Karnataka High Court
R Ramachandrappa S/O Late P Ramaiah vs Sri Rathanlal S/O Dhulaji on 26 March, 2010
1 C1'I.RP 467/07
IN 'i'HI~3 H10}--I COURT OF i<.ARNA'i'A}{A AT i3ANC.A1,0R£«:
DATED Ti---IIS 'i'Hi~Z 263'?" mw 01? MARCH 2010
BEFORE'.
me. HONBLE MR.JUS'1'iCE A.S.PACIiHAi%U.I§E:.A.:" 0
CRIMINAL REVISION PE'I'i'I'IC;.)'N N_Q;46'7_T/2'Q'0i%'-- 'V,
BETWEEN
R. Ramaehandrappa.
S/0. Late P. Ramaiah,
Aged about 50 years. .
R/at No.77. Siddanna Lane, _ -_ if 1 A "
Cubboripei, Bangalore W 500 0.02. .A,'vvi?I§_.i'I'FIONER/S
[By Sri. SOH1aSui3Ci';;1'i'EZi.Di)§hii5&:VSI"i]3AiVé:$. M.V.. ACIVS.)
AND
Sri. Ratha"n£aE,"eA..VeT. 4'
5/0. Dhu113ji,._ -- 0 i ,
Aged ab0ui.,52«.yea1--'s,*.
Proprietor. v
Sri Maiialakshhai Siivksh,
No.12. igi/iI")}?.i\/i21:'i<'eE.'e, '
'B_e1,iap'p'é. i;;c_L1Vr1(».._,_ .....
V" ' ._ C .T.. S£i*eei." '.;r()_s'a_.
VBAE1'I';.gé'ii0.i'x€'V-.7 Q02. RESPONDENT/S
[By.'S:9i';i«M.N.'.VNjeh'1'u Associaies. Advs.)
=I=>i=*=#*
'l'hi..s=C;1'iminal Revision Petition is fiied under Section 397
Cr.P.C praying to set aside the orders passed by the
"}iG13Vb1_e_A-Jtidge, Fast Track Ceurtwil. Bangaiore Rural Disirici. in
'-C?'rE.A,No. I00/2006. dateci 20.2.2007 and to confirm the orders.
f0"'*ju_§igh1eni and Corivietion of the ii Addl. Chief Judicial
"A/iagisi',1*2ite. Bangalore. in C.C.i\I0. E 181/2003. dated 30.8.06.
2 Cri.RP 467/O7
This Crimiiiai Revision Petition lieiving beer) heard and
reserved. coming on for 1)I'O11(){.i1'1(T€IT1("3I1t of orders. this day, ihe
Court p1'o11ou1'1(:ed the following:
ORDER
The gaetitionei' has challenged the judg1iieii1.__--3§iio'A the court beiow allowing the appeahli convictiori of the accused for the o'£f4[en:{:e«.. Section 138 of the Negotiabie*iiist1'uriie-{its called as 'the Act') so far the P1 and 13.15 are coneerneci and eiside._'the.tconviction of the aeeusedwresporident_ so I'a1f... *i11e._ se!E7'¥dvifaiw'1j---- '(':1*1eques per Exhibits 13.2 to PilztijoatiiciiiaoéiIj,?i1'1g'tE3e' 's*e~:1i."ence passed by the ieamed Addl, _CiV1'ie:if J Vtid.iciai,i.»'tV1;1gis_t.rate, Baiigalore.
