Partly allowed

M Babu Sab v. District Adult Education Officer

Karnataka HC6 Jun 2024CRL.RP/370/2021

Case brief

AI extract

What is this about?

Cheque-dishonour revision against conviction for two dishonoured cheques totalling over Rs.3 lakh given after cancellation of a fruit-plucking tender. Court held cheques were not security cheques and complaint was in time; conviction maintained, State expenses fine set aside.

What did the court decide?

Conviction maintained; fine reduced to Rs.3,25,000/- payable as compensation; Rs.5,000/- State-expenses fine set aside; default imprisonment six months if unpaid by 30.06.2024.

M Babu Sab Vs District Adult Education Officer — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:19584 CRL.RP No. 370 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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CRIMINAL REVISION PETITION NO. 370 OF 2021

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BETWEEN:

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M. BABU SAB S/O CHACHA SAB AGED ABOUT 51 YEARS R/O FRUIT MERCHANT A A CIRCLE, O T ROAD SHIVAMOGGA - 577 201.

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…PETITIONER

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(BY SRI HALLI SHANTAPPA BASAPPA, ADV.)

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AND:

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DISTRICT ADULT EDUCATION OFFICER TUNGA VIDYA PEET, GAJANUR SHIVAMOGGA TQ AND DIST - 577 201.

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…RESPONDENT

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(RESPONDENT SERVED)

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE PASSED BY THE LEARNED II-JMFC, SHIVAMOGGA IN C.C.NO.28/2018 DATED 26.11.2019 AND ALSO THE JUDGMENT AND ORDER PASSED BY THE LEARNED III ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN CRL.A.NO.273/2019 DATE 04.12.2020.B. TO ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I ACT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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NC: 2024:KHC:19584 CRL.RP No. 370 of 2021

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ORDER

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Heard Sri Halli Shantappa Basappa for the petitioner. Respondent, though served with the notice, has remained absent.

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The revision petitioner is the accused who suffered an order of conviction in C.C.No.28/2018 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1882 (for short, 'N.I.Act') and ordered to pay fine of Rs.3,30,000/-, of which, a sum of Rs.3,25,000/- to be paid as compensation to the complainant and a sum of Rs.5,000/- to be remitted to the State towards expenses of the case, which was confirmed in Crl.A.No.273/2019.

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Facts which are utmost necessary for disposal of the present revision petition unfold as under:

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The District Adult Education Officer, Tunga Vidhya Peeta, Gajanur, Shivamogga Taluk, filed a complaint under Section 200 Cr.PC against the accused-revision petitioner for taking action for the offence punishable under Section 138 of the N.I.Act, by contending that accused was a successful bidder in respect of the tender-cum-public auction held on 25.11.2010 in respect of plucking of Chickoo fruits and Mango fruits. Accused

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having accepted the terms and conditions of the tender, failed to carry out his obligation, and therefore, after making several correspondence, his tender was cancelled and there was a retender.

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It was further contended on behalf of the complainant that towards the liability to the Institution, accused had passed on two cheques bearing No.654787 in a sum of Rs.2,00,000/and another cheque bearing No.654788 in a sum of Rs.1,24,532/-, both were drawn on State Bank of Mysuru, Shivamogga Branch, in favour of the complainant.

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Both the cheques were presented for encashment on 20.09.2013 and they were dishonoured with an endorsement 'funds insufficient' on 25.09.2013.

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Legal notice was issued by the complainant, for which there was an untenable reply, and therefore, the complainant was constrained to file the complaint seeking action against the accused. On receipt of the complaint, learned Trial Magistrate took cognizance of the offence punishable under Section 138 of the N.I.Act and secured the presence of the accused.

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Plea was recorded and accused pleaded not guilty, as such, trial was held. In order to prove the case of the complainant, authorized person of the complainant by name - Khalandar Khan was examined as PW-1 and nine documentary evidence was placed on record which were exhibited and marked as Exs.P-1 to P-9 comprising of two dishonoured cheques, bank endorsements, copy of the legal notice, postal receipt, postal acknowledgment, reply notice and copy of a document. Accused statement as is contemplated under Section 313 Cr.PC was recorded, wherein accused has denied all the incriminating evidence found in the case of the complainant were put to him.

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Thereafter, accused got examined himself as DW-1 and placed on record ten documentary evidence in support of his case to rebut the presumption available to the complainant, which were exhibited and marked as Exs.D-1 to D10. Among them, Ex.D-1 is the certified copy of the order sheet, vakalath and other documents in respect of civil suit, Exs.D-2 & D-3 are the office copies of the notices dated 30.09.2013 and 09.12.2013, Ex.D-4 is the certified copy of the memo, Exs.D-5 & D-6 are the postal endorsements, Ex.D-7 is the bill, Ex.D-8 is

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the application given by MESCOM, Ex.D-9 is the application claiming loss and Ex.D-10 is the letter issued to the accused.

