Dismissed

Amey S/O Anant Kadam v. Shri Vijay Vithal Patil

Karnataka HC14 Sept 2023CRL.RP/100330/2023

Case brief

AI extract

What is this about?

High Court of Karnataka dismissed a criminal revision petition challenging a conviction and sentence under Section 138 of NI Act. The Court held the trial Court did not deny reasonable defense opportunity given the accused's consistent absences and found the delay in filing appeal unjustified.

What did the court decide?

Petition dismissed; impugned judgments of trial Court and Sessions Court confirmed.

Amey S/O Anant Kadam Vs Shri Vijay Vithal Patil — Cheque Dishonour | Karnataka HC (2023)

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CRL.RP NO.100330/2023

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON’BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL REVISION PETITION No.100330/2023

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BETWEEN:

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AMEY S/O ANANT KADAM, AGE: 45 YEARS, OCC: BUSINESS, R/O: H.NO.262, MUJAWAR GALLI, BELAGAVI DIST- 599901.

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...PETITIONER

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(BY SRI. J.BASAVARAJ, ADVOCATE)

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AND:

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CHANDRASHEKAR LAXMAN KATTIMANI

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Digitally signed byCHANDRASHEKAR LAXMAN KATTIMANI Date: 2023.09.15 11:11:02 +0530

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SHRI VIJAY VITHAL PATIL, AGE: 44 YEARS, OCC: BUSINESS, R/O: H.NO.576, VITHAL RENU NIVAS, KURBAR GALLI, ANGOL, BELAGAVI DIST-590006.

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…RESPONDENT

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(BY SRI. SOURABH HEGDE, ADVOCATE)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS ON THE FILE OF THE VIII ADDL.SESSIONS JUDGE, BELAGAVI IN CRL.A.NO.172/2023 AND ON THE FILE OF THE VI JMFC, BELAGAVI IN CC NO.1787/2017, PERUSE THE SAME AND SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE VIII ADDL. SESSIONS JUDGE, BELAGAVI IN CRL.A.NO.172/2023 DATED 01.08.2023 AND THE JUDGMENT OF CONVICTION AND SENTENCE PASSED BY THE VI JMFC, BELAGAVI IN CC NO.1787/2017 DATED 28.03.2018 FOR THE OFFENCE PUNISHABLE U/S 138 OF NI ACT.

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CRL.RP NO.100330/2023

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 08.09.2023, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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In this petition filed under Section 397 of Code of

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Criminal Procedure (‘Cr.P.C.’, for short), petitioner who is accused before the trial Court has challenged the judgment and order dated 28.3.2018, of the trial Court in C.C.No.1787/2017, whereby he is convicted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (‘NI Act’, for short) and sentenced to pay fine of Rs.3,000/-, in default to undergo simple imprisonment for 3 months and he is also directed to pay compensation in a sum of Rs.4,20,000/-, in default to undergo simple imprisonment for 2 years. The petitioner has also challenged the impugned judgment and orders of the Sessions Court in Crl.A.No.172/2023 filed by him, which came to be dismissed on 01.08.2023 and thereby confirming the judgment and order of trial Court.

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CRL.RP NO.100330/2023

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For the sake of convenience, the parties are referred to by their ranks before the trial Court.

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Complainant filed a complaint under Section 200 Cr.P.C. against the accused for the offence punishable under Section 138 of NI Act, alleging that the accused is the General Power of Attorney holder of one Praveen Mallappa Kangralkar-Owner of the land in R.S.No.174/2 measuring 21 guntas of Kangrali KH, Belagavi. Accused in his capacity as the GPA holder of the owner, entered into a sale agreement to sell the said land for Rs.40,00,000/- to the complainant. Though he received the entire sale consideration of Rs.40,00,000/-, accused failed to execute a registered sale deed. He requested the complainant to cancel the sale agreement and towards return of advance money, he has issued two cheques for Rs.20,00,000/each dated 07.10.2017. When the complainant presented the said cheques for realisation, they were returned with endorsement "drawers signature, incomplete/illegible/differs/ required”. Complainant got issued a legal notice, requesting

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CRL.RP NO.100330/2023

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the accused to pay the amount due under the cheque system. Though it is duly served, accused has neither paid the amount due nor sent any reply. Without any alternative, complainant filed the complaint.

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After recording the sworn in statement of the complainant, the trial Court took cognizance.

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After due service of summons, the accused appeared before the trial Court. However, he did not choose to file application, requesting the trial Court to grant permission to cross-examine PW1.

