Karnataka High Court
M/S Perpetual Estate vs M/S Hebron on 19 April, 2023
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
CRL.RP.1395/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
CRL.R.P.No.1395/2015
BETWEEN:
1. M/S PERPETUAL ESTATE
HOLDINGS PVT.,
REG. UNDER THE COMPANIES ACT, 1956
NO.37, 1ST MAIN ROAD
3RD CXROSS, RMV 2ND STAGE
JUDICAL OFFICERS LAYOUT
SANJAYA NAGAR
BANGALORE - 560 094.
2. MR. PATRIC LAWRENCE
S/O PETER, AGED ABOUT 52 YEARS
DIRECTOR
M/S PERPETUAL ESTATE , HOLDING PVT.,
REG UNDER THE COMPANIES ACT, 1956
NO.37, 1ST MAIN ROAD, 3RD CXROSS
RMV 2ND STAGE, JUDICAL OFFICERS
LAYOUT, SANJAYA NAGAR
BANGALORE - 560 094. ... PETITIONERS
(BY SRI K.V.SATEESHCHANDRA, ADV.)
AND:
M/S HEBRON PROPERTIES PVT. LTD.,
REG UNDER THE COMPANIES ACT, 1956
NO.74/4, VISHWANATHAPURAM
ARAKERE POST, RAJANAKUNTE
BANGALURU - 560 027
REP BY ITS DIRECTOR MR. SATHISH KOSHY
S/O CHARUVI. ... RESPONDENT
CRL.RP.1395/2015
2
(BY SMT. KEERTANA NAGARAJ, ADV., FOR
SRI PRATEEK CHANDRAMOULI, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 CR.PC, PRAYING TO SET ASIDE THE SENTENCE AND
CONVICTION ORDER PASSED IN CRL.A.NO.98/2015 BY THE LXVII
ADDL. CITY CIVIL AND S.J., BANGALORE DATED 18.11.2015 AND
THE ORDER DATED 24.12.2014 PASSED BY THE COURT OF XXI
A.C.M.M., BANGALORE IN C.C.NO.10260/2010.
THIS PETITION HAVING BEEN HEARD AND RESEVED,
COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
1. This criminal revision petition under Section 397 Cr.PC is filed by accused nos.1 & 2 challenging the judgment and order of conviction and sentence dated 24.12.2014 passed by the XXI Addl. Chief Metropolitan Magistrate, Bengaluru, in C.C.No.10260/2010, and the judgment and order dated 18.11.2015 passed by the LXVII Addl. City Civil & Sessions Judge, Bengaluru City, in Crl.A.No.98/2015.
2. Heard the learned Counsel for the petitioners/accused nos.1 & 2 and the learned Counsel for the respondent/ complainant.
CRL.RP.1395/20153
3. Facts leading to filing of this revision petition narrated briefly are, accused no.1-Company represented by accused no.2 who was the Managing Director of the Company had entered into a Memorandum of Understanding (MOU) dated 17.09.2008 at Ex.P-3 with the respondent/complainant- company for a joint development project of 50 acres of land situated at Thindlu village. Under Ex.P-3, an amount of Rs.One crore was paid by the complainant to the petitioners/accused in cash towards part payment of non- refundable security deposit of Rs.10 crores which was agreed to be paid by the complainant to the accused. Since the accused failed to perform their obligations stipulated under Ex.P-3, after negotiation, the accused agreed to repay the amount of Rs.One crore received by them from the complainant under Ex.P-3. Accordingly, a cheque bearing No.903206 dated 01.12.2009 for a sum of Rs.One crore drawn on State Bank of India, Kumarapark West Branch, Bengaluru, which was drawn on the account of accused no.1 and signed by accused no.2 was issued in favour of the complainant. The said cheque on presentation for encashment, was dishonoured with a banker's endorsement CRL.RP.1395/2015 4 'insufficient funds/stop payment'. Thereafter, the complainant got issued a legal notice dated 15.12.2009 to accused nos.1 & 2 and the wife of accused no.2 as required under Section 138(b) of the Negotiable Instruments Act, 1881 (for short, 'the Act') and though the said legal notice was duly served on the petitioners, they did not pay the amount demanded in the legal notice, and on the other hand, they had issued a reply on 29.12.2009. Being not satisfied with the reply, the complainant had filed PCR No.1853/2010 before the Trial Court and in the said proceedings, cognizance of the alleged offence against accused nos.1 to 3 was taken by the learned Magistrate and a case was registered in C.C.No.10260/2010 for the offence punishable under Section 138 of the Act.
