Karnataka High Court
Sri B A Abubakkar Saheb vs D K And Udupi Dist Fish on 3 October, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.526 OF 2014
BETWEEN:
SRI. B.A. ABUBAKKAR SAHEB,
AGED ABOUT 59 YEARS,
S/O. LATE ABDUL SAHEB,
R/A: DURAL ALEEMA MANZIL,
NEJAARU, SANTHEKATTE,
UDUPI TQ AND DISTRICT,
PIN-576 101.
....PETITIONER
(BY SRI. G.C. HARSHA, ADVOCATE FOR
SRI. NISHIT KUMAR SHETTY, ADVOCATE)
AND:
D. K. AND UDUPI DIST. FISH
MARKETING FEDERATION LTD.
P.B.NO.114, MULIHITHLU,
MANGALORE, D.K-575 101,
REPRESENTED BY ITS
MANAGING DIRECTOR,
GANAPATHI BHAT,
S/O K. SUBRAYA BHAT,
AGED ABOUT 52 YEARS.
...RESPONDENT
(BY SRI. S.V. PRAKASH, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PARYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED
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9.8.2012 PASSED BY THE J.M.F.C. (V COURT), MANGALORE IN
C.C.NO.176/2010 AND THE JUDGMENT AND ORDER DATED
2.7.2014 PASSED BY THE I ADDL. DIST. AND S.J., D.K.,
MANGALORE IN CRL.A.NO.236/2012.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 20.09.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the accused/revision petitioner under Section 397 r/w 401 for Cr P.C. challenging the judgment of conviction and order of sentence passed by JMFC-V Court, Mangalore, in C.C.No.176/2010, dated 09.08.2012 and confirmed by I Additional Sessions Judge, D.K., Mangalore, in Crl.A.No.236/2012, dated 02.07.2014.
2. For the sake of convenience the parties are here in are referred with the original ranks occupied by them before the trial Court.
3. The brief factual matrix leading to the case are as under:
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The complainant is a Co-operative Fish Marketing Federation registered under Karnataka Co-operative Societies Act, 1959 and the accused is a member of the complainant-Society and approached the complainant for the purchase of the fish and executed an agreement in favour of the complainant for purchase the prawns and other fish from the complainant on a credit basis at Hangarakatte Branch from 01.01.2007 to 10.06.2007. It is alleged that in the said transaction, the accused remained in due of Rs.6,06,095.65 to the complainant and on demand by the complainant to pay the dues, he issued a cheque dated 07.05.2009 for the said amount. When the said cheque was presented, it was dishonoured for insufficient of funds. It is alleged that that thereafter the complainant has got issued a legal notice and the legal notice sent under the certificate of posting was served and legal notice sent by registered post was returned as 'not claimed'. It is alleged that the accused has neither paid the cheque amount nor replied and hence, a complaint came to be lodged for the offence 4 punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act').
4. On the basis of the complaint, the learned Magistrate has taken cognizance of the offence and issued a process against the accused. The accused has appeared and he was enlarged on bail. The plea under Section 138 of the N.I. Act is read over and explained to the accused and he pleaded not guilty. To prove the guilt of the accused, the complainant has got examined two witnesses as PW1 and PW2 and placed reliance on fourteen documents marked at Ex.P1 to Ex.P14.
5. After the conclusion of the evidence of the complainant, the statement of accused under Section 313 Cr.P.C. is recorded to enable him to explain the incriminating evidence appearing against him in the case of the complainant. The case of accused is of total denial. However, the accused has got examined himself as DW1 and he also placed reliance on Ex.D1 to Ex.D5. 5
6. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of the N.I. Act by imposing a fine of Rs.8,05,000/-.
7. This judgment of conviction and order of sentence was challenged by the accused before the I Additional Sessions Judge, Mangalore, in Crl.A.No.236/2012. The learned Sessions Judge after re- appreciating the oral and documentary evidence, has dismissed the appeal. Against these concurrent findings, the accused is before this Court.
8. Heard the arguments advanced by the learned counsel for the revision petitioner and learned counsel for the respondent. Perused the records.
9. The learned counsel for the revision petitioner would contend that as per Ex.D2 to Ex.D5 he has already paid Rs.4,00,000/- and further evidence discloses that 6 there is Rs.1,00,000/- deposit and further payments have been made. Hence, he would contend that Ex.D2 to Ex.D5 are not reflected in the ledger extract and PW2 claims that the balance is only Rs.4,06,095/-. But the claim of the complainant is entirely different. It is further contended that the payments under Ex.D2 to Ex.D5 was not taken note of by both the Courts below and there is no explanation why they were ignored. Hence, he would contend that approach of both the Courts below is arbitrary and erroneous, which has resulted in miscarriage of justice. Hence, he would seek for allowing the revision.