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Hence the trial Court recorded the statement of accused under Section 313 Cr.P.C. and accused choose to lead defence evidence. After marking the documents on behalf of the complainant, opportunity was given to the accused to cross-examine PW1 and on his failure, the trial Court posted the case for judgment and the impugned judgment and order came to be passed on 28.3.2018.

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CRL.RP NO.100330/2023

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Accused challenged the said judgment and order in Crl.A.No.172/2023. Along with the appeal, the accused filed application under Section 5 of the Limitation Act to condone the delay of 5 years, contending that though the impugned judgment and order was passed on 28.03.2018, he came to know about it only on 23.06.2023, when he was arrested. After hearing both parties, the Sessions Court rejected the application filed for condonation of delay and consequently also dismissed the appeal as barred by limitation.

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The accused has filed this petition under Section 397 Cr.P.C., contending that the impugned judgment of the trial Court as well as the Appellate Court/Sessions Court, is opposed to law, facts and probabilities of the case. They are not sustainable in the eyes of law. They are contrary to the evidence placed on record. The trial Court has passed an exparty order as the accused did not challenge and contest the matter, since the complainant has stated that it would be

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CRL.RP NO.100330/2023

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settled out of Court. In fact accused has made certain payments to the complainant.

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Further, the accused has allotted a plot in lieu of the amount due under the cheque through registered sale deed dated 16.10.2018. However, the complainant has proceeded against the accused behind his back and secured a conviction by suppressing true facts. The trial Court has failed to consider that there was no transaction between the complainant and accused and as such, there was no legally recoverable debt or liability. The accused was not given reasonable opportunity to prove his defence. The complainant has failed to prove his financial capacity. Therefore, the impugned judgment and orders are liable to be set aside. It is perverse, illegal and one-sided.

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So far as the impugned judgment and orders of

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the Appellate Court is concerned, it is not passed on merits and thereby the Appellate Court has erred in dismissing the appeal on limitation. The trial Court as well as the Sessions Court have failed to appreciate the fact that the complainant

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has not proved his case. In the absence of cogent and corroborative evidence, the complaint is liable to be dismissed and prays to allow the petition and set aside the impugned judgment and orders and acquitted him.

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In support of his arguments, learned counsel for

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the accused has relied upon the following decision:

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i) Govindaraju @ Kutti Vs. The State of Karnataka (Govindaraju)¹

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On the other hand, the learned counsel appearing for complainant has supported the impugned judgment and orders and sought for dismissal of the petition.

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In support of his arguments, the learned counsel

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for the complainant has relied upon the following decisions:

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i) Indian Bank Association and Others Vs. Union of India and Others (Indian Bank Association)²

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1 Crl.A.No.1459/2019

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2 (2014) 5 SCC 590

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CRL.RP NO.100330/2023

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ii) Subodh S. Salaskar Vs. Jayprakash M.Shah and Another (Subodh)³

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iii) Pallavi Traders Vs. Petro Lubes and Anr. (Pallavi)⁴

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iv) F.Liansanga & Anr. Vs. Union of India & Ors.(F.Liamsanga)⁵

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v) D.K.Chandel Vs. Wockhardt Limited and Another (D.K.Chandel)⁶

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vi) Lakhan Singh Vs.Amarjeet Singh & Anr. (Lakhan Singh)⁷

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Heard elaborate arguments of both sides and

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perused the record.

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The following points arise for consideration of this

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Court:

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i. Whether the accused proves that the trial Court has not provided him adequate opportunity to defend himself?

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3 (2008) 13 SCC 689

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4 1997 Cri. LJ 1348 (AP High Court)

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5 2022 LiveLaw (SC) 252

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6 (2020) 13 SCC 471

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7 (2022) 17 S.C.R.820

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ii. Whether the accused further proves that he was not aware of the judgment and order passed by the trial Court and came to know about it only when arrest warrant issued by the trial Court was executed against him?

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iii. Whether the accused has made out any justifiable grounds to interfere with the impugned judgment and orders of the trial Court and Sessions Court?

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iv. What order?

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16. My findings on the above points:

Point No.1-Negative

Point No.2-Negative

Point No.3-Negative

Point No.4-As per the final order for the following:

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REASONS

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17. Point Nos.1 to 3: Since these points involve

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common discussion they are considered together. Thus

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accused was prosecuted by the complainant on the

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allegations that in his capacity as the GPA holder of the owner of the land, accused entered into a sale agreement with the complainant and received sale consideration of Rs.40,00,000/-. However, when he failed to execute the sale deed and on the insistence of the complainant, accused issued 2 cheques dated 07.10.2017 for Rs.20,00,000/- each. When presented for realization, they were dishonoured and after issuing notice, he filed the complaint. The grievance of the complainant is that despite receipt of legal notice, the accused has neither sent any reply nor complied with the notice.

