Karnataka High Court
Mr Dave Jeyselvan vs M/S Sangeetha Minerals Pvt Ltd on 20 September, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 1377 of 2016
NC: 2023:KHC:33936
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 1377 OF 2016
BETWEEN:
MR. DAVE JEYSELVAN,
S/O C. SAMRAJ,
AGED ABOUT 56 YEARS,
R/OF NO:47, MUNUSWAMY SALAI,
WEST K.K. NAGAR, CHENNAI - 600 001.
...PETITIONER
(BY SRI. BRYEN STIENBERG SEBASTRAN, ADVOCATE FOR
SRI. JOSE SEBASTRAN, ADVOCATE)
AND:
M/S. SANGEETHA MINERALS PVT. LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR,
Digitally MR. SANTHOSH KUMAR,
signed by AGED ABOUT 52 YEARS,
PRAMILA G V
R/AT POOJAN APARTMENTS,
Location:
HIGH COURT FLAT NO.103, V.T. ROAD
OF MANGALURU, KARNATAKA - 575 001.
KARNATAKA ...RESPONDENT
(BY SRI. S. N. BHAT, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 08.08.2016 IN
CRL.A.NO.243/2015 ON THE FILE OF THE LEARNED IV ADDL.
DIST. AND S.J., MANGALORE D.K. AND JUDGMENT AND ORDER
DATED 30.09.2015 IN C.C.NO.854/ ON THE FILE OF JMFC-IV
COURT, MANGALORE BY ALLOWING THIS R.P., AND EXAMINE
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CRL.RP No. 1377 of 2016
NC: 2023:KHC:33936
THE LEGALITY, PROPRIETY OR CORRECTNESS OF THE
IMPUGNED JUDGMENT.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision is filed by the accused/revision petitioner under Section 397 read with Section 401 of Cr.P.C. challenging the judgment of conviction and order of sentence passed by the JMFC-IV Court, Mangaluru in C.C.No.854/2014 dated 30.09.2015 and confirmed by the IV Additional District & Sessions Judge, Dakshina Kannada, Mangaluru in Crl.A.No.243/2015 vide judgment dated 08.08.2016.
2. For the sake of convenience, 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 that the complainant is the Managing Director of M/s Sangeetha Minerals Private Ltd., Mangaluru and doing the business of dealing in granites, marbles and iron ore import as well as export. It is asserted that the accused -3- CRL.RP No. 1377 of 2016 NC: 2023:KHC:33936 had entered into memorandum of agreement dated 30.11.2011 with complainant on behalf of Mr.Kamalakanth Dandayudhapani, who failed to return Rs.35,00,000/- transferred by the complainant to the account of M/s.Enkorr Power Gen Ltd. As per the settlement the accused had paid Rs.5,00,000/- through demand draft to the complainant towards legally dischargeable debt. He has issued two cheques bearing No.457750 dated 15.12.2011 and No.457751 dated 30.12.2011 for Rs.15,00,000/- each, and when the said cheques were presented for encashment by the complainant, they were returned with an endorsement as 'payment stopped by drawer'.
4. It is the specific contention that cheques were issued by one Santhosh Kumar claiming to be the Managing Director of M/s Sangeetha Minerals Pvt. Ltd, Mangalore and further the memorandum of agreement was also entered between Santhosh Kumar and the accused. The legal notice came to be issued and since the -4- CRL.RP No. 1377 of 2016 NC: 2023:KHC:33936 cheque amount was not paid, a complaint came to be lodged.
5. Learned Magistrate has taken cognizance of the offence and issued process against the accused. The accused have appeared through their counsel and enlarged on bail.
6. The plea under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act') was framed against the accused and the same was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried. Thereafter, on behalf of the complainant, Santhosh Kumar was got examined as PW.1 and placed reliance on 20 documents which were marked at Ex.P1 to Ex.P20. After the conclusion of the evidence of the complainant, the statement of the accused under Section 313 of Cr.P.C., was recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial. On behalf of the accused he -5- CRL.RP No. 1377 of 2016 NC: 2023:KHC:33936 himself got examined as DW.1. However, he did not choose to produce any documentary evidence.
7. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate convicted the accused for the offence punishable under Section 138 of the N.I. Act, 1881 by imposing him to pay a fine of Rs.30,15,000/- with default clause and further passed an order under Section 357(1)(a) regarding distribution of the compensation. This order was challenged by the accused before IV Additional Sessions Judge, Dakshina Kannada, Mangaluru in Crl.A.No.243/2015. Learned Sessions Judge after re- appreciating the oral and documentary evidence has dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate.
8. Being aggrieved by these concurrent findings, the revision petitioner is before this Court. -6- CRL.RP No. 1377 of 2016
NC: 2023:KHC:33936
9. Heard the arguments advanced by the learned counsel for the revision petitioner and learned counsel appearing for the respondent. Perused the records.