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Learned Trial Magistrate, thereafter, heard the arguments in detail and by judgment dated 26.11.2019, allowed the complaint and convicted the accused for the offence punishable under Section 138 of the N.I.Act and imposed fine of Rs.3,30,000/-, out of which, a sum of Rs.3,25,000/- was ordered to be paid as compensation to the complainant and balance of Rs.5,000/- was ordered to be appropriated towards the expenses of the case by the State.

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Being aggrieved by the said judgment of conviction and order of sentence, accused preferred an appeal before the District Court, Shivamogga, in Crl.A.No.273/2019.

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The learned Judge in the First Appellate Court after securing the records and hearing the arguments of both sides, by judgment dated 04.12.2020, dismissed the appeal of the accused and confirmed the order of conviction and sentence passed by the learned Trial Magistrate.

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Being further aggrieved by the orders, the accused has preferred the present revision petition on the following grounds:

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It is submitted that, judgment and order of conviction and sentence passed by the both the courts below is highly illegal, besides being erroneous. As such same is liable to be set aside.

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It is submitted that, both the courts below failed to consider the case properly while passing the impugned judgment and order of conviction and in the present case, the respondent is the complainant and has not produced the authorization letter to represent the case and even in the complaint or in the evidence nothing was stated as authorization to conduct the case.

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It is submitted that, the both the courts below has failed to consider that the complainant has clearly admitted in the cross examination that, the alleged cheques was given for security and same has been misused by the complainant and filed the alleged complaint against the accused and also transaction in between the petitioner and the respondent is a civil nature and the

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petitioner has also filed O.S.No.836/2013 against the respondent for violation of the terms and condition of the tender.

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• It is submitted that, the both the courts below has failed to consider that, the respondent has submitted the PCR.No.5330/2014 before the III ADDL CIVIL JUDGE and JMFC, Shivamogga and later it was registered as CC.No.395/2015 on the very same cheque in question and after hearing on 30/1/2015 Hon'ble Court was pleased to returned to the complainant to present the same before the competent court of jurisdiction within the 30 days from date of order, and the complaint/respondent has received the records on 4/3/2015 and presented the alleged complaint on 5/3/2015 and therefore, it is clearly goes to shows that, the complainant has not complied the court order and not submitted the within a stipulated time granted by the Hon'ble Court, the complaint itself barred under law of limitation and no findings on this material legal aspects. Hence the complaint filed by the respondent before the trial court is barred under law.

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• It is submitted that, both the courts below have failed to consider that the proviso 138 and 142(b) of the Negotiable Instruments Act, 1881 while passing the impugned judgments, but the lower appellate court grossly erred held that complaint is not barred by limitation and recorded the findings that, the complaint was returned to the complaint only on 4/3/2015 and on the next day i.e., on 5/3/2015, the complaint was represented before the JMFC-II Court, Shivamogga. In the present case, the III ADDL CIVIL JUDGE AND JMFC, Shivamogga returned the complaint to represent the same before the jurisdictional court within 30 days from the date of this order, so the cause of action arose to represent the complaint on 30/1/2015 and the complaint ought to have represent the complaint on or before 1/3/2015, but the respondent has represented on 5/3/2015. So the complaint itself is barred by law of limitation.

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• It is submitted that, both the courts below have not considered the documents produced by the petitioner as Ex.D-2, Ex.D-3, Ex.D-5 and Ex.D-10 while passing the impugned judgment and order of conviction and all these documents are clearly goes to show

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that, the petitioner has cleared off the alleged dues to the respondent.

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• It is submitted that the judgments and order of conviction both the courts below is contrary to law weight of evidence and probabilities of the case.

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Viewing from any angle the judgments and order of conviction both the courts below is not sustainable in the eye of law. As such same is liable to be set aside.

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Learned Counsel for the petitioner Sri Halli Shantappa Basappa reiterating the grounds urged in the revision petition strenuously contended that both the courts have not properly appreciated the material aspects of the matter in its proper perspective and wrongly convicted the accused and sought for allowing the revision petition.

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He also pointed out that initially complaint came to be filed before the III Addl. Civil Judge and Judicial Magistrate First Class at Shivamogga and later on, for want of jurisdiction, the same was ordered to be re-presented before the II Addl. Civil Judge & Judicial Magistrate First Class, and there was a delay of more than two months in so doing, and therefore, the

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complaint before the II Addl. Civil Judge & Judicial Magistrate First Class, Shivamogga, was clearly barred by limitation and the said aspect of the matter though argued before the learned Trial Magistrate, the learned Trial Magistrate did not choose to answer the question of limitation in the judgment dated 26.11.2019 resulting in gross injustice.