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At the outset it is relevant to note that despite due service of notice, accused has not chosen to send any reply and thereby spelling out his defence at the earliest available opportunity. As evident from the order sheet, he is duly served with summons. On 16.12.2017, he has engaged services of the counsel and filed exemption application. The trial Court has allowed the application and exempted his appearance for the day. It posted the case to 22.12.2017 for

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his appearance. On that day, accused remained absent and there was also no representation for him. Consequently, the trial Court issued NBW against him returnable by 10.01.2018. On that day, it is noted in the order sheet that the warrant is returned with endorsement, “accused is not in the said address” and therefore the trial Court has adjourned the case to 20.01.2018 for furnishing new address. On 20.01.2018 also accused remained absent and therefore the Court has ordered for re-issuing NBW through Superintendent of Police, Belagavi returnable by 06.02.2018. Once again, the warrant remained un-executable. Having noted the absence of accused, once again the trial Court has reissued the NBW through SP with show cause notice to the PSI of concerned police station. It appears after receiving the show cause notice, the PSI has came into action and tried to execute the warrant, as a result of which, on 17.02.2018, the accused has advanced the case, put in his appearance and secured bail.

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On the same day, the trial Court has recorded the plea of accused who has pleaded not guilty and submitted that he has got defence to make. In the light of the decision of the Hon’ble Supreme Court in Indian Bank Association, the trial Court has treated the sworn statement of the complainant as his evidence. The trial Court recorded the statement of accused under Section 313 Cr.P.C. and posted the matter for cross-examination of PW1 to 23.02.2018.

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On 23.02.2018, the complainant (PW1) has presented himself for cross-examination. However, the accused sought time and therefore, the case was adjourned to 07.03.2018. On that day, both PW1 and accused remained absent and time was sought and accordingly the case was adjourned to 12.03.2018. Though PW1 was present accused remained absent. Since there was no representation for him, the trial Court taken the cross-examination of PW1 as nil and posted the matter for arguments to 17.03.2018.

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On 17.03.2018, accused and his counsel remained absent. The trial Court heard the arguments of complainant’s

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counsel and looking to the conduct of accused in continuously remaining absent without any justifiable reasons, the trial Court posted the case for judgment to 28.03.2018. On that day, the trial Court has pronounced the judgment convicting the accused and sentencing him as detailed above.

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From 12.03.2018, after cross-examination of PW1 was taken as nil, the accused has not chosen to file any application to recall PW1 for cross-examination and/or to permit him to lead defence evidence. Even after 17.03.2018, when the case was posted for judgment, the accused has not made any endeavor to cross-examine PW1 or to lead defence evidence by filing necessary application. Therefore, looking to the conduct of the accused, whose intention appears only to drag on the matter, the trial Court is justified in pronouncing the judgment. In fact, by not sending reply, practically the accused has admitted the contention of the complainant that the cheques in question were issued towards realization of legally recoverable debt or liability. In

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the facts and circumstances, the accused has failed to prove that he was not provided with reasonable opportunity to defend himself.

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It is pertinent to note that the trial Court has pronounced the judgment on 28.03.2018. However the accused has filed the appeal after delay of 1918 days i.e., nearly after 5 years 3 months. With regard to the delay the explanation of the accused is that he was not aware of the same and he came to know about it only after he was arrested in execution of the said order. At the out set having entered into an agreement and issuing the cheques towards repayment of the amount due under the agreement, receiving legal notice and in response to the warrant issued by the trial court appearing through counsel, at any stretch of imagination, it cannot be expected that accused was not aware of the fact that he has been convicted by the trial Court. As prudent man he is excepted to know as to what happened to the said case. The dishonored cheques are for a total sum of Rs.40,00,000/- and it cannot be accepted that

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15 CRL.RP NO.100330/2023

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after their dishonored and initiation of criminal prosecution for dishonor of the same, accused would simply sit back in ignorance of the result of the said case.

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It is pertinent to note and as evident from the order sheet that after the pronouncement judgment and failure of accused to deposit the fine as well as pay the compensation, the complainant has moved the trial court for issue of warrant for securing the presence of accused to undergo default sentence for failing to comply with the said order.