10. Learned counsel for the revision petitioner would contend that the accused never had any dealings with the complainant firm and he had dealt in the individual capacity with Santhosh Kumar. He would also assert that the legal notice was not issued by Santhosh Kumar and hence, the provisions of Section 138 of the N.I. Act, 1881 are not attracted as the accused is not liable to pay anything to the complainant-company. He would also contend that subsequently, the complainant has also initiated proceedings against the principal borrower by name Mr.Kamalakanth Dandayudhapani and he had settled the dispute along with him and in view of the settlement of the dispute by the complainant with Mr.KamalaKanth Dandayudhapani, there cannot be any liability against the accused, since liability of the accused is alleged to be only on the basis of security and when the -7- CRL.RP No. 1377 of 2016 NC: 2023:KHC:33936 main liability has been discharged, the accused cannot be held responsible. He further filed I.A.No.1/2023 to produce relevant documents in this regard, to show that there was settlement and filed an application under Section 391 of Cr.P.C. seeking permission to produce relevant documents regarding settlement with Mr.Kamalakanth Dandayudhapani in C.C.No.520/2011 vide order dated 17.08.2022. Hence, he would seek for allowing the revision by setting aside the impugned judgment of conviction and order of sentence.
11. Per contra, the learned counsel for respondent would support the judgment of conviction and order of sentence passed by both the Courts below and he would also contend that Santhosh Kumar himself is a Managing Director acting on behalf of the Company and hence, the accused cannot escape from his liability. However, he would submit that as regards the settlement as highlighted by the learned counsel for revision petitioner in I.A.No.1/2023, he had no idea about this aspect and the -8- CRL.RP No. 1377 of 2016 NC: 2023:KHC:33936 documents are required to be tested as to whether it is pertaining to the same transaction or different transaction. Hence, he would seek to dismiss the petition
12. Having heard the arguments and perusing the records, the allegations are that the accused is acting as a surety to Mr.Kamalakanth Dandayudhapani in respect of his transaction with Santhosh Kumar. Whether, the transaction was between the Company or it is in individual capacity by Santhosh Kumar are required to be independently considered. However, the documents produced by the revision petitioner along with I.A.No.1/2023 clearly disclose that, the said Mr.Kamalakanth Dandayudhapani was also prosecuted along with Company and other Directors in C.C.No.520/2011 by the complainant and the certified copy of the order sheet dated 17.08.2022 clearly discloses that subsequently, Mr.Kamalakanth Dandayudhapani has settled the dispute by entering into a compromise under Section 147 of the N.I. Act, 1881. Whether, the settlement -9- CRL.RP No. 1377 of 2016 NC: 2023:KHC:33936 was pertaining to this transaction or of a different transaction is required to be considered by the concerned Magistrate itself. But the fact remains that the matter is settled and prima facie there are certain allegations regarding liability to an extent of Rs.35,00,000/- and payment made is only to an extent of 5,00,000/-.
13. In view of these aspects, both the learned counsels submits that the matter may be remanded to the trial Court to consider the relevancy of settlement whether pertaining to the same transaction or it was pertaining to a different transaction and what was the amount distributed out of this settlement. The submission appears to be fair and hence, the revision petition needs to be allowed along with I.A.No.1/2023. Accordingly, I have proceed to pass the following:
ORDER
1. The revision petition is allowed.
2. The impugned judgment of conviction and order of sentence passed by JMFC-
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CRL.RP No. 1377 of 2016
NC: 2023:KHC:33936 IV Court, Mangaluru C.C.No.854/2014 dated 30.09.2015 and confirmed by the IV Additional District & Sessions Judge, Dakshina Kannada, Mangaluru in Crl.A.No.243/2015 dated 08.08.2016 are set aside.
3. The matter stands remitted back to the learned Magistrate with a direction to consider the documents produced by the learned counsel for the revision petitioner/accused along with I.A.No.1/2023 and to give a finding whether the settlement was pertaining to this transaction or of a different transaction and then pass an appropriate orders within three months from the date of appearance of both the parties before the Court.
4. Both the parties are at liberty to lead further evidence and produce documents.
5. I.A.No.1/2023 stands allowed.
6. The Registry is directed to transmit the entire records of the trial Court along with the documents produced along with
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CRL.RP No. 1377 of 2016
NC: 2023:KHC:33936
I.A.No.1/2023 to the trial Court
immediately with copy of this order.
7. The amount in deposit before this Court shall be transmitted to the trial Court to be paid to the successful party.
8. Considering the old nature of the matter and as both the parties are represented before this Court by their respective counsels, the parties are directed to appear before the learned Magistrate on 30.10.2023 at 10.30 am without waiting for any notice from the Court.
Sd/-
JUDGE URN List No.: 1 Sl No.: 7 CT: BHK