2. Thei taets i'eiev;i'r:.t for the pu1'1_)ose of this revision V petitioii 2-'ireas udder:
A '.vibEi.A¢be' i"eferririg to the: parties as per their rank before U:1'.("-.'§V'iV".,i_E11 ('f().{;i:fit. i7oVi'vv"i:l1e pt11'p()se of c:o1ive1'iieI1(:e. The petitioner _i'iereiii"---- i.s.--__"tl'1e""(.:omplai1'1an.t whereas {he 1'6-SpC)fld€I11. is the . 4''~~i=:t€:C.LiVsed. "file petitioner filed 3. complaint. under Section 200 of P;C--.5i"or he (iffermes gmnishabie under Sections 188 and 142 ii"=of...ii\iegoi,1e1ble 1ns1.1~umeni.s 2101.. The (',0I1'1§)1E11l'1E11'1t is the " 11'1an.ui"act.u1'e1' of silk sarees and dress inettcrials having looms 3 Crl.RP 467 /07 at Cubb01'1pet._ Bangaiore. He is supplying the said 1naE',.e:'iais to the accused. On the suppiy of materiais, the E'}.CC[lS€C1HL1Vi3.C'éd.LO issue. p0st--dated cheques towards the payment ot""ti1eVV'~g_c-éd__s supptied and the compiainant used to encash the. s Accordingly. in the month of Aihfii, ati!;iAA'Jti1)e the compiainant had suppiieti._th.e silk Vsarees VV3,:I;1'L""r~~~'<:i:I'€SS" V materials worth Rs.5.33.2_4iO/- .j,Qn_1;ec7eip1. of the said materiais the Ch€C1U€S '35 P31"
Exhibits 13.1 to P, Qt' difféi'€.I1i:: the payment of goods suppiie_d,,. due for payment the for payment of the amount, »btii_efih-said-i cheques and the accused uttinfi'orih'=--hi.s rmzm"c.ia: ."--::ohtein re uested not to resent P «%= .. . , A .9. C1 5' them fQi"Vi'eaiisatio1f1;VV Thcugh the compiainant gave sufficient the _a:7_cL1sed to make paymerii. the accused on amount of Rs2000/-- to the complainant and r"n.enti0rie€i" the same on the delivery Voucher and signed sameand requested for some more time. Despite having _g'§ir'§;3i1~TEi"tlCi'1 more time, the accused failed to pay the remaining ' ~~?*.»H1.'C:JE1I]L W 4 Crl .RP 45? /07 111 these ciretm'1st',amt:es. the aecttsed issued a legal notice dated l4.lO.2000 to the complainant stating that i1'el'~lias issued the post~dated cheques [or a total Rs.5,f2,5.000/~ 1.0 the complainant for supply V' dress materials and called upon t.he =;.:om1__:lAlai-;1a_nt1'to.__.s'ui'i:elf1de1:' all the said post~dated clieqt.aes_ to The.."'.ttomplair1amlF. replied the said notice. stating to pay Rs.5. 33.240/ W towards paynient«" 0.1' goods supplied. Thereafter. the accused and Rs. 10.000/--
and gave an amount of Rs.3,23,240/ii the accused lodged a false Police with an ulterior motive the amount which he
was entitled '"'~to.' ._l--: dis did these circumstances that the 'VV'EiQ1l'ip'l'&l.ll1;i~l'}.i aiso i'iled"----a--«eomgaiaiut to the police for the eriniinai "acts ctamfaitteld loythe accused.
'""Whe'h' the accused despite the demand failed to make the payment the complainant having no other alternative the cheques bearing Nos.i270'"/9 and 127080 both 'ttdated 20.7.2000 {or Rs.50.000/-- each, through the Textile Co- "loperat.ive E-Bank, Bangalore. 011 10. E.200i the bank returned (J1 C'.',r1.R.1'3 467/()7 the said cheques with an endorsehieni. of 'funds i11sL'ii"ficieni.'. Similariy. he presented the other 13 cheques €I}LEH1€f§1U§d'._iF1 para--i5 of the cornpiaim and the said cheques with an endorsement of insufficiersi funds. It these" ' circumstances that the complaiiianiflilissued. dated 19.1.2001 1.0 the Accuseidawhichiwas accused vide notice dated 25. 1 As V the accused did not i'e1;)._¢/i:$';..,,;heQ."2iriic1iijf3.§V~'».fi@.$piieVihehvvvderiiand. compkainant submitted Magistrate on these facts reques'dr1_g* ioizialge the accused for the offence -138 of the Negotiable 1nstrun1e.r1is'Vi?X(rri.. cogriiiaiice. In issued accused appeared before. ijhe i'rial4i;QLi1"1.v.. T'Th'e pica was recorded and ihei'eafi.e1' the .ccmp'}va.iha,i1.£. was exariiihed as P.W.i. a witness P.W.2. and in documems Exhibits 13.1 to P.3"7{a) were markeéd. The"i--siatemeni of the accused was recorded under .«.._.'€-eciicn "313 of Cr.P.C. and thereafter the accused was i e:~i_a§1:ih'ed as D.W.1. a witness D.W.2 and in the evidence got
-"1:11a1j%ked the docmiienis the Exhibits Dml £0 [)-3. The trial Court ;'on .':iI.)f)I"€('.iE1ti.O£l of the material on record held the &1(3(TL1 6 - C1'l.RP467/G7 a guilty for the oilence under Section 138 of the Negotiable Instruments Act and sentenced to pay fine of Rs.i<).2Q}'QCsQ~/W and in default to undergo simple imprisonment l"o;"one~ He ordered to pay Rs.lO lakhs as Con1pe_nsatioVn*i.to._ the"
complainant.
