Dismissed

Sanjay. H. v. Vs M/S. Sambharama Chits Pvt. Ltd.

Karnataka HC29 Oct 2022CRL.RP/804/2018

Case brief

AI extract

What is this about?

This criminal revision petition challenged a conviction for cheque dishonour arising from a chit fund default. The High Court dismissed the petition, holding that the subordinate courts' findings were justified as the petitioner failed to prove clearance of the loan or provide a no-objection certificate.

What the court decided

AI extract

Sanjay. H. v. Vs M/S. Sambharama Chits Pvt. Ltd. — Company and Corporate | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF OCTOBER, 2022

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BEFORE:

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THE HON’BLE MR. JUSTICE S. RACHAIAH

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CRIMINAL REVISION PETITION No.804/2018

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BETWEEN:

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SANJAY H.V. S/O VENKATASWAMY H.V. AGED ABOUT 42 YEARS R/AT NO.81, 7^TH MAIN 3^RD CROSS, 2^ND PHASE KSRTC LAYOUT, J.P. NAGAR BENGALURU – 560 078.

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... PETITIONER

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(BY SRI B.N. SHETTY, ADVOCATE)

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AND:

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M/S. SAMBHARAMA CHITS PVT. LTD., NO.324, D.SUBBAIAH ROAD CHAMARAJA MOHALLA MYSURU – 570 024 REP. BY ITS MANAGING DIRECTOR SHRI S. MURALIDHARA AGED ABOUT 65 YEARS.

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…RESPONDENT

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(BY SRI ABHINAV R., ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO A.SET ASIDE THE JUDGMENT DATED 25.06.2018 IN CRL.A.NO.70/2018 PASSED BY THE III ADDITIONAL SESSIONS JUDGE, MYSURU AND THE CONVICTION ORDER DATED 15.03.2018 PASSED BY THE COURT OF IV-JMFC, MYSURU IN C.C.NO.902/2015. B.TO DISCHARGE THE PEITIONER ACCSED FROM THE COPLAINT FILED BY THE RESPONDENT IN C.C.NO.902/2015 ON THE FILE OF THE IV-JMFC, MYSURU.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD THROUGH PHYSICAL HEARING / VIDEO CONFERENCING HEARING AND RESERVED ON 23.09.2022 AT THE PRINCIPAL BENCH AT BENGALURU, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, BEFORE DHARWAD BENCH, THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT PASSED THE FOLLOWING:

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O R D E R

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This revision petition is filed by the petitioner being aggrieved by the judgment of conviction dated 15. 03. 2018 in C.C.No.902/2015 on the file of Judicial Magistrate Of First Class (IV Court), at Mysuru (for brevity, hereinafter referred to as ‘Trial Court’) and judgment and order of confirmation dated 25.06.2018 in Crl.A.No.70/2018 on the file of the III Addl. Sessions Judge, Mysuru (for brevity, hereinafter referred to as ‘Appellate Court’).

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The Appellant is the accused and the respondent is the Complainant in the Trial Court. For the sake of convenience, the rank of the parties henceforth will be considered as per their rankings in the Trial Court.

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3. Briefly stated facts are that:

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The petitioner was subscriber of chit group of the respondent-company namely the M/s. Sambhrama Chits Pvt. Ltd. He was a member of two groups namely Sangama-1 and Sneha. In Sangama-1, he has subscribed 5 chits and in Sneha he subscribed 2 chits. The accused being a successful bidder of the chits and availed the bid amount/ loan from the respondent-company. According to the respondent – Complainant, the accused became defaulter and as on 29.05.2008, the accused was in due a sum of Rs.13,60,000/- to the Complainant Chit company. On demand being made by the complainant, the accused had issued a Cheque bearing No.643655 dated 29.05.2008 for a sum of Rs.13,60,000/- drawn on State Bank of India for the liability. When the said Cheque was presented for encashment, the respondent company received a shara as ‘funds

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insufficient’ vide its endorsement dated 05.06.2008. The respondent-company got issued a legal notice on 13.06.2008. Though the petitioner-accused received the notice, neither replied nor repaid the amount. Hence, the respondent-company filed a complaint before the Court seeking suitable action to be taken against the petitioner-accused.

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The Trial Court after considering the oral and documentary evidence on record, convicted the petitioner-accused and sentenced him to pay a sum of Rs.20,00,000/- and in default, to undergo simple imprisonment for a period of six months. Being aggrieved by the same, the petitioner had preferred an appeal before the Sessions Court at Mysuru. The Sessions Court confirmed the judgment of conviction and order of sentence passed by the Trial Court.

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Heard Sri B.N. Shetty, learned counsel for petitioner and Sri Abhinav R., learned counsel for respondent.

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Sri B.N. Shetty, leaned counsel for petitioner submits that the findings recorded by the both the Courts with regard to legally enforceable debt or liability is erroneous, illegal and it is required to be set aside.

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It is further submitted by the learned counsel for the petitioner/ accused that, at the time of availing the loan from the chit company being a successful bidder, the petitioner/ accused had executed sale agreement of his property and also issued a signed blank cheque as security. It is further submission of the learned counsel for the accused is that, even though, the petitioner/ accused has cleared the loan and obtained Ex.D22 which is cancellation of sale agreement, the chit company did not return the

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cheque and said cheque has been misused by the company and claimed the amount as legally enforceable debt which is illegal and untenable.