4. In the said proceedings, the accused had appeared before the Trial Court and pleaded not guilty. The complainant, in order to prove its case, had examined its Director as PW-1 and also had got marked 24 documents as Exs.P-1 to P-24. The incriminating circumstances available on record against the accused was denied by them during the course of their statements under Section 313 Cr.PC. In CRL.RP.1395/2015 5 support of their defence, accused no.2 was examined as DW-1 and three documents were got marked as Exs.D-1 to D-3. The Trial Court, thereafter, heard the arguments on both sides and by judgment and order dated 24.12.2014 convicted accused nos.1 to 3 for the offence punishable under Section 138 of the Act and sentenced them to pay a total fine amount of Rs.1,00,10,000/- and in default to undergo simple imprisonment for a period of ten months. The appeal filed by the accused in Crl.A.No.98/2015 against the said judgment and order of conviction and sentence passed by the Trial Court was partly allowed. The Appellate Court confirmed the judgment and order of conviction as against accused nos.1 & 2 and set aside the same as against accused no.3. It is in this factual background, accused nos.1 & 2 are before this Court.
5. Learned Counsel for the petitioners/accused nos.1 & 2 submits that the courts below were not justified in convicting the accused for the offence under Section 138 of the Act. He submits that the MOU - Ex.P-3 was entered by the accused with M/s.Vineyard Hebron Properties Pvt. Ltd., and not with the complainant-company. He submits that the amount under CRL.RP.1395/2015 6 Ex.P-3 is, therefore, not paid by the complainant-company. He also submits that Exs.P-19, 20 & 21 are not the account extracts of the complainant-company, and therefore, there is nothing to show that the complainant-company had paid a sum of Rs.One crore to the accused. He also submits that the complainant has filed a separate criminal case for the offences punishable under Sections 420 & 506 IPC, and therefore, in view of Section 300 of Cr.PC, the present proceedings is not maintainable. He submits that the cheque in question was lost by the accused and in this regard, police complaint as well as stop payment instructions were given which is evident from Exs.D-1 & D-3 and the same is not appreciated by the Trial Court. He submits that since the accused had raised a probable defence, the presumption under Section 139 of the Act was successfully rebutted, and therefore, the courts below were not justified in convicting the accused. In support of his arguments that the present proceedings is not maintainable in view of Section 300 Cr.PC, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of G.SAGAR SURI & ANOTHER VS STATE OF U.P. & OTHERS - 2000 CRL.L.J. 824.
CRL.RP.1395/20157
6. Per contra, learned Counsel for the respondent/complainant submits that the complainant- company was earlier known as M/s.Vineyard Hebron Properties Pvt. Ltd., and subsequently, the name of the company was changed to M/s.Hebron Properties Pvt. Ltd., and a fresh certificate of incorporation regarding change of name of the company has been produced as Ex.P-2. She submits that the signature found in the cheque as well as the contents of the cheque are not seriously disputed in the present case, and therefore, there is a presumption against the accused under Section 139 of the Act which was not rebutted in the manner known to law. She submits that in the criminal case filed by the complainant for the offences punishable under Sections 420 & 506 IPC which is numbered as C.C.No.24126/2011, accused no.2 had filed a memo of compromise agreeing to pay the amount of Rs.One crore. She submits that since he had failed to comply with the terms of the memo of compromise, the learned Magistrate before whom C.C.No.24126/2011 is pending, has now proceeded with the trial of the case. She also submits that the cheque in CRL.RP.1395/2015 8 question was handed over to the complainant by the accused on 19.11.2009, and thereafter, with an intention to cheat the complainant, a police complaint as per Ex.D-1 and stop payment instructions as per Ex.D-3 were given by accused no.2 and it is under these circumstances, C.C.No.24126/2011 for the offences punishable under Sections 420 & 506 IPC is filed against him. She submits that even in the present case, the accused had undertaken to settle the matter and pay the amount due to the complainant which is reflected in the order sheet dated 23.10.2010 of the Trial Court. She submits that accused no.2 who was examined as DW-1, during the course of his cross-examination has admitted about the filing of the memo of compromise as per Ex.P-16 and also has admitted his undertaking to settle the matter as reflected in the order sheet of the Trial Court dated 23.10.2010. She, accordingly, prays to dismiss the revision petition.
7. I have carefully considered the arguments addressed on both sides and also perused the material available on record.
8. In the private complaint filed by the respondent- complainant as per Ex.P-18, it is stated that at the time of CRL.RP.1395/2015 9 entering into the MOU dated 17.09.2008 as per Ex.P-3, the complainant-company was registered in the name of M/s.Vineyard Hebron Properties Pvt. Ltd., and on 11.02.2009, the name of the company was changed from M/s.Vineyard Hebron Properties Pvt. Ltd., to M/s.Hebron Properties Pvt. Ltd., and in this regard, the complainant has produced Ex.P-2 which is a copy of the fresh certificate of incorporation.