10. Per contra, learned counsel for the respondent would contend that the transaction is as per Ex.P8 and Ex.D2 to Ex.D5 were pertaining to commission and since the cheque and signature has been admitted, the presumption under Section 139 is in favour of the complainant. Hence, he would dispute the contention of 7 the revision petitioner and sought for dismissal of the revision.
11. Having heard the arguments and after appreciating the oral and documentary evidence, now the following point would arise for my consideration:
"Whether the judgment of conviction and order of sentence passed by both the Courts below are perverse, erroneous and arbitrary so as to call for any interference by this Court?"
12. It is the specific contention of the complainant that, it is the Society and accused being a member has entered into an agreement to purchase the prawns and fish from the complainant on a credit basis at Hangarakatta branch from 01.01.2007 to 10.06.2007 and towards this transaction he was due to a sum of Rs.6,06,095.65 and a cheque was issued in this regard, which was bounced.
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13. It is further asserted by the complainant that the transaction is based on Ex.P8. On perusal of Ex.P8, it is evident that there was an agreement for furnishing security to the tune of Rs.1,00,000/- before participating in the auction and interestingly, it is not a sale, but it is authority for the auction and the agreement discloses that the accused is entitled to attend every bid and is required to deposit Rs.1,00,000/- as a security deposit. The clause No.15 discloses that security deposit is liable for confiscation and this agreement is from 01.01.2007 to 10.06.2007 alone. There is no dispute between the parties regarding Ex.P8.
14. PW1 who is the Managing Director, was got examined himself as PW1. In his examination-in-chief, he has reiterated the complaint allegations. In his cross- examination, he asserts that he is working from November 2008 in Mangalore branch and the accused is dealing in Hangarakatta Branch. He claims that agreement took in Mangalore main Branch, but the 9 accused was required to make payment to Hangarakatta Branch and this transaction is pertaining to Hangarakatta Branch. He further admits that the ledger extract produced is pertaining to Hangarakatta Branch. He further admits that the ledger extract Ex.P9 to Ex.P11 are pertaining to September 2004 to June 2007.
15. In the further cross-examination, he specifically asserts that Ex.P1 is with reference to the agreement Ex.P8 alone. He further asserts that as per Ex.P8 accused can purchase only the prawns and fish to the extent of Rs.1,00,000/- on credit basis and he further claims that the security deposit of Rs.1,00,000/- still is in their possession. He admits that they have got the power for confiscation for the said amount. In his further cross- examination, he admitted that the auction is required to be held every fifteen days and he denies the suggestion that accused has never purchased the prawns and fish worth of more than Rs.1,00,000/-. He further admits that 10 the manager of Hangarakatta Branch has not acted in terms of Ex.P8, but no steps were taken against him.
16. In the further examination, he claims that he cannot say as to when the accused made the last payment on the basis of the ledger extract in Ex.P9 to Ex.P11. He admits that subsequently accused has made the payment and he asserts that in 2009 he paid Rs.1,00,000/-.
17. In his further cross-examination, the complainant-PW1 has admitted Ex.D1 when it is confronted to him. He further admits that as per Ex.D1 Rs.1,50,000/- was received by the Society prior to lodging of this complaint itself. In that event, what prevented the complainant from referring the receipt of Rs.1,50,000/- in the complaint is not at all explained. Further on perusal of Ex.P1 it is evident that the bearer was struck of and order came to be written and the same was not signed. He further admits that whenever cheque was issued, a receipt was being issued. But in the instant 11 case, in respect of Ex.P1, the complainant has not produced any receipt. He denied that the entire payment was made by the accused. The evidence of this witness clearly establishes that Rs.1,50,000/- as referred in Ex.D1 was paid earlier itself i.e., 10.06.2009 itself and the complaint was lodged on 20.06.2009. But there was no reference of Ex.D1 in the complaint. His evidence further discloses that later on, again subsequent to filing to complaint Rs.1,00,000/- was paid, but he did not explain why these entries were not shown in Ex.P9 to Ex.P11.
18. Further PW2 is another witness who claims to be in charge branch manager of Malpe Branch and he claims that he was working in Hangarakatta Branch from 13.08.2004 to 15.11.2009. In his examination-in-chief, he has reiterated the complaint allegations and he asserts that Rs.1,50,000/- paid by the accused is referred in Ex.P12 and he relies on Ex.P13 and further asserts that Rs.50,000/- was paid and that was also recorded, which 12 is evident from Ex.P14. So according to this witness, only Rs.2,00,000/- was paid subsequent to the transaction, but PW1 himself admitted in his cross-examination that subsequently accused has also paid a sum of Rs.1,00,000/- by way of cheque, but there is no reference regarding payment of Rs.1,00,000/- in the evidence of PW2.