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He also pointed out that though the learned Judge of the First Appellate Court took into consideration the said plea of the accused, has wrongly appreciated the material facts and has held that the complaint is in time, and therefore, the accused is put to untold hardship.

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His next point to attack the impugned orders is, that the complaint was filed by unauthorized person, and therefore, the complaint itself was not maintainable.

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Third ground on which the impugned orders are assailed by the Counsel for the revision petitioner is that cheques were given as security and the same has been accepted by PW-1 in his cross-examination and that those cheques were misused by the complainant and the same is brought to the notice of the complainant by issuing the notice at Ex.D-2 dated 30.09.2013,

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NC: 2024:KHC:19584 CRL.RP No. 370 of 2021

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and as such, the learned Trial Magistrate ought not to have convicted the accused and the First Appellate Court ought not to have confirmed the judgment of the learned Trial Magistrate, and sought for allowing the revision petition.

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In support of the said aspects of the matter, learned Counsel for the petitioner, placed reliance on the judgment of the Hon'ble Apex Court in the case of M.S.NARAYANA MENON ALIAS MANI VS STATE OF KERALA & ANOTHER reported in AIR 2006 SUPREME COURT 3366 . He drew the attention of this Court to paragraph 57 of the said judgment, which reads as under:

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"57. We in the facts and circumstances of this case need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The Appellant clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque

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therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act."

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Respondent in the case though served in this revision petition, remained unrepresented.

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In the light of the arguments putforth on behalf of the revision petitioner, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that cheques were given by the accused in favour of the complainant and the signatures found therein is not in dispute. According to the accused, the same were given as security. PW-1 does not admit that the cheques were given as security, but while confronting the contents of the notice at Ex.D-2 dated 30.09.2013, PW-1 admits that there is a mention in Ex.D-2 that it has been given as security. What has been admitted by PW-1 in his cross-examination is the contents of Ex.D-2 and not the

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fact of issuing the cheques as security. There is a difference between PW-1's admission that Exs.P-1 & P-2 - cheques were

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given as security at the inception, than the contents of Ex.D-2 which is dated 30.09.2013 wherein the accused has taken a contention that it has been issued for security.

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In other words, the admission as is sought to be portrayed by the Counsel for the petitioner is not the admission made by PW-1 that cheques were issued for security.

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It is pertinent to note that cheques were presented on 20.09.2013 and the bank endorsement is dated 25.09.2013 of dishonour. Cheques were not dishonoured on any other ground other than 'funds insufficient'. The legal notice is dated 30.09.2013. Admittedly, it is an after thought by the accused to some how avoid the rigors of law.

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Further, there is no mention of Ex.D-3 at all in the crossexamination of PW-1. Ex.D-3 is dated 09.12.2023. There is no postal endorsement or the acknowledgment for having served Ex.D-3 on the complainant.

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Therefore, in the absence of any proper proof that cheques were actually issued as security at the time of tender, is not established by the accused by placing cogent and convincing evidence on record.

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When once the cheques have been parted away by the accused from his custody to the complainant and the signatures found therein are admitted by the accused, the presumption as is available to the complainant under Section 139 of the N.I.Act comes into operation.

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No doubt it is a rebuttal presumption. To rebut the said presumption, accused got himself examined as DW-1 and has led in oral evidence. Perusal of oral evidence of the accused results in fact that accused was a successful bidder in respect of plucking of Chickoo fruits and Mango fruits with the complainant-organization. However, according to the complainant, there were lapses on the part of the accused, and therefore, several correspondences ensued and ultimately canceling the contract with the accused and asking him to pay the amount due towards the tender. Admittedly, there was a re-tender and altogether a new person subsequently. The said action of the complainant was also challenged by the accused by filing a civil suit, but he was unsuccessful, and therefore, he withdrew the suit. As such, the fact remains that accused did not take action further with regard to the termination of the

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tender or for that matter as is contended in Ex.D-2 further action for the alleged misuse of the cheques.

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It is pertinent to note that in Ex.D-2 itself, the accused has threatened the complainant that if further action is taken under the provisions of the N.I.Act, accused would take necessary action against the complainant. But no such action has been taken. A normal prudent person especially after issuing the notice and participating in the criminal case by engaging a counsel, why would he keep quiet without taking any action against the complainant, if there is misuse of cheque, is a question that remains unanswered on behalf of the accused.

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Having said so, the rebuttal evidence placed on record by the accused denying the very liability under the cheques and also trying to maintain a defence that the cheques were issued towards security and having failed to establish the said fact, the finding recorded by the Trial Magistrate, if not in so many words, that the accused has failed to rebut the presumption available to the complainant under Section 139 of the N.I.Act cannot be faulted with.

