Karnataka High Court
Sri Kuthar Ahmed Bava vs S K District Co Op Fish Marketing on 2 September, 2009
GURT GF RARNATAKA HIGH COURT OF KARNATAKA HIGH COUE fe, sat ATLA USE EUS A, UE aS EE Ae gl Sha Saf TDR NP i AT A fa eel fe fat at a he RARNATA A MiGH ri Rm SRE ge S/o B! Kodya, 47 years, R/ at Avtaver, Mangalo in THE HIGH COURT OF KARNATAERA, BAN GALORE DATED THIS THE 2.¢ DAY OF SEPTEMBER, 2009 THE HON BLE MR. JUSTICE 4S. PAC HHAPURE, ON Ke. ' iss 08 Sri Ruther Ahmed Bas S/io Pathurhi Beary, Rjat Kuthat Majalthots, Oe Post Murra. Vig Permennur, Mangalore, -- PETITIONER (By Sri P. 'Kartnskat, adv). ae SK, District Con "oF. Fish 1 Marketing. Federation I ita; PLB. No.1 14, Mrudihithha, Mangalo ste M.D, Prasad, RESPONDENT ; tBy Sri B LY. 'Krishna Sanmathi Asete.} . Griminal Revision Petinon is fled urder Sec.397, pw Sec. 401 CrP.C, praying to set aside the Judgment ~ atu order dated 25/4/2008 passed by the IIT Addl Sw. _ U.K. Mangalore in Crl.A. No.292/07, thereby co: ang vdgment paseed by the JU.MEF.C. V Court Mangalore. adrmseion this day, the Court race t the folto 0 ae a Gh COUR 5 jnot Teel Sigd HB et A TGR EIA BE EB respondent ia the conrplainant who Bled the comp before the trial Court a St SRE LA OTA, PE Oe a ert LR Gr RADA PUGe LIU OP RMA Ca és o BR Though the matter poste] today fiir admiseion with the consent of the o counsel it is % ' eh up for final . hearing. | 2. The petitioner has } challenged bh bis esemite ari sentence for the offence pune shable under.Sec.138 of N.LAct (hereinmafier oat ae Ast' for short], ofia trial held by the IMEC, Manga lore" and corfirmed mn appeal A " T. he: facts "relevant for the purpose of this PeVvIB1O FE Bre ne wonder oe L will be referring to the parties as per the rari : bets ré-the vial Court for the purposs cf convenience. 'The petitioner herein is the accused, whereas cin ae ging that the accused owed a sum of Ke.46,956.70 and to discharge the loan amount the accused weued a cheque dated 20/6/2002 for a gum. of Rs.46,656.70 in favour of the complainant and assured that be has euficient Sinde in his acooun SEE ES ALLELES ILLES LIEGE NEESER SEE TREES TAUNTS GPE GO TURIN OLI, DG COURT OF KARNATARA HIGH COURT OF KARNATAKA HIGH COUR The complainant presented the cheque through the banker, which was returned with an endorsemertt 'of the said notice was not claimed by: he accused. He did - net comely the notice ard im 'the circumstance: ee the compiainant appr cached the 'trial Court + to tale action under Sec. 138 of the. Rot. 4. The 'rial Court took | cognizance, process was mee, acctaed ay pened beiore the trial Court aru afte: recording # the plea 'the complainant Wee examined an PWI and in his evidence the cocumentse Exe. P-1 te Pel were "taarked. The siatemernt of the accused was - recorded, under Sec. S313 of Cr.P.C. He has taken the _ defence of "total derual, He examined D.Ws. 1 and 2 and got rarked Ex. D-1 to Ex. D-S in their evidence. The wial Court on appreciation of the material on record im convicted the accused for the offence pursheble urder sec.136 of the N.LAct and ordered to pay fine of Re.00,000/- m default to underge S.I. for six moriths. Aggrieved by the conviction and sentence the accused approached Seesions Court and the appeal came ve 2B ALR Pe LAU 4 & A Poe WURE OF KARMAL ccs bP tSR EA AURIS A, ee La We MARA ker ES) 2 RR Pe PRES ER RS RP Sue ie Bs dismissed on merits. Aggrieved by the concurrent findinge of the corwiction, the petitioner has approached this Court in revision. oe 5, | have heard the leerred counsel forthe petitioner and also the reapondent. The point that ari i668 "8 for my AD omit ideration are: fl) Whether the conviction of the pentioner for the offence punishable vwnder Sec.138 of the Act and dhe senienes thereon as ordered by _the trial Court and c confirmed in the appenl is 7 Megat ark perverse? . (Qh Whit ord 6. Tf ie the votitention of the learned counsel for Setitioner th that the olank cheque was giver as a security atthe dine of agreemert-Ex.D-5 and that there is a gondition. a the said agreement that the transactions between the parties shall not exceed Re 2/- winch a securty deposit was giver. ani m the art stances he submite that the complain misused the blank cheque given and thougn there was no transaction emeeeding the amount of Rs.2/- lakhs Clammant hee misuse the cheque whach wae giver as 4 6 > o o x & =
