `2,73,094 (Rupees Two lakhs seventy three thousand ninety four only) respectively drawn on Federal Bank Ltd. All the cheques were dated 13.12.2022. Accordingly, the complainant presented the said cheques to the Bank, but they were dishonored and returned with an endorsement 'funds insufficient'. Immediately the complainant informed

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the same to the accused and demanded for payment. The accused though agreed to pay the amount, but postponed the same and started giving evasive replies. Hence, the complainant issued legal notice dated 28.01.2013 calling upon the accused to pay the amount. Even after issuing the legal notice, the accused failed to pay the cheque amount. Therefore, the complainant filed a private complaint against the accused alleging that the accused has committed offence punishable under Section 138 of NI Act, before the Magistrate Court.

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The accused appeared before the Court after issuance of summons. Thereafter, the complainant got examined one Sri.P.P.Babu, General Manager as P.W.-1 and got marked 15 documents Ex.P-1 to P-15. The accused Mr.John, Proprietor of Progressive Health Care, got examined himself as D.W.-1, but has not produced any documents on his behalf.

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The learned trial Court Magistrate, after hearing the arguments, convicted the accused for the

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offences punishable under Section 138 of NI Act and passed an order of sentence that the accused shall undergo simple imprisonment for one year and to pay fine of 11,46,188/- (Rupees Eleven lakhs forty six thousand one hundred eighty eight only) out of that 11,00,000/(Rupees Eleven lakhs only) is ordered to be paid to the complainant as compensation and remaining amount of `46,188/- (Rupees Forty six thousand one hundred eighty eight only) is ordered to be remitted to the State.

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Aggrieved by the same, the accused preferred criminal appeal before the learned Sessions Court. The accused took-up a contention that defective goods were supplied by the complainant and in fact, the complainant is liable to pay more than 2 lakhs to the accused. Therefore, they prayed to set aside the said conviction and order of sentence. After hearing the arguments, learned Sessions Judge confirmed the findings of the trial court regarding conviction for the offence punishable under Section 138 of NI Act by the accused but modified the sentence as stated

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above. Aggrieved by the same, the complainant preferred this revision petition.

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Heard Sri.N.M.Damodar, learned counsel for

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the petitioner. Respondent side no representation.

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Learned counsel for the petitioner contends that the order of modification of the sentence passed by the learned Sessions Judge is contrary to law. Learned sessions Judge ought to have awarded simple interest on the amount as compensation to the complainant. The order of modification is liable to be set aside. Learned Sessions Judge has not taken into consideration the time and amount spent for the litigation and modified the sentence which needs to be set aside. With these main contentions, learned counsel for the petitioner prayed to set aside the modification order passed by the Sessions Judge and restore and confirm the Judgment and order dated 15.11.2014 passed by the XXVII Addl. Chief Metropolitan Magistrate, Bengaluru city in C.C.No.4955/2013 the learned counsel relied upon the

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decision of the Apex Court reported in AIR 2015 in case of Mainuddin Abdul Sattar Shaikh vs Vijay D Savli in

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support of his case and prays to modify the order.

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I have perused the revision petition contents and also the Judgment of Sessions Court and trial Court. I have perused the records of the case and also the decision relied upon by the learned counsel for the petitioner.

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From the above materials, the point that arise for my consideration is:

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"Whether the impugned order passed by both courts are correct, legal and in conformity with the settled principle regarding appreciation of evidence in cases under Section 138 of the Negotiable Instruments Act, 1881, which are popularly called as cheque bounce cases?"

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The respondents/accused have not challenged the confirmation of findings of the appellate Court regarding conviction for the offence punishable under

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Section 138 of NI Act. It has attained finality. Though the accused has not challenged the Judgment of the trial Court, but contends before Sessions Court that they are not liable to pay the said amount, the goods were defective and in fact, it is the complainant who has to pay 2,00,000/- (Rupees Two Lakhs only) to them. But, the said contention was not accepted. The appellate Court found that Ex-P-7 indicates that the accused used to purchase goods from the complainant regularly and it is found that the cheques were issued in respect of the goods purchased. Though the accused have taken the contention regarding the defective goods, but they have not proved the same. So, the learned Sessions Judge has not accepted that contention. Therefore, the learned Sessions Judge came to the conclusion that accused were liable to pay 5,95,000/- (Rupees Five lakhs ninety five thousand only) to the complainant as per cheques in Ex.P-1, P-3 and P-5. The learned Sessions Judge found that the sentence of imprisonment and imposing fine of double amount will be too harsh and it appears that in view of the contention

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taken by the accused, learned Sessions Judge has modified the sentence.

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13. I have perused the decision of Mainuddin

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Abdul Sattar Shaikh vs Vijay D Savli stated supra, relied by the learned counsel for the revision petitioner. In that case, the appellant had booked a flat at Khargar Project proposed to be developed by M/s. Salvi Infrastructure Pvt. Ltd., and he has paid through accused the amount but that project did not materialise and only after much persuasion, the cheque given in that circumstance and considering the earlier decision of R.Vijayan Vs. Baby, reported in AIR 2005, imposed the said sentence and it is held that the directions to pay the compensation by way of restitution in regard to the loss of cheque should be practical and realistic which would mean not only the payment of the cheque amount but interest thereon at a reasonable rate.

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So, this proposition cannot be disputed at all. The Court has to keep in mind the facts of each and impose the sentence.

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In the present case, the records reveals that the accused were regular customers of the complainant and they used to supply medical surgical devices. The total cheque amount was 5,73,094/- (Rupees Five lakhs seventy three thousand ninety four only). It is also evident from the evidence that, earlier also accused had transaction and purchased goods to the tune of Rs.59 to 60 lakhs, which is evident from the cross-examination evidence. The records indicate that the respondents have not submitted any documents to show that the goods are defective. However, learned Sessions Judge keeping in mind the nature of transaction has imposed the said sentence by modifying the amount and has awarded fine amount of 6,00,000/- (Rupees Six lakhs only) in default, directed the accused-proprietor to undergo simple imprisonment for a period of six months. Out of the above

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said fine amount of 5,95,000/- (Rupees Five lakhs Ninety five thousand only) amount to be paid as compensation to the complainant and the remaining 5,000/- (Rupees Five thousand only) to the Government as fine.

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Looking into the nature of transaction and the value of the goods and the cheque amount, in my considered view, the said modification order passed by the learned Sessions Judge does not appear to be perverse or illegal. On the other hand, whatever goods purchased by the accused, goods supplied value has to be paid and some extra amount has also to be paid. The same is awarded as compensation in the order passed by the Session Court i.e., in the year 2015 itself. Therefore, in view of the peculiar facts and circumstances and the nature of transactions and the fine amount, I do not find any perversity in the order passed by the learned Sessions Judge.

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