3. Aggr'ieved by the coiiyietiori and the the * V accused approached the S€.3SSiOi'iAS~~-(::V:§.)"L1'i"I"'-iii (iri';a.:NAo._}€OO/ 2006 and the learned Sessions Counsel for both the parties.4_allowed"VVth"e and so far as Exhibits P.1 he affirmed the convictiovn to pay fine of R2 lakhs. in fine to undergo simple imprisonnieni ifor Vsix"'ri'1cant*:hs. and out of the fine amount. o'rdere.t§l'toll;)ay the sconlplainant an ainotmt of Rs. 1.50.000/~ as coriipyerisattioit.W50 far as the cheques at Exhibits P2 to £3.14 (lf'3_ learned Sessions Judge set aside the V _ convicf;iori"andiheid him not guilty for the said offence so far as cheques at Exhibits $3.2 to P. 14 are 'concerned. ta 7 (k§RP4fi7/O7
4. Aggrieved by the judgment and order of the Sessions Judge the petitioner. i.e.. the Complairaagjt._has approached this court in revision.
5. I have heard the learned QQ.Li1f1_se1 for"t'i'ie_':pet'iti'or1evr and also the respondent. The poihi t'ha.t.:' i7or:Vm'ay_' Consideration is:
"Whether the a(équitta_1_TVof_the vide the judgement and order "tat-.eVa~1.2o.2.2oo7 in Cri.A.ioo/2006 so .e_far'i--3.3" thei'*{:_'h.eqi_1es at Exhibits 9.2' to ,':>14»ar'e' 'oionroiezfrzted 'is«.:i:i1»§-gai and per_VeI_Se,?'t.3'
6. "it -i$V'Vihe"C:§333te!1t'i{)11 oi"*the': learned Counsel for the petitioner:;v--._t1'ia't as Exhibits 19.2 to 13.14 are concerned. they were isstied' by the amused and though the
-v..chequ;~e-$3 were the ;S'E3U3_tf_i}€(§t1€S the word "or bearer" mentioned V':i_n~ ithe sa'id>._«oheques was not struck off and in the circ=iirris'ta1ice_stheiCounsel. submits that the said cheques were
-also both "self' and 'or the bearer' and therefore he submits that the" Cleoaurtvvwbelow committed an error and illegality in allowing and granting aoquittai to the respondent in respect. ~ cheques at Exhibits P2 to R14. He further submits that "the court below having held in favour of the petitioner for the b<'__._ 5'5 Ci'§.RP 467/U7 cheques at Exhibits P.l and P15 could have granted the relief and conviction of the respondent even so far as ihe cheq1[_i:e'sT at Exhibits P2 io P. 14. He has also relied upon the the superior courts and the same will be considered- stage. l l
7. Per contra. it'. is tne"'-czonterililono Counsel for the respondent thai to the supply of sarees and been proved by leading sufficient m:3terial:,or;~ 'said cheques at Exhibits 13.2 were there was no question the circumstances. the learned the lower appellate court has taken 3. just'5--de~::isio"n i1":'1'eje'e_1.ing the claim of the petitioner so _ far asljlxhiibits P12: _toP. 14 are concerned. the iearned counsel 7,h2.is,alsn reiied..._upon some decision and the same will be i'e'l'err'edilAt'o» stage.
.l"li;ave perused the records, the evidence led by the "parties and the documents admitted in the evidence. It is no ._j_:lo..1bi. "true ihat the eorriplainani has made an allegation in the ~«.4:'c'oi'r1plaim1n1. that. he had supplied the sarees and other goods bé 9 Crl.RP 457/07 and towards the payment of the price the accused had issued 15 cheques a Exhibits R} to P.i5. but as could be the documents produced, its relevant. to note that _ to R15 are the cheques admittedly signed l' the name ol' the cornplainant' or .' remaining cheques at ExhibitsV;P_.'_2 pertaining to the person to pay the".arnoimt'.l'ii'..V.s:"1ii'enti:oned as 'self and that the word .lifi:o.t'.beeriV"Astruck off. Particularly' on all these cheqoes To P.14 there is a signature of of the cheques.