19. In the cross-examination, PW2 claims that he cannot say on which date between 01.01.2007 to 10.06.2007 the accused has purchased the fish from the Society and what was the value of the fish. He further admits that in Ex.P9 to Ex.P11 ledger extracts, there is no detail of this aspect. He further claims that the payments made by the accused were disclosed in ExP9 to Ex.P11.
20. When Ex.D2 - Ex.D5 were confronted, he admits that they were issued by the complainant-Society, but he tries to give an explanation that they were pertaining to the commission charges at the time of the sale of the fish. He admits Ex.D2 to Ex.D5, but he asserts 13 that they were pertaining to commission and further admits that the payment under Ex.D2 to Ex.D5 is not shown in Ex.P9-Ex.P11, but claims of having a separate register. The said register is not produced before the Court by the complainant. Under Ex.D2 to Ex.D5 Rs.50,000/- on 03.12.2007, Rs.50,000/- on 13.08.2007, Rs.25,000/- on 27.06.2007 and Rs.1,25,000/- on 13.03.2007 was paid to the Society. These payments were admittedly not found in Ex.P9 to Ex.P11 and they were made prior to the alleged transaction. The total amount of these payments is about Rs.2,50,000/-. Though it is contended that the payments under Ex.D2 to Ex.D5 were pertaining to commission, in Ex.P8 there is no reference of commission. The entire claim of complainant is based on Ex.P8, which permits the accused to participate in the bid and purchase the goods by depositing a security amount of Rs.1,00,000/-. There is no agreement regarding charging the commission and on what basis the commission is claimed is not explained. Though PW2 claims that a separate ledger is maintained 14 regarding this transaction of payment of commission, the same was not produced before the Court. Hence, it is evident that under Ex.D1 to Ex.D5 more than Rs.4,00,000/- is paid and admissions given by PW1 himself disclose that subsequently, again Rs.1,00,000/- was paid.
21. Even the complainant-PW2 admitted that all the purchases were not referred in Ex.P9 to Ex.P11. When there is no agreement for charging commission, how the complainant has adjusted the payments made under Ex.D2 to Ex.D5 towards commission is not at all explained. The ledger extract pertaining to commission is also not produced and the explanation offered by PW2 in this regard is not acceptable.
22. The oral and documentary evidence produced by the complainant and cross-examination of PW1 and PW2 itself clearly disclose that the complainant has failed to prove the legally dischargeable debt to the tune of Rs.6,06,095.65 as asserted. Even all along, it is asserted 15 that whenever amount is paid by way of cheque a receipt would be issued and in that event, nothing prevented the complainant from producing a copy of the receipt book to prove that this cheque was issued towards payment. The assertion of the accused is that the cheque was only obtained by way of security and from Ex.D2 to Ex.D5 establish payment of Rs.4,00,000/- and PW1 admitted payment of Rs.1,00,000/- by way of cheque and Rs.1,00,000/- is already there as a security deposit. Hence, almost the entire payment was made by the accused, but the complainant is still prosecuting without giving any proper explanation.
23. Both the Courts below failed to appreciate the oral and documentary evidence in proper perspective and in a mechanical way on the basis of Ex.P1 cheque and Ex.P8 proceeded to convict the accused. They did not consider the cross-examination and they did not verify Ex.D2 to Ex.D5 and admissions given by PW1 and PW2 in this regard. The entire approach of both the Courts below 16 is perverse, arbitrary and erroneous, which has resulted in miscarriage of justice. Hence, considering these facts and circumstances, it is evident that the complainant has failed to prove that the cheque Ex.P1 was issued towards legally enforceable debt and hence, question of convicting the accused for the offence punishable under Section 138 of the N.I. Act does not arise at all. The accused has raised a probable defence by producing the material documents and cross-examining PW1 and thereby he has rebutted the presumption available in favour of the complainant and thereafter, the complainant has not discharged his burden of proving that the cheque was issued towards legally enforceable debt. Hence, considering these facts and circumstances, the conviction order passed by both the courts below does not survive and calls for interference by this Court. As such, the point under consideration is answered in the affirmative and accordingly, I proceed to pass the following:
ORDER
(i) The revision petition is allowed. 17
(ii) The impugned judgment of conviction and order of sentence passed by JMFC-V Court, Mangalore, in C.C.No.176/2010, dated 09.08.2012 and confirmed by I Additional Sessions Judge, D.K., Mangalore, in Crl.A.No.236/2012, dated 02.07.2014, are set aside.
(iii) The accused stands acquitted for the offence punishable under Section 138 of the N.I. Act stands and he is set at liberty forthwith.
(iv) The bail bonds executed by the accused/revision petitioner stand cancelled.
(v) The amount deposited by the accused/revision petitioner if any, in courts shall be paid to him.
Sd/-
JUDGE DS