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The said aspect of the matter has been dealt in detail by the learned Judge of the First Appellate Court and on reappreciation of the material evidence on record, concurred with the finding recorded by the Trial Magistrate in holding that the cheques were issued towards legally recoverable debt. Therefore, the order of the First Appellate Court in holding that there was no misuse of cheques and the cheques were dishonoured for want of funds cannot be interfered with by this Court that too in revisional jurisdiction. Accordingly, the principles of law enunciated in the judgment referred to supra by the Counsel for the petitioner has no application to the facts and circumstances of the present case.

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Having said thus, two more important legal aspects is canvassed by the learned Counsel for the petitioner viz., question of limitation and question of validity of authorization to present the complaint.

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Admittedly, the complainant is an organization. The complainant can be represented by a authorized person who has filed the complaint and the agency is ratified by issuing authorization letter. Therefore, on that ground, the complaint cannot be held to be defective.

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In so far as the limitation is concerned, admittedly, the complaint came to be filed before the III Addl. Civil Judge & Judicial Magistrate First Class, Shivamogga. For want of some territorial jurisdiction, as the law stood then, the complaint was ordered to be returned to the complainant for re-presentation before the proper court. The endorsement found in the registers has been dealt in detail by the learned Judge in the First Appellate Court in paragraph no.14 of the impugned judgment. For ready reference, the said paragraph is extracted hereunder:

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"14. It is pertinent to note that this complaint was pending before the III Addl. Civil Judge and JMFC, Shivamogga and for want of jurisdiction, the complaint was returned to the complainant so as to present it before the proper court. Order for return of complaint was made on 31.01.2015 as per the proforma for return of complaint and at Col. No.7, the date of hearing if given mentioned as "within 30 days from the date of this order". At Col. No.8 Acknowledgment of the party/Advocate for having received the complaint, it is mentioned that "Received complaint and original document on 04.03.2015" and the complaint was re-presented before the JMFC-II on 05.03.2015. The learned counsel for the accused vehemently argued that

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the complaint was not re-presented within the limitation period or within the time prescribed by the Court and therefore, the complaint is not maintainable. Though the court passed order to represent the complaint within 30 days from the date of order, the complaint was returned to the complainant only on 04.03.2015 and on the next day i.e., on 05.03.2015, the complaint was represented before the JMFC-II Court, Shivammogga and therefore, the complaint is not barred by limitation and hence, the argument on this aspect cannot be accepted."

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As could be seen from the discussion made in paragraph 14 by of the First Appellate Court, complainant had no hand whatsoever in the delay that has occurred in the court proceedings. Admittedly, on 04.03.2015, the complaint is actually returned to the hands of the complainant for representation before the proper court.

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Immediately on the very next date i.e., 05.03.2015, the complaint is re-presented before the proper court. As such, hardly there was any delay that could be attributed to the complainant so as to dismiss the complaint on the ground of limitation.

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Since the accused has failed to prove that the cheques were issued towards security and there is no material on record to establish the fact that the cheques were misused by the complainant and other material available on record would show that accused was a successful bidder and it was not even disputed by the accused, this Court is of the considered opinion that the conviction recorded by the learned Trial Magistrate and confirmed by the First Appellate Court, is just and proper, and therefore, requires no interference.

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Having said thus, the learned Trial Magistrate has awarded a sum of Rs.5,000/- towards expenses of the case to be paid as the fine to the State which has also been upheld by the learned Judge in the First Appellate Court, cannot be countenanced in law, in as much as, the lis is privy to the parties and no State machinery is involved. Accordingly, imposing fine of Rs.5,000/- towards the defraying expenses of the State, needs interference in this revision.

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Hence, the following:

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ORDER

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a) Revision petition is allowed in part;

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b) While maintaining the conviction of the accused for the offence punishable under Section 138 of the N.I.Act passed by the learned Trial Magistrate and confirmed by the First Appellate Court, the fine amount of Rs.3,30,000/- is reduced to Rs.3,25,000/- and the entire fine amount of Rs.3,25,000/- is to be paid as compensation to the complainant;

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c) If the accused fails to pay the balance amount on or before 30.06.2024, the accused shall undergo imprisonment for a period of six months;

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d) Fine amount of Rs.5,000/- ordered by the learned Trial Magistrate towards defraying expenses of the State is hereby set aside;

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e) Office is directed to return the Trial Court records along with the copy of this order, forthwith.

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Sd/JUDGE

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M Babu Sab v. District Adult Education Officer

Case brief

What is this about?

What did the court decide?

M Babu Sab v. District Adult Education Officer

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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