Partly allowed

M/S. Eminence Build Tech Pvt. Ltd. v. Dr. Jagadeesh T. G.

Karnataka HC21 Jun 2024CRL.RP/951/2021

Case brief

AI extract

What is this about?

Accused convicted for dishonour of three cheques issued against a memorandum of understanding sought revision after conviction was upheld in appeal. The High Court maintained the conviction, finding no rebuttal to Section 139 presumption, but set aside Rs.10,000 ordered as defraying expenses of the State and reduced total fine to Rs.25,00,000 payable as compensation.

What did the court decide?

Conviction maintained; fine reduced to Rs.25,00,000 payable as compensation; Rs.10,000 defraying expenses set aside; time till 10.07.2024 to pay, else one year simple imprisonment for accused Nos.3 to

M/S. Eminence Build Tech Pvt. Ltd. Vs Dr. Jagadeesh T. G. — Cheque Dishonour | Karnataka HC (2024)

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NC: 2024:KHC:22578 CRL.RP No. 951 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO. 951 OF 2021

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BETWEEN:

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M/S. EMINENCE BUILD TECH PVT. LTD., NO. 723, MODI HOSPITAL ROAD, MAHALAKSHMIPURAM, BANGALORE - 560 086, REPRESENTED BY ITS MANAGING DIRECTOR NANDEESH C.K.

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MR. C.K. NANDEESH, S/O. KANABARGIMATH, AGED ABOUT 45 YEARS, R/AT NO. 723, MODI HOSPITAL ROAD, MAHALAKSHMIPURAM, BANGALORE - 560 086.

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Digitally signed by YAMUNA K L Location: High Court of Karnataka

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MR. MALLIKARJUNA REDDY, S/O. LATE MANIKYA REDDY, AGED ABOUT 53 YEARS, R/AT NO. 723, MODI HOSPITAL ROAD MAHALAKSHMIPURAM, BANGALORE - 560 086.

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MR. SOLOMAN, S/O. LATE M. PUTTARAJ, AGED ABOUT 60 YEARS, R/AT NO. 723, MODI HOSPITAL ROAD, MAHALAKSHMIPURAM, BANGALORE - 560 086.

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…PETITIONERS

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

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2 - NC: 2024:KHC:22578 CRL.RP No. 951 of 2021

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AND:

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DR. JAGADEESH T.G, S/O T.M. GURUMURTHY, AGED ABOUT 57 YEARS, R/AT NO. 306, 3RD FLOOR, KRISHNA LAKE VIEW, YEDIYUR, KANAKAPURA ROAD, BENGALURU - 560 004.

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…RESPONDENT

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(BY SRI. VINAY, ADVOCATE FOR SRI. C.V. SUDHINDRA, ADVOCATE)

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THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER/JUDGMENT DATED 06.01.2021 PASSED BY THE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN CRL.A.NO.1508/2016, CONFIRMING THE JUDGMENT AND SENTENCE DATED 22.11.2016 PASSED BY THE COURT OF THE XXIII A.C.M.M., AT BENGALURU IN C.C.NO.2898/2010 BY ALLOWING THE ABOVE RP.

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

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ORDER

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Heard Sri.Chandan, learned counsel appearing for Sri.Badravathi Siddeshwarao and Sri.Vijay, learned counsel appearing for for C.V.Sudhindra Rao. Accused Nos.2 to 5 who suffered an order of conviction in C.C. No.2898/2010,

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NC: 2024:KHC:22578 CRL.RP No. 951 of 2021

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confirmed in Criminal Appeal No.1508/2016 are the revision petitioners.

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The facts of the case for disposal of the revision petition are as under:

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The complainant and his wife are Dentists and are Master Degree Holders in Dentistry. Complainant and his wife are running an institution to train the Dental Doctors to take up the higher education in dental science. Accused no.2 – company represented by accused Nos.3 to 5 and Managing Directors of accused No.2 company had transaction with the complainant and his wife and in that regard there was a due in a sum of Rs.24,13,134/-. A memorandum of understanding was entered into. Towards the liability, freezed under the memorandum of understanding three cheques were issued amounting to Rs.20,00,000/-. Those cheques on presentation came to be dishonored. A legal notice was issued, for which an untenable reply was issued by the accused to the complainants. Therefore, the complainants sought action against the accused persons.

