Karnataka High Court
Mr K L Agarwal vs M/S Paramount Solutions on 7 February, 2017
Equivalent citations: 2017 (2) AKR 12
Author: R.B Budihal
Bench: R.B Budihal.
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL REVISION PETITION NO.1482/2010
BETWEEN:
Mr. K.L. Agarwal
Aged about 63 years
The then proprietor
Of M/s. Nu-Horizon
Data Technologies
2nd Floor, 21
Amar-Jyothi Layout
3rd Main, Sanjaynagar
Bangalore-560 094. .. PETITIONER
(By Sri R Nagendra Naik, Adv.)
AND:
M/s Paramount Solutions
Rep. by Managing Partner
Mr. Banwari Lal
No.87, H.B. Samaja Road
Gandhi Bazar
Bangalore. .. RESPONDENT
(By Sri V Ramesha Babu, Adv.)
This Criminal Revision Petition is filed under
Section 397 CR.P.C praying to set aside the judgment
2
dated 17.09.2010 passed by the P.O., FTC-VII,
Bangalore in Crl.A.No.1192/2007 and judgment of
conviction dated 21.09.2007 passed by the XXII ACMM
and XXIV ASCJ, Bangalore in C.C.NO.14589/2003 and
acquit the petitioner.
This Criminal Revision Petition having been heard
and reserved for orders, coming on for pronouncement
of order this day, the Court made the following:
ORDER
This revision petition is preferred challenging the judgment and order dated 21.9.2007 passed by the XXII ACMM Court, Bengaluru city in C.C.No.14589/2003 and also the judgment and order dated 17.9.2010 passed by the City Fast Track (Sessions) Judge, Bengaluru city in Crl.A.No.1192/2007.
By its judgment and order, the trial Court has convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him with a fine amount of Rs.14,50,000/- in default, to undergo simple imprisonment for a period of 24 months. When the accused challenged the said order before the first appellate Court, the appellate Court also after considering the merits of the appeal, 3 dismissed the appeal confirming the judgment and order of conviction passed by the trial Court. Being aggrieved by the same and challenging the legality and correctness of the judgments of the Courts below, the revision petitioner is before this Court.
2. Brief facts leading to filing of the case by the complainant before the trial Court is that the complainant is working as a franchisee for the accused with regard to the fee for franchise work done. The accused has been avoiding and delaying the payments in respect of the amount due from the accused to an extent of Rs.9,66,000/-. The accused signed and issued three cheques bearing No.120073 dated 15.2.2003 for Rs.3,22,400/- of Vijaya Bank, Sanjaynagar, cheque No.807275 dated 20.4.2003 for Rs.3,22,200/- of Canara Bank, Sheshadripuram Branch, Bengaluru and cheque No.807272 dated 20.4.2003 for Rs.3,22,200/- of Canara Bank, Seshadripuram Branch, Bengaluru. Complainant presented the above mentioned three 4 cheques on 21.4.2003 through Shree Charan Co- operative Bank Ltd., Gandhibazar, Bengaluru and they were dishonoured under the endorsements on 22.4.2003 for the reason, payment stopped by the drawer. Thereafter, complainant got issued the legal notice dated 3.5.2003 by RPAD and UCP. The notices were duly served on the accused on 9.5.2003. The accused issued reply on 22.5.2003 admitting the above mentioned dues and issuance of three cheques for clearance of the dues. Since the accused failed to comply with the demand notice dated 3.5.2003, complaint came to be filed.
3. Heard the arguments of learned counsel for the revision petitioner-accused and also the learned counsel appearing for the respondent-complainant.
4. Learned counsel for the petitioner during the course of his arguments submitted that the accused has not at all issued the cheques to the complainant for the 5 purpose as stated by the complainant. The cheques were issued as per the terms and conditions in the memorandum of understanding entered into between the respondent and the petitioner. Against the terms and conditions of the memorandum of understanding, the respondent herein withdrew the bank guarantee amount of Rs.5,40,000/-. He has also submitted that in the cross-examination complainant has admitted that there is a memorandum of understanding between the accused and the complainant and that he has received the data for six months and he has not processed the data as per the conditions of the memorandum of understanding and he denies that data processed by him had been rejected by the principal employer and in this regard, the revision petitioner-accused has written letter to the complainant. He has further submitted that the trial Court as well as the first appellate Court have not at all discussed in detail as to which cheque is issued for bank guarantee and which is issued towards the liability and have wrongly come to the conclusion 6 that complainant has proved his case to the satisfaction of the Court. Accordingly, it is submitted that the judgments and orders of the Courts below are not legal and sustainable in law and submitted to allow the appeal and to set aside the judgments and orders of the courts below.