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On the date of pronouncement of the judgment i.e. on 23.03.2008 on finding accused absent and also there was no representation by his counsel, the trial Court has issued NBW against him through SP or by hand returnable by 17.04.2018. On that day as warrant was not executed, the trial Court has ordered for issue of NBW through SP and show-cause notice to the concerned police returnable by 05.07.2018. Again NBW was re-issued against the accused on 09.07.2018, 28.09.2021, 10.05.2022, 20.06.2022,

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04.07.2022, 18.08.2022, 13.09.2022, 30.03.2023,

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03.05.2023.

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Ultimately the conviction warrant issued on 03.05.2023 is executed on 23.06.2023 and accused was produced before the Court. In the presence of complainant, his counsel as well as counsel for the accused, he was sent to jail to undergo sentence.

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From the perusal of order sheet it is evident that immediately after pronouncement of judgment till he was arrested persistently the complainant has taken steps and at his instance conviction warrant is issued. The very fact that warrant could not be executed for a period of 5 years goes to show that accused has successfully evaded the process of Court and managed to see that the warrant is returned the to Court unexecuted. Otherwise, the concerned police have no justification for not executing the warrant, especially when the learned counsel representing the accused submitted that he was very well available in the address given in the address.

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In the circumstance, this Court has no hesitation

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to hold that after knowing that he is convicted and conviction warrant is being issued, intentionally he has not filed appeal in time and evaded the process of the Court to buy time and thereby evaded honouring his liability or atleast undergoing imprisonment imposed by the trial Court. Therefore, there is no substance in the contention of the accused that he was not aware of the judgment and therefore, there is justification for filing the complainant after delay of 5 years 3 months.

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The accused has also taken up a contention that after he was convicted and sentenced, he entered into a settlement with complainant and in lieu of payment of compensation in a sum of Rs.40 lakhs, he has executed a sale deed in favour of complainant and therefore, he was under an impression that the matter is closed. As rightly submitted by the learned counsel for complainant, the total liability of accused under the subject cheques is Rs.40 lakhs and apart from imposing fine of Rs.3,000/- with default

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sentence, the trial Court has ordered for payment of compensation in a sum of Rs.40,20,000/- with default sentence. Such being the case, the fact that the accused has executed a sale deed dated 15.10.2018 by which he has sold a site measuring 30 x 40 feet for a sum of Rs.5 lakhs cannot be at any stretch of imagination be accepted as towards his liability arising out of the earlier transaction for a total sum of Rs.40 lakhs. Moreover, there is no reference in the sale deed that in lieu of receipt of Rs.40 lakhs due under the cheques, this sale deed being executed and that there is no actual payment of the sale consideration. This sale deed is as any other sale deed wherein the seller acknowledge the receipt of sale consideration. Even where it is accepted that accused has executed the sale deed in lieu of his liability to pay Rs.40 lakhs due under the cheques, there was no impediment for the complainant and accused to approach the trial Court and report the settlement or at least to file an appeal and report settlement. The defence of the accused that he has executed the sale deed in lieu of his liability arising out of the cheques in question is inconsistent with his

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defence that he was not aware of the conviction imposed by the trial Court.

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So far as the decisions relied upon by the accused are concerned, they are decided on the facts and circumstances therein and they are not applicable to the case on hand. In the light of principles enunciated in the decisions relied upon by the complainant and on the appreciation of oral and documentary evidence placed on record, the trial Court has rightly convicted the accused. Similarly after considering the futile attempt made by the accused to justify the delay of nearly 5 years 3 months, the Sessions Court has rightly dismissed the appeal filed by the accused on the point of limitation. On re-appreciation of the entire material placed on record, this Court finds no illegality or irregularity committed by the trial Court or the Sessions Court and absolutely there are no justifiable grounds to interfere with the same in exercise of the powers u/sec.397 Cr.P.C. and accordingly Points No.1 to 3 are answered in the negative.

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31. Point No.4: In view of findings on Points No.1 to 3, petition fails and accordingly the following:

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ORDER

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i. The petition filed by the accused u/sec. 397 r/w 401 Cr.P.C. is dismissed.

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ii. The impugned judgment and order dated 28.03.2018 in C.C.No.1787/2017 on the file of VI J.M.F.C., Belagavi and the judgment and order dated 01.08.2023 in Crl.A.No.172/2023 on the file of VIII Addl.Sessions Judge, Belagavi are hereby confirmed.

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iii. Registry is directed to send copy of this order to the trial Court and Sessions Court forthwith.

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CLK/KGK/AC

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Sd/JUDGE

Amey S/O Anant Kadam v. Shri Vijay Vithal Patil

Case brief

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Amey S/O Anant Kadam v. Shri Vijay Vithal Patil

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