9. The MOU dated 17.09.2008 is marked as Ex.P-3, and undisputedly, accused no.2 is a signatory to the said document. The complainant-company was represented by its Director Mr. Alexander Daniel and Mr. Sathish Koshy in Ex.P-3. In the said document, it has been specifically stated that a sum of Rs.One crore was paid in cash by the complainant-company to accused no.1-company and since accused nos.1 & 2 are undisputedly parties to the said document, the payment of Rs.One crore made by the complainant under the said document to the accused cannot be disputed.
10. In addition to the same, the complainant has marked Exs.P-19, P-20 & P-21 which is the account extract of Mr. CRL.RP.1395/2015 10 Alexander Daniel who is one of the Director of the complainant-company to show that the amount of Rs.One crore was drawn from the said account by PW-1 - Sathish Koshy and during the course of his deposition, PW-1 has specifically stated that the said amount of Rs.One crore drawn by him was paid in cash to the accused under Ex.P-3. Therefore, the transaction as well as the payment of Rs.One crore under Ex.P-3 has been successfully proved by the complainant.
11. The cheque in question is marked as Ex.P-5. The same is drawn on the account of accused no.1-company which was maintained in State Bank of India, Kumarapark West Branch, Bengaluru, and the cheque in question is signed by accused no.2. The date and amount mentioned in the cheque are also not in dispute since the mentioning of the date and amount in the cheque in question is reflected in the police complaint - Ex.D-1 given by accused no.2. It is specifically pleaded by the complainant that the cheque in question was handed over by the accused on 19.11.2009. Though during the course of cross-examination of DW-1 it is suggested that the contents CRL.RP.1395/2015 11 of the cheque in question are not filled by accused no.2, the same has to be rejected having regard to the statement made by DW-1/accused no.2 in Ex.D-1 - police complaint, wherein he has admitted the date and amount mentioned in the cheque. The accused have admitted their liability to pay the amount covered under the cheque in question in the proceedings initiated by the complainant against accused no.2 in C.C.No.24126/2011 and also in the present case. In C.C.No.24126/2011, a memo of compromise was filed on 24.05.2011 undertaking to pay the amount of Rs.One crore in four monthly instalments. Ex.P-17 would go to show that that the accused had not honoured their commitments under the memo of compromise, and therefore, the learned Magistrate has proceeded further in the said case. Even in the present case, the accused had made a submission before the Trial Court that they are ready and willing to pay the amount of Rs.One crore to the complainant and the same is evident from the order sheet dated 23.10.2010. During the course of his cross-examination, DW-1 has stated as under:
"......... It is true to suggest that cheating case in Crime No.348/2010 is registered against me as per Ex.P15 and a charge sheet is filed in CRL.RP.1395/2015 12 C.CNo.24126/2011 before XI ACMM, Bangalore. I have not read the allegations made in the charge sheet. It is true to suggest that said case is also in respect of cheque in question. It is true to suggest that Ex.P16 that case was referred to Lok adalath as per Ex.P16 and after conciliation myself and the complainant have filed joint memo as per Ex.P16. It is true to suggest that even before this court also I undertook to pay Rs.1 crore in 3 installments and subsequently I have not paid the same."
12. Since the accused had admitted their liability and had agreed to pay the amount of Rs.One crore to the complainant, their contention that the cheque in question was lost and the same was misused by the complainant is liable to be rejected and Exs.D-1 to D-3 also looses relevance.
13. Learned Counsel for the petitioner has also made a submission that in view of Section 300 of Cr.PC, the present proceedings against the petitioners cannot be proceeded with.
14. Section 300 of Cr.PC reads as under:
"300. Person once convicted or acquitted not to be tried for same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and CRL.RP.1395/2015 13 convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-
section (1) of section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he CRL.RP.1395/2015 14 was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first- mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 , (10 of 1897 ) or of section 188 of this Code.
Explanation.- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section."
15. The petitioners have neither been convicted or acquitted by any court for the very same offence, and therefore, Section 300 of Cr.PC is not applicable in the present case. The judgment in Sagar Suri's case supra is, therefore, not applicable to the facts of the present case.
16. The courts below having appreciated the oral and documentary evidence available on record and considering the fact that the accused had not rebutted the presumption that arose against them in view of Section 139 of the Act and CRL.RP.1395/2015 15 also considering the fact that the accused had admitted their liability by agreeing to pay the amount covered under the cheque in question to the complainant in instalments, have rightly convicted the accused for the offence punishable under Section 138 of the Act. The concurrent findings recorded by the courts below cannot be interfered by this Court in exercise of its revision jurisdiction unless it is shown that the impugned judgment suffers from illegality or perversity. The impugned judgment and order passed by the courts below are well reasoned and sound and needs no interference by this Court. The revision petition is devoid of merits, and accordingly, the same is dismissed.
Sd/-
JUDGE KK