Exhibit P. £6 issued by the bank returningtheV(th:evo_t1es§yt'c on the ground of inst,1l"i'icieni.v"--E'Lin.ds. the notice issued by the accused to the"cornplainasn'wherein the accused has made a f(:~!aim iihlaiEthe._com;5lai:-iant has assured to deliver the goods and .i.ri }"3\tif"S1.iEi.Ifi"1C{§!VO'l' these assurances he had issued different cheqtiesto of Rs.5.25,000/-- and as the goods have not been ..d"ei.ivered he had requested to return the cheques P32 is the notice issued by the (rornplailiant. to the accused denying the allegations made in the notice ai . ' P.3'l. Exhibit P33 is the notice issued after the ;'¢ 10 Cr1.RP 467/07 of the cheques for 'i1"1st1l'fi.cieI1t funds' whereas the exhibit R34 is the reply. The cor1'1plain21nt has also produced at P35 and £3.36 said to be the invoices dated 12.6.2000 which are the pieces of the page in perusal of the Exhibits P35 and been addressed to M/s. Malqalaygnti mention of the amount payabEelllét»1T1Td' it the Exhibit 13.35 as "Appurwa is '}r1l"}He;it;ljof1ed as "Appurwa 50". A perusal not contain all that informat1jo'r;:««ttfl1§ch:=A__requt~res«.:to0ll--Sl1o.\r§l.fthat these are the invoices.
9. l'-.\low_ -aseou,ldabe._s'ee1': iron: the :;1lEegaEi.or1s in the complaint, inrtheltnhtonth ofApr§1, May and June 2000 the,Cor11p'Eat_h2tl1tsupplied some sarees and dress E't?§f'ort:lr;«._._Rs.5,000,240/-- and that after the delivery of etxedues were issued. So t.o prove that in these 3 r11or1t__hsV_o'f thlelyear 2000 the complainant. had delivered the sare.es_.:'and other dress materials worth Rs.5.33.2!-l0/-- ¢x:;ep.:~1.t2x.P.3s and 13.36 he hashot produced any other "".doe_tln1e11£,s nm(:h less the bills, the E1C.C}()UI1E books. delivery ...el121l1ans. etc. The nomproduetion of these d()eL1n1 3 1 CYLRP 467/O7 pertaining to the deiivery of the siik sarees and dress n1at,e1*iais despite the defence of the accused that the goods \ve1'efn"e.ve1' delivered to him assumes importance. }38.1'1'iCt11£1l'iy the. at the first instance even before the presentation..ot;"the Issued the legak notice at Exhibit I§L:§3'1"«1a'a:¢c1.;«'igtA_o:.V2'o0o"*'. stating that he had issued different Rs.5.25.000/«~ on the assurance goodsVwitIv_:be";§jeVlive1'ed and that the compiainah.t.._did «shots.nperfhrrn hts"»proh1ise to deliver the goods and in for the return of the chequggs. defence of the accused that in addition he Issued 21 vveis"'incun1ber1t. on the part of the COIT1}L):lv'E'ii'I1"EtI1'LV document 1'elattng to the transaction ot°"sa1e' of sarees'~~--és.iiing upon the accused to prove fthvat such'-9.--«transaction. On this aspect. of the matter." *-Counsel for the respondent relied upon the deci.sion<>£' trfe;_é}pex Court reported m AIR 2009 s.(:. 1518 ' (M/s. Iiulunsisr Exports Vs. M/s. Sharma Carpets). The apex I c.ot11;t;'tdts.ktng into corlsidemtton the presumption that arises _ '--u--'hderdE">Aect.ion 139 of the Act held. that the rebuttal need not be . V 14"}:3V..':/:V'I'>'rooi" of defence beyond reasonable doubt. It held that. ifl 12 C1'l.RP 467/O7 trial under Section 138 ofN'eg;(>t.i21ble Instrunients;-:. Act there are two options to the accused: he can either show consideration and the debt did not exist. or particular circumstances of the ease the non--e:<i--s.t.eiieel'~:of«.theit consideration and debt is so p1*obab=le .l ought to suppose that no COI'1Sl(i(i1T§ltlOE"iV"3_l:'1.Cl "to rebut. the statutoiy presumptions €}(lft§6Ct€d to prove his deferlee beyond isvuexlpected of the complainant in a held that when the <:omplaii1ah:tf.s tl'1at.ll':1friee*..._£tec?used purchased carpets from' issued for discharge of the sate the defence was that there was sale no liability existed. The Apex Court in the E1lIl)'3€IV1C€V(}.l'. th_el':3'ame having not been proved. by 'examiiiiilig the official 'ovt'7--'the sales tax department" to Show that hosvale=.was"shoivh in the repayment bill produced by the ' " .. V eompiaiharit. ii€jit'ltaie1' bearing his signature or signature of the afleeused, the. non-production of the accounts books or stock '~.V:1'tegisltelr';«,'held that the Cheques were not issued ford the dischaitge of the liability. So also the Couhsei has also relied V "o§§"iti'1e decision of the Apex Court in 2003(1) sec (Criminal) 13 Cri.RP 487/07' 200 (K. Prakashan Vs. P.K. Surendaran). wherein in Apex Court has reiterated the principie that burden of proof lyingcorl the accused required to be discharged by prepO_1f§der.ar1--ee5 probability and not by proving beyond reasonab.1~e----déoiuybtfiii «