5. Per-contra, learned counsel appearing for the respondent-complainant during the course of his arguments submitted that the relationship between the complainant-firm and the accused is admitted. Further, as submitted by the revision petitioner when the memorandum of understanding itself has been admitted, the question of producing such document before the Court does not arise at all. He has also submitted that the signatures on the cheques in question are of the petitioner and there is dishonour of three cheques presented for encashment. The revision petitioner has not placed any acceptable evidence before the trial Court to rebut the presumption raised in favour 7 of the complainant under Sections 118 and 139 of the Negotiable Instruments Act. He has also submitted that the trial Court as well as the first appellate Court have properly considered and discussed about each and every material produced and have rightly come to the conclusion in holding the petitioner guilty for the offence punishable under Section 138 of the Negotiable Instruments Act. He has submitted that there are concurrent findings of the Courts below so far as the factual aspects are concerned and as such, the revision petitioner cannot be permitted to argue again on the said aspects. Accordingly, he has submitted that there is no merit in the revision petition and the same is liable to be dismissed.
6. I have perused the grounds urged in the revision petition, the evidence adduced by the parties before the trial Court, the concurrent findings of the Courts below and the submissions made by the learned counsel for the parties in this revision petition. 8
7. The case of the respondent-complainant is that there was a memorandum of understanding between the complainant and the accused, which is produced as per Ex.P14 and as the accused has not paid the franchisee money to the complainant as per the terms and conditions of the memorandum of understanding, the accused issued three cheques as per Exs.P2, P3 and P4, and when presented for encashment, were dishonoured for insufficient funds. The contention of the petitioner-accused is that the complainant encashed the bank guarantee of Rs.5,40,000/-, which he was not authorized to do so and is against the terms and conditions of the memorandum of understanding and this aspect is not looked into by the Courts below.
8. The accused in his evidence has admitted before the trial Court about issuance of cheques in favour of the complainant-company thereby, admitting his signatures on the cheques. The complainant has 9 produced the necessary material in this regard before the trial Court as per Exs.P8 to P13. Though it is contended by the learned counsel for the revision petitioner-accused that the said memorandum of understanding was not produced by the complainant, but the documents produced before the trial Court clearly shows that the memorandum of understanding was produced before the trial Court as per Ex.P14. When issuance of cheques has been admitted by the accused in his evidence, the trial Court has observed that the accused has to rebut the legal presumption available under Sections 118 and 139 of the Negotiable Instruments Act and that accused has not placed acceptable evidence to rebut the presumption.
9. D.W.1-accused in his deposition at page No.10 has admitted that when the cheques issued by him were presented to the bank, he was not having sufficient balance in his account and that he has issued stop payment instruction to the bank. He further deposed 10 that if the data is rejected continuously for two months, new assignment has to be issued. He has not produced the documents before the Court about rejection of the data and his application for re-processing the data. He has admitted the letter at Ex.P15 issued from their institution to the complainant. He has also admitted that cheque issued by him was dishonoured and he issued the letter requesting to represent the same as per Ex.P17. He has also admitted one of the cheques in question in this case when re-presented as per the instructions of the accused, it was dishonoured. He has also admitted that Ex.P13 was prepared according to his instructions given to his advocate and Ex.D19 is the letter issued from their company to the complainant- company. It is also admitted by the accused that the amount mentioned in Exs.P2, P3 and P4 is not paid to the complainant-company. Looking to the evidence of D.W.1-accused, it is clear that he has admitted the transaction between the accused and the complainant- company and also regarding the cheques issued as per 11 Exs.P2, P3 and P4 towards the outstanding amount to the complainant-company.
10. So far as encashment of the bank guarantee of Rs.5,40,000/- by the complainant-company is concerned, material placed on record shows that complainant-company was authorized to encash the bank guarantee if there is breach of the terms and conditions of the memorandum of understanding Ex.P14, by the accused-company. Even though it was contended by the learned counsel for the revision petitioner-accused that complaint has been lodged in this regard as against the complainant-company, no material is placed in this regard. All these aspects were extensively considered by the trial Court by referring to the oral as well as documentary evidence on record.
11. The first appellate Court also has re- appreciated the materials on record and also the oral evidence of the parties. In paragraph No.10 of its 12 judgment it has observed that the cross-examination part of the accused discloses that as per Ex.P14, he has to pay the franchisee money to the complainant and this is a condition clause in Ex.P14, the memorandum of understanding. As per Ex.P14, every month accused has to give one assignment, if not, complainant- company is authorized to encash the bank guarantee. It is further observed that since the accused has not given the data within a month, complainant company has encashed the bank guarantee. It is also observed that the accused has admitted that he has not paid money as mentioned in Exs.P2, P3 and P4, the cheques in question. The first appellate Court also has considered the entire aspect of the matter in detail and ultimately, dismissed the appeal confirming the judgment and order of the trial Court.
12. Perusing the judgments of the Courts below, I am of the opinion that no illegality has been committed by the Courts below in coming to the conclusion and 13 the first appellate Court is the last Court to consider in detail and re-appreciate the entire factual aspects of the matter. Unless and until it is shown by the revision petitioner that there is patent illegality in the judgments rendered by the Courts below, scope of this Court in revision being limited, it cannot interfere into the judgments and orders of the Courts below since no justifiable and valid grounds are made out to interfere into the judgments of the Courts below either to modify or to set aside the impugned orders passed.
13.The revision petition fails and the same is hereby rejected.
Sd/-
JUDGE bkp