parties and also the documents admitted im evid ao A UT PTE et SG URE OF RNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNAT Salk security. On these grounds he has sought for. setting aswie the conviction are senterice. . Per contra, learned cm nisé! fe rr th | 12 vespondent = eubmite that the accused has. a dmnitted "the Hability under letter Ex.P-7 and he isgned chegive ExP-l for the amourit of Rs.46,956:76 which was the amount due as per Ex.D-7, and though the riotice wae issued alter the return of the heque for insufficient funds the accused di mot comply | the detvand and | subrtite that there is consistent | 'cogent and acceptable material for the offence. punishabte tinder Sec. 138 of the Act and in view of thee concurrent findirgs of the conviction, the
- petitioner nas not made out any such grourm to warrant 7 interference, 'S, | have scrutinized the evidence led by the The fact that there ie an agreement between the parti as per Ex.D-5 fer participation in the auction of feh and sea products is not in dispute. As per the conditions between the parties, it is stated that the buyer's lout af e Sg Gu) OF RARMATARA ME BM COMP, CO= RARIMARIGAGA POMPE LM WP REP PEERY Ge PA EGE PRR RPG RUS Stl Cok ERE GET RPE EERE ORONO IRR E LS hae AF OR oh purchasing fish from the seller shall not exceed _ the security deposit anmuunt unler ary cifouinstarsces. Relying on this clause, i is the converition of the - counsel for the petitioner that, the am mnt clained is beyorkl the security "deposit - and ot retefore the complainant has mc authority to claim the said amount. Even assuming for the time being, that there ia such a condition and. trans. action is enters red into for the ammount 3 exoeeding L ime. die "lakhs, Ide not - think that accused can take ine benefit and, seek the forfeiture of the sumount for which he leds 16 to the complainant. So If is relevant to note under Ex.P-7 dated 24/7/02 the -accueed has given letter to the oe complainant 'atating thet there ia an amount due to the ; extent at FA6,956.7 and that on 30/6/2002 he has
- | issued' the cheque Ex.P-1 and the cheque waa returned a with an endorsement of insufficient furds and therefore he requested that some time may be granted to him for 1g payment instead of filing criminal case. This letter Ex.P-7 clearly establishes the fact that an amount 956.70 wes due and thet the accused had va ASU E UP ROME EAL Ig hg LAO ET C2 RVARINAT ARS INUGPE COURT GP QUARN ATARI STG COURT GP (ARNATARA HIGH COURT OF KARNATAKA FH COURT issued the cheque Ex.P-1 towards payment of the said debt or hability. When once the debt or the fintiiey 8 the payment of the said debi. and" liability; presumption arises under" "Bee. 129 of the Act The accused in the evidence of 1. Ws. L and 2 2 docyinente D1 to D-S hae not made 'out any stich. ground to rebut the presumption. The Courts: below have taken into Ee cormideration & Hthe evidenve: Ae aad by the parties and on proper appreciation a of. the material on record have come to the right coneluaion,. _
10. This is a revision petition and this Court has _ Rented. powers, uniess the petitioner makes out such " grounds to hold that there is ile ality or perversity in gf e E wt be re-aporeciated. in the order the evidence led canr . "that view of the matter, I am of the opinion that there is no merit, so far as conviction for the offence punishable under Sec. 138 of the Act is concerned. . So far as compensation is concerned, the trial Ceurt awarded Fs.60,000/- but takimg ito Ke B i .
z } I .
2a Ea = 2 # 5 Ea a "Sy OF MEM ATAKA Mitesh COURT OF RARMALARA FiMort LA0UR I WP RMR Peeci eam ed Pere ey consideration the condition of the petitioner for which he hae been placed and discharged the lisbility: be has to pay the amount which is due, | think the interest of. justice would be met if the compensation cs reduced to Rs 55 ,000/ Hence [. onawer_ the. point partly"
affirmative and partly negative, and proceed to pass the following orde Petition is 8 i a lowed in in part affirming the conviction be pmoon of compensation pave ble is 'reduc el tol RS. mae ge 20 (H¥~ ard in default of the payment ofe con caper the petitioner shall undergo Sf tor six mont 18.
Sdfe_ Judge ped bug