Karnataka High Court
Mr Mujahid Khan vs Smt Asha K N on 9 August, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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NC: 2023:KHC:28685
CRL.RP No. 678 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 678 OF 2019
BETWEEN:
MR. MUJAHID KHAN,
AGED ABOUT 50 YEARS,
MANAGING DIRECTOR,
GROUP OF COMPANIES OF
M/S. NAAZ CONSTRUCTION COMPANY,
M/S. NAAZ GRANITE TRADING COMPANY,
NO.74, 2ND CROSS, KANAKANAGAR,
R.T. NAGAR, BENGALURU-560 032.
...PETITIONER
(BY SRI. JAGADISH .J.R, ADVOCATE)
AND:
SMT. ASHA .K.N,
W/O SHANKAR,
PROPRIETOR OF M/S RAJALAKSHMI,
STEEL AND CEMENT CORPORATION,
NO.24, MEI LAYOUT,
1ST MAIN ROAD, OPP. VIJAYASHREE
Digitally INTERNATIONAL SCHOOL,
signed by HESARAGHATTA MAIN ROAD,
RENUKAMBA
BENGALURU-560 073.
KG
...RESPONDENT
Location: High (BY SRI. M.V. SRIDHAR CHAKRAVARTHI, ADVOCATE)
Court of
Karnataka THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER PASSED BY
THE LXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-
69) BANGALORE VIDE JUDGMENT DATED 25.03.2019 PASED IN
CRL.A.NO.919/2016 PRODUCED AS ANNEXURE-A AND
CONSEQUENTLY SETTING ASIDE THE JUDGMENT OF CONVICTION
PASSED BY THE HON'BLE JUDGE OF THE 15th A.C.M.M.,
BANGALORE IN C.C.NO.24347/2014 DATED 23.06.2016
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NC: 2023:KHC:28685
CRL.RP No. 678 of 2019
PRODUCED AS ANNEXURE-B AND DISMISS THE COMPLAINANT
FILED BY THE RESPONDENT ACQUITTING THE PETITIONER.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the accused/petitioner under Section 397 r/w 401 of Cr.P.C., challenging the judgment of conviction passed by XV ACMM, Bangalore, in CC.No.24347/2014 dated 23.06.2016 and confirmed by LXVIII Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.919/2016 vide judgment dated 25.03.2019.
2. For the sake of convenience, the parties herein 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:
Complainant is the proprietor of M/s. Rajalakshmi Steel and Cement Corporation and accused No.2 is the Managing Director of accused No.1. In the month of April- 2014, accused No.2 approached the complainant seeking -3- NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 supply of steel and cement and accordingly, complainant supplied steel and cement worth of Rs.44,49,304/-. The materials have been supplied under four invoices and after receipt of the materials, accused No.2 has issued cheques for Rs.9,63,644/-, Rs.9,79,700, Rs.12,37,943 and Rs.12,07,017/-. The cheques for a sum of Rs.9,63,644/- and Rs.12,07,700/- dated 29.05.2014 & 17.06.2014 respectively were presented for encashment and other cheques were presented on 13.06.2014. It is asserted that all the cheques were returned unpaid for insufficient of funds with endorsement dated 08.07.2014 and 07.07.2014. The complainant got issued a legal notice on 23.07.2014. But legal notice sent by registered post returned as unclaimed with an endorsement as "intimation delivered". The accused did not repay the said amount.
Hence, complaint came to be filed.
4. On the basis of the complaint, the learned Magistrate has taken cognizance and issued process against the accused. The accused has appeared through -4- NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 his counsel and was enlarged on bail. He has denied the accusation.
5. The complainant was got examined herself as PW1 and placed reliance on 26 documents marked at Exs.P1 to P26. After 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. The case of accused is of total denial. However, he got himself examined as DW1 and placed reliance on Exs.D1 to D7.
6. After having heard 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 Negotiable Instruments Act, 1881, by imposing sentence of fine of Rs.30,00,000/-.
7. Being aggrieved by this judgment of conviction and order of sentence, the accused has preferred the -5- NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 appeal before LXVIII Additional City Civil and Sessions Judge, Bangalore. The learned Sessions Judge after reappreciating the oral and documentary evidence, has dismissed the appeal. Being aggrieved by these concurrent findings, this revision is filed.
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 there are two companies and the accused is not concerned to accused No.1-Company. In two companies, one is the construction company i.e, accused No.1 and another is the granite company which is owned by the wife of accused No.2. He would contend that goods were supplied to granite company which is not a party and he would further contend that material supplied were defective materials which were returned and hence, there is no legally enforceable debt. He would further assert that Exs.D6 & D7 are not disputed and though -6- NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 accused is shown to be the Managing Director, the granite company is not a party and hence, accused No.1 is not liable as goods were supplied to granite company and when accused No.1 cannot be held liable, accused No.2 cannot be held liable. Hence, he disputes the claim. He would contend that both the Courts below have failed to appreciate these material aspects and have erroneously convicted the accused. Hence, he would seek for allowing the revision by setting aside impugned judgment of conviction.
10. Per contra, the learned counsel for the respondent would invite the attention of the Court to the examination-in-chief of the accused wherein, he had admitted that he is managing both the Companies and the transaction is being done on behalf of both the companies and raw materials were utilized. Though there is allegations of defective material that is not certified and since transaction is admitted and when the complainant has failed to establish the defective material, question of -7- NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 he avoiding liability does not arise at all. Hence, he would seek for dismissal of the revision.
