Partly allowed

M/S Eminence Build Tech Pvt. Ltd. v. Mr. v Vijayakumar

Karnataka HC3 Dec 2024CRL.RP/748/2021

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision challenging conviction under Section 138 NI Act, holding that the accused failed to rebut statutory presumptions due to lack of evidence regarding alleged cheque misuse. The court partially allowed the revision by setting aside the Rs. 10,000 fine imposed for state expenses.

What did the court decide?

Conviction under Section 138 NI Act maintained. Total fine reduced from Rs. 8,00,000 to Rs. 7,90,000 payable as compensation. Rs. 10,000 fine for state expenses set aside.

M/S Eminence Build Tech Pvt. Ltd. Vs Mr. v Vijayakumar — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:49595 CRL.RP No. 748 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 748 OF 2021

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BETWEEN:

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M/S EMINENCE BUILD TECH PVT LTD HAVING ITS OFFICE REGISTERED ADDRESS AT NO. 145, AZAD NAGAR CHAMARAJPET 1ST MAIN MYSORE ROAD, BANGALORE - 560 018 ITS DIRECTOR OF MALLIKARJUN REDDY.

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MR. MALLIKARJUNA REDDY DIRECTOR, M/S EMINENCE BUILD TECH PVT LTD., NO.132, 9TH MAIN, VENAKTESHWARA LAYOUT MATHIKERE,BANGALORE - 560 054.

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Digitally signed by HEMALATHA A Location: HIGH COURT OF KARNATAKA

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MR. P B SOLOMON RAJ DIRECTOR, M/S EMINENCE BUILD TECH PVT LTD., R/AT NO. 462, F-BLOCK, 19TH MAIN 13TH CROSS, SAHAKARANAGAR, BANGALORE – 92.

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…PETITIONERS

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(BY SRI. CHANDAN B K., ADVOCATE FOR SRI. BHADRAVADI SIDDESWARA.,ADVOCATE)

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AND:

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MR. V VIJAYAKUMAR S/O MUNIRAM AGED ABOUT 63 YEARS R/AT NO.17, SADASHIVA MUDALIAR ROAD

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NC: 2024:KHC:49595 CRL.RP No. 748 of 2021

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BEHIND GOOD SHARPED CHURCH MURPHY TOWN, BANGALORE - 560 008

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…RESPONDENT

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(BY SRI. RAGHAVENDRA B S.,ADVOCATE [ABSENT])

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER/JUDGMENT DATED 10.12.2020 PASSED BY THE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU IN CRL.A.NO.214/2017, CONFIRMING THE JUDGMENT AND SENTENCE DATED 17.01.2017 PASSED BY THE COURT OF THE XIII A.C.M.M., BENGALURU IN C.C.NO.31784/2014 DATED 17.01.2017 BY ALLOWING THE ABOVE CRL.RP.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri.Chandan.B.K. for Mr.Bhadravadi

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Siddeswara, learned counsel for the revision petitioner. None appears for the respondent.

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Accused, who have suffered an order of conviction in C.C.No.31784/2014 dated 17.01.2017 on the file of the XIII Additional Chief Metropolitan Magistrate, Bengaluru for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’ for short) and confirmed in Crl.A.No.214/2017 dated 10.12.2020 by the LXII

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Additional City Civil & Sessions Judge, Bengaluru and ordered to pay a fine of Rs.8,00,000/- of which Rs.7,90,000/- as compensation to the complainant and Rs.10,000/- towards defraying expenses of the State, have preferred this present revision.

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Facts in the nut shell for disposal of the revision petitioner are as under:

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3.1. A complaint came to be lodged under Section 200 of Cr.P.C. with the jurisdictional Magistrate alleging the commission of offence punishable under Section 138 of the NI Act by contending that accused Nos.2 and 3 are the Directors of the accused No.1, Company, who are in the business of construction of buildings and real estate. In order to augment the business, they borrowed sum of Rs.6,00,000/- as hand loan from the complainant. The accused had assured to repay the same within 12 months. Even after completion of period of 12 months, the accused failed to repay the same. Therefore, demands were made.

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3.2. Towards repayment of the debt, three cheques

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bearing No.101288 dated 10.07.2014 for Rs.3,00,000/-, No.101287 dated 10.07.2014 for Rs.1,00,000/- and No.101318 dated 14.07.2014 for Rs.2,00,000/- drawn on Union Bank of India, Rajajinagar Branch, Bengaluru were given. Those cheques on presentation, came to be dishonored with an endorsement ‘funds insufficient’.

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3.3. Thereafter, legal notice was issued. Despite of summons of legal notice, there was no reply nor compliance to the callings of the legal notice resulting in complainant seeking action against the accused.

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Learned Trial Magistrate after completing necessary formalities, summoned the accused and recorded the plea. Accused pleaded not guilty and therefore, trial was held.

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In order to prove the case of the complainant,

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he got examined himself as P.W.1 and placed on record, fifteen documentary evidences, which were exhibited and

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NC: 2024:KHC:49595 CRL.RP No. 748 of 2021

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marked as Exs.P.1 to P.15 comprising of cheque, Bank Endorsement, copy of legal notice, postal receipt, postal acknowledgement and complaint and etc.

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Detailed cross-examination of PW-1 did not

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yield any positive material so as to disbelieve the version of the complainant nor to dislodge the presumption available to the complainant under Section 139 of the NI Act.