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NC: 2024:KHC:22578 CRL.RP No. 951 of 2021

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Learned Trial Magistrate took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act and after securing the presence of the accused persons, recorded plea. Accused persons pleaded not guilty and therefore trial was held. Learned trial magistrate recorded the accused statement thereafter and on behalf of the accused, one Sri.Mallikarjun Reddy who is fourth accused was examined as DW-1. A diary was marked as Exibit-D1 and some writings in the said diary was marked as Exhibits-D1(A) and D1(B).

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Thereafter, the trial court heard the parties and noting the transaction between the accused and the complainant, acquitted the first accused and convicted accused Nos.2 to 5 and imposed fine amount of Rs.25,10,000/-, of which Rs.25,00,000/- was ordered to be paid as compensation and Rs.10,000/- towards ‘defraying expenses’ of the State.

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Being aggrieved by the same, accused Nos.2 to 5 filed an appeal before the District Court in Criminal Appeal No.1508/2016. Learned Judge of the First Appellate Court after securing the records and hearing the parties in detail dismissed the appeal and confirmed the order of conviction. Being further

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NC: 2024:KHC:22578 CRL.RP No. 951 of 2021

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aggrieved thereby, the accused persons have preferred this appeal.

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Sri.Chandan, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that both the courts below have not properly appreciated the material on record and that the cheques were issued as the security and not towards legally recoverable debts and the transaction between the parties is not properly proved and the Memorandum of Understanding marked at Exhibit-P1 is not proved by the complainant properly and therefore sought for allowing the revision petition.

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Per contra Sri.Vinay, learned counsel for the respondents supports the impugned judgments.

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Having heard the learned counsel for the parties in detail, this Court has perused the material on record meticulously. On such perusal of the material on record, it is crystal clear that there was a transaction between the second accused and the complainant and in respect of the dues, the parties had sat together and entered into a Memorandum Of

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NC: 2024:KHC:22578 CRL.RP No. 951 of 2021

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Understanding marked at Exhibit-P1. The signatures of the accused are found in the Memorandum Of Understanding.

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Sri.Mallikarjun Reddy who is examined as DW-1 submits that the actual amount shown in the Memorandum Of Understanding is not the due that was payable to the complainant by the accused and in that regard he placed reliance on Exhibit-D1 which is a private diary. There is no dispute that the Memorandum Of Understanding and signatures found therein including the seal of the second accused company in the Memorandum Of Understanding.

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Thus, the trial judge was justified in placing the presumption under Section-139 of the Negotiable Instruments Act in respect of the three cheques which were marked at Exhibits-P2 to P4. Admittedly, cheques have been dishonored with an endorsement ‘funds insufficient’. Under such circumstances, the trial court did not deem it fit to consider the oral evidence of DW-1 coupled with the documentary evidence at Exhibit-D1 which would rebut the presumption available to the complainant u/s. 139 of the Negotiable Instruments Act and recorded an order of conviction. The same has been properly

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7 - NC: 2024:KHC:22578 CRL.RP No. 951 of 2021

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re-appreciated by the learned Judge in the First Appellate Court while dismissing the appeal of the accused.

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This Court, that too in revision jurisdiction, cannot revisit into the factual aspects of the matter. Suffice to say, that the material available on record is available to maintain the presumption in favour of the complainant and in the absence of rebuttal evidence, conviction recorded by the trial court confirmed by the First Appellate Court needs no interference.

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Having said this, it is seen that the trial magistrate and the learned Judge in the First Appellate Court misdirected themselves in imposing the fine of Rs.10,000/- towards the defraying expenses of the State. Inasmuch as the lis is privy to the parties and no State machinery is involved. Accordingly, to that extent, there needs to be interference

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13. Accordingly the following :

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ORDER

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i. Revision petition is allowed in part .

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8 - NC: 2024:KHC:22578 CRL.RP No. 951 of 2021

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ii. While maintaining the conviction of the accused / revision petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, fine amount awarded by the trial magistrate in a sum of Rs.25,10,000/- is reduced to Rs.25,00,000/- and the entire amount of Rs.25,00,000/- (Rupees Twenty Five Lakhs) shall be paid as compensation to the complainant.

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iii. The balance amount of Rs.10,000/- ordered to be paid to be State as defraying expenses is hereby set aside.

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iv. Time is granted for the accused to pay the balance fine amount till 10.07.2024, failing which the accused Nos.3 to 5 shall under simple imprisonment for a period of one year.

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JJ List No.: 1 Sl No.: 45 CT: BHK

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Sd/JUDGE

M/S. Eminence Build Tech Pvt. Ltd. v. Dr. Jagadeesh T. G.

Case brief

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M/S. Eminence Build Tech Pvt. Ltd. v. Dr. Jagadeesh T. G.

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