11. Having heard the arguments and perusing the records, now the following point would arise for my consideration:
"Whether the Judgment of conviction and order of sentence passed by both courts below are perverse, erroneous and arbitrary so as to call for any interference by this court?"
12. At the outset, the complaint is filed against M/s. Naaz Construction Company as accused No.1 while the revision petitioner/accused No.2 is shown to be Managing Director of group of companies of M/s Naaz Construction Company and M/s. Naaz Granite Trading Company. Though initially there is an attempt to dispute the status of the accused regarding Managing Director of M/s. Naaz Construction Company, however, he during the course of the cross-examination admitted that he is managing the affairs of both the companies as Managing -8- NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 Director. Apart from that, in the appeal before the appellate Court and in the revision before this Court, he described his status as Managing Director of group of companies i.e, M/s. Naaz Construction Company and M/s. Naaz Granite Trading Company. Hence, it is evident that it is the accused who is managing both the companies. Though one company is in the name of his wife, but virtually he is dealing with the said company. Hence, his contention that he is not liable, cannot be accepted.
13. According to the complainant at the instance of accused, cement and steel worth of Rs.44,49,304/- were supplied under four invoices. This supply and placing order is not under dispute. There is no dispute regarding transaction and one contention is regarding his liability which he is not competent to raise in view of his role in both the companies. Further, it is also important to note here that accused has not disputed issuance of cheque under Ex.D1. It is for the accused to explain with cogent -9- NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 evidence as to what compelled him to issue cheque. Later on defense was set up by the accused that the materials issued were defective materials and same were returned. But there is no document forthcoming on behalf of accused to prove that regarding defective material he has immediately intimated the complainant. His reply notice disclose that first time he has raised a defense of defective materials. What prevented him to intimate the complainant regarding defective material immediately is not forthcoming.
14. Even otherwise, it is also borne out from the records that in spite of supply of the goods which claims to be defective, the accused has made payment towards partial due. This payment is not under dispute. If at all defective goods were supplied, what made accused to make payment is also not forth coming. Further, what compelled him in not intimating the bank regarding withholding the cheque. He has not issued any legal notice to the complainant regarding defective goods. Further, the
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NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 goods are cement and steel and what is the defect in the goods is not at all disclosed. He has not even got it certified that the goods are defective goods. There is no dispute of the fact that Rs.16,28,000/- was subsequently paid out of due amount more than Rs.40,00,000/-. Further Rs.13,28,000/- was also paid by RTGS. In view of these aspects, it is for the accused to explain if there were defective goods to the tune of Rs.25,00,000/- as claimed by him, what compelled him to make payment. It is not his assertion that he withheld the payment because of defective goods and no such defense is forthcoming.
15. Admittedly, M/s. Naaz Granite Trading Company is owned by wife of accused No.2 and in the cross-examination, accused also admitted that he is authorized signatory for that firm also. He has admitted that he is also authorized to issue purchase order on behalf of Granite Company also. In Ex.P12 there is nowhere asserted the distinction between M/s. Naaz Granite Trading Company and M/s. Naaz Construction
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NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 Company and in Ex.P12 he has categorically admitted with regard to supply of cement and steel worth of Rs.44,49,304/-. Though he asserts that transaction with M/s. Naaz Granite Trading Company what made him to issue cheque on behalf of M/s. Naaz Construction Company is not at all forthcoming and it is evident that accused handling both the companies and mixing up the transactions in order to avoid liability. Though all along it is alleged that defective goods worth of Rs.25,00,000/- were supplied and taken back, but there is no material evidence to substantiate this aspect. The accused has placed reliance on Exs.D1 and D2 to show that the goods were received back fully, but who has signed at Ex.D2, D1B & D2B is not at all forthcoming and there is no seal that these goods were taken on behalf of the complainant company. The scope of revision is very limited and admittedly, the accused in his reply notice Ex.P12 admitted supply of goods and though he asserts defective goods that is not substantiated. Now he taking inconsistent and contrary stands. His evidence does not
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NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 assist him in any way and he cannot be permitted to misuse status of the two companies as per his convenience to defraud/cheat the suppliers.
16. Both the Courts below have appreciated oral and documentary evidence in this regard in detail and have rightly convicted the accused. No illegality or infirmity is found with the judgment of conviction and order of sentence. Even it is also evident that in spite of direction by this Court to deposit certain amount while suspending the sentence, accused has not deposited a single pie before this Court which disclose that he has no respect to the order of the Court. He did not even seek modification of the said order and when the discretion under Section 149 of N.I. Act is exercised, the accused is bound to comply the same. But the manner in which the accused is prosecuting this matter and dealing in his business transactions clearly establish that he does not respect professional ethics. These aspects have been appreciated by the trial Court and appellate court and
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NC: 2023:KHC:28685 CRL.RP No. 678 of 2019 have rightly convicted the accused. No illegality or infirmity is found with the judgment of conviction and order of sentence passed by both the Courts below.
17. Looking to these facts and circumstances, the point under consideration is answered in the negative and as such, revision petition fails and accordingly, I proceed to pass the following:
ORDER The revision stands dismissed.
Sd/-
JUDGE DS List No.: 1 Sl No.: 7