10. So now considering the tatd Apex Court. so far as the proot'--of~v..transaetionVAisAicofieerhed. "
when the accused has detlied it-her."trah.sacti'oAr§'-it.s€¥lit it was necessary ford the contplairratati'-toi.,p:'i'odtt§;e:ally those account books to prove thatihe lsarees and dress materials to _extenif\-vtV'Vrt{{é'4ar11ot.1nt mentioned in the explain anything as regards the presumption under Section 139 of the A'et_ relates the'*..e.iss'uance of the cheques towards __the debt: "or. 1iabi1"1t.y_VVbut the complainant has not proved the A'.t,1'ar12sa<:tion.a:c14d=t,here is no material to raise pI'€SL1I'1'1p1.iOl"i. The coinptainzmt'~.has_'not discha1'ged his burden of proving the V _transaetio::ji"a:'id in such circumstances the presumption '"--ca'm1ot beraised, Even otherwise. as the accused has taken it the_hdeE7erzee that there "was no deiivery of goods and in the .:''absence of any material on record to prove the delivery it >< 1-4' Cr1.RP 467/O7 cannot. be said that the cheques at E.'§x.hil3its P2 to PM were issued towards the price of the goods delivered.
11. Apart from his. it is relevant to note V' Exhibits P1 & P15 are concerned, it issued by the accused in the name Drawer. But so far as the cheqiiesat Eiiiiibits are " it concerned. they were selfleheques..vlri'thoiit:n SU.'.i'}{fll'flé{'A0f:.i'th€ word "or bearer". So if the of the goods there was no diFl"ie'tLt1i_y l'oi:"V'hi1*nt:io" P2 to P14 Ch€C1u€S in the the defence of the delivery of the goods is probable before the issuance of the notice by the.Lcoimpl'ain'ant thelaccused had issued a notice at V E'.x.P.3_i;j'o'I:,1<i1.1O';2.Cl0t) calling upon the complainant to deliver "v.Vtheago'o<1s"' or to return the cheques. These eircsumstancxes probal;;alise:"th_e dfefenee set up by the Accused.
153., learned counsel for the petitioner has relied decision of the High Court of Punjab and Haryana "Bana1-si Bass Vs. Mohinder Kumar Phahwa]. The
7.IfIon'bie High Court taking into consideration the issuance of a >4", :5 CI'I.RP 467/07 of it and therefore, l do not think that the principles Could be applicable to the facts of this case.
13. The oral evidence led by the parties _ importance in View of the documents complainant states that he has deli\/ered_-AAtliatl'goods the accused states that he has not.___recei'Ve_ldl'any goods demanded and ll1€l'6l'O1'6!l.H1"lllltl to be considered in the contex'i:_oi'-- prodnced by the parties. The lower appellate tal<len~:..ij'ntlo consideration all that material appreciation of the same has l V
14. two decisions of the Apex Court. rel"e1*1'ed'-.to" been held that in an appeal Order ol'llac=qt«:i'1otal when two views are possible the "e,our_t'i'ivshould not reverse the judgment and order of acqltiiittal. pa1:lo'iel;ilarly only because that the other View is _ possible... llllwiilen the judgmenii of the trial court was neither giervers-e nor suffer from any legal infirrnity for non» '-«eonsideratioii, mis--appreeiation of evidence on record. it held the reversal by the High Court was not justified' So l'.l1€ s<_ 1-7 Crl.RP 467/G?
scrutiny of the evidence does not reveal any such wrong appreciation of the evidence placed on record. it is_ne_ith__er perverse nor illegal and in such circ.tm1stanees__.;"'wlie1*i..__the petitioner has approached this court so far as the to P14 are concerned. 1 am of the opinion that he has=.r1oI'-rnade f out any grounds to call for the ii1a'if:1'i'e1'er1C_e."* In tlof1aV*t~vie\2.v of the matter. i answer the point in the negative and to pass the following:
The Criminai'Re§~*'isio:n P_eti~tio'n is -d--i.sn_1i:ésed. N0 costs.
ja zoos Sub