Dismissed

K M Veerabhadraiah v. B J Saroja

Karnataka HC22 Jun 2023RFA/1249/2019

Case brief

AI extract

What is this about?

Regular first appeal filed by plaintiffs against a judgment dismissing their suit for recovery of compensation from defendants convicted under Section 138 NI Act. The High Court dismissed the appeal, holding the trial court correctly noted the plaintiffs failed to challenge the prior criminal decree, rendering the suit devoid of merits.

What did the court decide?

The appeal was dismissed with costs of Rs.25,000/- payable to the Registrar General.

K M Veerabhadraiah Vs B J Saroja — Cheque Dishonour | Karnataka HC (2023)

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NC: 2023:KHC:21668 RFA No. 1249 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA

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REGULAR FIRST APPEAL NO. 1249 OF 2019 (MON)

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BETWEEN:

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K.M. VEERABHADRAIAH

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K.M. RENUKA

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THE APPELLANTS NO.1 & 2 ARE CHILDREN OF LATE B.K.S MARULASIDDAPPA AGED ABOUT 83 AND 80 RESPECTIVELY BOTH ARE PARTNERS OF B.K.S MARULASIDDAPPA AND SONS APMC YARD SHIVAMOGGA

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Digitally signed by ANUSHA V Location: HIGH COURT OF KARNATAKA

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THE APPELLANT NO.1 IS REPRESENTED BY HIS GPA HOLDER SRI. K.M. RENUKA S/O LATE B.K.S MARULASIDDAPPA AGED ABOUT 80 YEARS B.K.S MARULASIDDAPPA AND SONS APMC YARD SHIVAMOGGA-577 201 (2^ND APPELLANT)

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M/S. B.K. MARULASIDDAPPA & SONS A PARTNERSHIP FIRM HAVING ITS OFFICE AT APMC YARD SHIVAMOGGA-577 201 …APPELLANTS

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(BY SHRI. K. SANATH KUMAR SHETTY, ADVOCATE)

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2 - NC: 2023:KHC:21668 RFA No. 1249 of 2019

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AND:

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B.J. SAROJA W/O LATE BHOOPALAM R. RAJESH AGED ABOUT 73 YEARS R/A NO.66, ‘SANNIDHI’ 2^ND CROSS, RAVINDRANAGAR SHIVAMOGGA-577 201

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B.J. SUDHEER S/O LATE BHOOPALAM R. JAGADEESH AGED ABOUT 73 YEARS R/A NO.66, ‘SANNIDHI’ 2^ND CROSS, RAVINDRANAGAR SHIVAMOGGA-577 201

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M.N. LAKSHMI W/O M.S. NAGARAJ AGED ABOUT 51 YEARS ‘SOUNDARYA NILAYA’ OPP:BALAJI THEATER B.H.ROAD, HULIYAR TUMKUR DISTRICT-577 221

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M.N. JYOTHI W/O N. NAGABHUSHAN AGED ABOUT 45 YEARS ‘ANNAPOORNA NILAYA’ SANGOLLIRAYANNA ROAD GANDHINAGARA CHALLAKERE CHITRADURGA DIST-577 522

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H.R. RANI W/O H.S. RAVI AGED ABOUT 44 YEARS ALANKAR STORES BAZAR STREET NANJANAGUDU

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MYSORE DISTRICT-571 201 …RESPONDENTS

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF CPC, AGAINST THE ORDER DATED 01.03.2019 PASSED ON ISSUE NO.5 IN O.S.NO.196/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE SUIT FOR RECOVERY OF MONEY.

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NC: 2023:KHC:21668 RFA No. 1249 of 2019

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THIS RFA, COMING ON FOR ADMISSION , THIS DAY, P.S.DINESH KUMAR, J. , DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal by the plaintiffs is directed against judgment and decree dated 01.03.2019 on file of I Addl. Sr. Civil & C.J.M, Shivamogga, dismissing their suit.

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We have heard Shri. Sanath Kumar Shetty, learned Advocate for the appellants.

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For the sake of convenience, parties shall be

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referred to as per their ranking in the Trial Court.

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Briefly stated the facts of the case are, first defendant’s husband late Bhoopalam R. Jagadish had initiated proceedings under Section 138 of Negotiable Instruments Act, 1881, alleging that the plaintiffs had issued a cheque dated 15.09.1992 for a sum of Rs.1,00,000/- and the same had stood dishonoured. The Trial Court acquitted plaintiff in C.C. No.159/1993 vide judgment and order dated 15.04.2006. Complainant challenged the said order before this Court and this Court in Crl. A. No.1739/2006 convicted the accused and

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NC: 2023:KHC:21668 RFA No. 1249 of 2019

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sentenced to pay a sum of Rs.2,05,000/-. Out of the said amount a sum of Rs.2,00,000/- was directed to be paid to the complainant.

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Plaintiff has brought the instant suit on the premise that the compensation amount of Rs.2,00,000/- received by the defendants is contrary to Section 357 of Cr.P.C., and is against the fundamental principles of law and amounts to unjust enrichment. Plaintiff sought for recovery of the said amount with interest at 18% p.a. from 19.04.2008 till 18.01.2014 and thereafter, at the rate of 24% from the date of suit till the date of realization. In addition, plaintiff also sought a sum of Rs.27,00,000/- as damages.

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Defendants contested the suit contending inter alia that plaintiff has not challenged the order of sentence passed by this Court, in the Apex Court; and that the Trial Court had no jurisdiction to try the suit which involved the question of the legality of the judgment passed in Crl.A. No.1739/2006.

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NC: 2023:KHC:21668 RFA No. 1249 of 2019

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The Trial Court considered issue No.3 as

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preliminary issue and dismissed the suit as not maintainable with costs. Feeling aggrieved, plaintiff is before this Court.

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Shri. Sanath Kumar Shetty, for the appellant submitted that the order passed by this Court in Crl.A. No.1739/2006 is contrary to the law laid down by the Apex Court in R.Vijayan Vs. Baby and another¹ wherein, it is held that:

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“…that where the sentence imposed does not include a fine, that is, where the sentence relates to only imprisonment, the court, when passing judgment, can direct the accused to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. The reason for this is obvious…”.

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Therefore, the order passed by this Court is nonest in the eye of law. Consequently, the compensation amount received by the defendants amounts to unlawful enrichment. Hence, plaintiff is entitled for recovery of his claim made in the suit.

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1 (2012 ) 1 SCC 260 para 9

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NC: 2023:KHC:21668 RFA No. 1249 of 2019

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We have carefully considered the submissions of

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learned Advocate for the appellants. In substance, plaintiffs case is, the fine amount imposed by this Court which included compensation of Rs.2,00,000/- payable to the defendant (complainant) is contrary to law laid down by the Apex Court. Therefore, it amounts to unlawful enrichment by the defendants. Hence, the suit is maintainable.

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Admittedly, plaintiffs have suffered an order in Crl.A. No.1739/2006. Learned Trial Judge has rightly noted and recorded that plaintiffs have not chosen to challenge the order passed by this Court and it has attained finality. We are at one with the view taken by the learned Trial Judge. The appeal is devoid of merits and it is accordingly dismissed

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with cost of Rs.25,000/- payable to the Registrar General.

Sd/-

JUDGE

Sd/JUDGE

SPS

K M Veerabhadraiah v. B J Saroja

Case brief

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K M Veerabhadraiah v. B J Saroja

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