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It is further submitted that, the Complainant has failed to prove the debt and the Trial Court and Appellant Court have failed to consider the document which is marked as Ex.D21. It is the document which was given by complainant company, which indicates the due as shown in it as final settlement. It is further submitted that, had this document could have been considered by the Trial Court properly, conviction would not have been passed. Therefore, the learned Counsel for the accused prays to allow the petition.

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Per contra , learned counsel for respondent-

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company justifying the concurrent findings of both the subordinate Courts submits that, the accused has admitted that he was the subscriber of the chits in the

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respondent company and also admitted the issuance of the cheque and its signature. It is well settled that once issuance of cheque and its signature has been admitted, the presumption raises that, the said cheque has been issued by the drawer for the clearance of debt or other liability.

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It is further submitted by the complainant-respondent that, though the said presumption is rebuttable, mere denial of liability is not sufficient to rebut the said presumption. The accused has to rebut the presumption either by analyzing the evidence and documents produced by the complainant or by leading evidence and relevant documents adduced by him. It is further submitted that since the petitioner has not produced any documents regarding clearance of the loan to the respondent-company the sub – ordinate Courts have appreciated the evidence properly and concluded that

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the complainant has proved the case. Therefore, the finding recorded by the sub – ordinate Courts requires no interference.

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It is further submitted by the learned counsel for respondent that, though the petitioner/ accused denied the liability by producing Ex.D-22 which is cancellation of sale agreement and Ex.D21 which the receipt of the Company, it is altogether different and the Sub – ordinate Courts have rightly appreciated the documents and negatived the contention of the accused. Therefore, the findings of facts are not disturbed by the revisional Court.

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My anxious and thoughtful consideration to the submissions of the learned counsel for the parties and on perusal of the documents on record, the points which arise for my consideration are,

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1) Whether the impugned judgments of the Trial Court and the Sessions Court suffer from any perversity, illegality and

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impropriety warranting any interference by this Court?

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2) Whether the petitioner has made out a ground to interfere with the concurrent findings of both the Trial Court and Sessions Court?

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Before adverting into the other facts, it is relevant to refer the law on the revisional Jurisdiction of the High Court. The High Court in its revisional jurisdiction cannot appraise the evidence. The object of conferring the power of revision in the High Court is to confer upon superior criminal of kind of paternal or supervisory jurisdiction in order to correct the miscarriage of justice arising from misconception of law, irregularity of the procedure or neglect of proper precaution or apparent harshness of treatment, which has resulted on the one hand miscarriage of

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justice and on the other hand caused underserved hardship to the individuals. The discretionary power of the High Court must be exercised sparingly with caution.

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Point No.1: It is an admitted fact that,

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the petitioner/ accused is the member of chit group Sangama-1 vide ticket No.4, 5, 14, 15 and 36 dated 08.10.2005 for the value of Rs.4,00,000/- each. It is also admitted fact that the petitioner has repaid the installment till 24.09.2007. On careful perusal of the statement of account pertain to all the chit groups produced by the respondent-company which are marked as Ex.P11-the statement of account pertains to ticket No.14 and Ex.P-16 pertains to ticket No.4, Ex.P-21 pertains to ticket No.05, Ex.P-26 pertains to ticket No.15 and Ex.P-31 pertains to ticket No.36.

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disclose that, the petitioner/ accused was due a sum of Rs.13,60,000/-. However, the accused denied the liability and produced documents which are marked as Ex.D21 and Ex.D22.

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Let me analyze the said documents and findings of both the courts with regard to it. The petitioner/ accused though produced Ex.D21 and contended that he was due only a sum of Rs.2,29,864/- and paid the entire amount, but, he has failed to produce no objection certificate or clearance certificate to that effect. On careful perusal of Ex.D21 it appears that it is a receipt for having paid the installments. But, no where it is mentioned that, the accused has cleared the loan as full and final settlement. In absence of cogent evidence regarding clearance of the loan amount to the respondentcompany, the said plea cannot be accepted.

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As regards, Ex.D22 is concerned it is the

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contention of the petitioner that the Ex.D22 has been obtained after clearance of the loan amount. It is his contention that he has executed sale agreement of the property mentioned in Ex.D22 at the time of availing the loan from the respondent company. If it is executed as a collateral security as is stated by the petitioner, he should have produced the copy of the sale agreement to the Trial Court to substantiate his contention. Except producing Ex.D22 no other documents produced by the petitioner to show that, there was a loan agreement executed in favour of chit company. Even assuming that the said document is obtained after clearance of the loan the entire recital of the said document discloses that, it is not executed on behalf of the company. Therefore, the said contention cannot be accepted. The concurrent findings of the sub – ordinate Courts are justifiable

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and there is no illegality or perversity in the said findings. Therefore interference with the said findings are unwarranted.

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With the above observation, the points which arose for my consideration are answered as point No.1 is answered in the “negative” holding that the concurrent findings of both the Courts contain no illegality, perversity and impropriety. Point No.2 is answered in the “negative” holding that the petitioner has not made out a ground to interfere with the concurrent findings of the facts and law.

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Therefore, the criminal revision petition deserves to be dismissed.

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Sd/-

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JUDGE

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Naa

Sanjay. H. v. Vs M/S. Sambharama Chits Pvt. Ltd.

Case brief

What is this about?

What the court decided

Sanjay. H. v. Vs M/S. Sambharama Chits Pvt. Ltd.

Case brief

What is this about?

What the court decided

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