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Accused statement as is contemplated under Section 313 of Cr.P.C. was recorded by learned Trial Magistrate, wherein, accused have denied all the incriminatory circumstances.

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To rebut the presumption available to the complainant under Section 139 of the NI Act, accused No.2 stepped into the witness box and got examined himself as D.W.1 and placed on record two documents as Ex.D-1 and D-2.

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On conclusion of recording of the evidence of

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the parties, learned Trial Magistrate heard the parties in detail and after considering the oral and documentary evidence placed on record, convicted the accused as aforesaid.

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Being aggrieved by the same, accused have preferred an appeal before the First Appellate Court in Crl.A.No.214/2017.

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Learned Judge in the First Appellate Court after securing the records, heard the parties in detail and on reappreciation of the material evidence on record meticulously, dismissed the appeal of the accused.

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Being further aggrieved by the same, accused are before this Court, in this revision.

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Sri.B.K.Chandan, learned counsel appearing on behalf of Mr.Bhadravadi Siddeswara, learned counsel for the revision petitioner/accused reiterating the grounds urged in the petition, vehemently contended that the

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learned Trial Magistrate and learned Judge in the First Appellate Court have grossly erred in raising the presumption in favour of the complainant by following the dictum of Hon’ble Apex Court in the case of RANGAPPA vs. SRI MOHAN reported in AIR 2010 SC 1898 resulting in miscarriage of justice and sought for allowing the revision.

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He further contended that the lending capacity of the complainant was questioned in detail and therefore, the Trial Court ought not to have raised the presumption.

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He further contended that the complainant colluded with one Keshav Kishore Kumar, who was actually the person who obtained the cheqeus from the accused and misused the same in active collusion with the complainant. Hence, sought for allowing the revision petition.

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Respondent counsel absent today.

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In the light of the arguments put forward on

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behalf of the accused, 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 the cheques are belonging to the accused No.1, Company, signed by accused No.2. In the cross examination of PW-1, it has been suggested that Keshav Kishore Kumar and father of the complainant, namely, Chennakeshavalu had lent a sum of Rs.35,28,200/- in the year 2007-08 for the purchase of a plot from the accused and at that juncture, there was no agreement. Keshav Kishore Kumar and Chennakeshavalu have collected 11 singed blank cheques from the accused which was misused by the complainant in filing a false case against the accused. The same is denied. In order to establish that the cheuqes were infact given to Keshav Kishore Kumar and Chennakeshavalu, there is no positive evidence placed on record on behalf of the accused. Neither Keshav

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Kishore Kumar nor Chennakeshavalu is cited as witnesses

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and examined on behalf of accused.

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Under such circumstances, the suggestion made

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to PW-1 that cheques have been misused remains as a suggestion on record without their being any plausible proof placed on record by the accused.

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It is pertinent to note that the complainant enjoys the presumption under Section 139 of the NI Act having deposed before the Court about the transaction and placing documentary evidence on record. But the said presumption is a rebuttable presumption.

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In order to rebut the presumption, accused No.2 no doubt stepped into the witness box and got examined himself as DW-1, but the theory put forward by the accused is not proved by the accused in establishing that there was active collusion between Keshav Kishore Kumar and complainant in misusing the cheques. Moreover, no criminal complaint has been lodged by the

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accused against Keshav Kishore Kumar or the

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complainant, which exposes the hollowness in the case of the accused.

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All these factors have been cumulatively appreciated by the learned Trial Magistrate while passing an order of conviction.

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Learned Judge in the First Appellate Court has also reappreicted these aspects of the matter in the appeal

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filed by the accused and concurred with the finding recorded by the learned Trial Magistrate in convicting the accused for the aforesaid offences.

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This Court, that too, in the revisional jurisdiction, cannot revisit into the factual aspects of the matter in annulling the well reasoned judgments of both the courts recording an order of conviction against the accused.

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Having said thus, it is noticed that out of the fine amount, a sum of Rs.10,000/- is imposed by the

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learned Trial Magistrate towards the defraying expenses of the State. Since lis is privy to the parties and no State machinery is involved, imposing the sum of Rs.10,000/towards defraying expenses of the State cannot be countenance in law and to that extent, the matter requires interference.

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26. Accordingly, the following:

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ORDER

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i. Revision petition is allowed in part .

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ii. While maintaining the conviction of the

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accused for the offence punishable under Section 138 of the NI Act, fine amount awarded by the learned Trial Magistrate confirmed by the learned Judge in the First Appellate Court is reduced to sum of Rs.7,90,000/- from Rs.8,00,000/-.

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iii. Entire sum of Rs.7,90,000/- is ordered to be paid as compensation to the complainant on

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or before 31.12.2024, failing which, accused Nos.2 and 3 are directed to undergo simple imprisonment as ordered by the learned Trial Magistrate and confirmed by the First Appellate Court.

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iv. Fine amount in a sum of Rs.10,000/- ordered by the learned Trial Magistrate confirmed by the First Appellate Court towards defraying expenses of the State, is hereby set aside.

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In view of disposal of the main petition, all pending IAs would not survive for consideration. Accordingly, the same are consigned to records.

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Sd/(V SRISHANANDA) JUDGE

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List No.: 1 Sl No.: 41

M/S Eminence Build Tech Pvt. Ltd. v. Mr. v Vijayakumar

Case brief

What is this about?

What did the court decide?

M/S Eminence Build Tech Pvt. Ltd. v. Mr. v Vijayakumar

Case brief

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