Karnataka High Court
M/S Amaravathy School Of Business vs Smt K Samskruthi on 19 September, 2023
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NC: 2023:KHC:33829
CRL.RP No. 93 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MRS. JUSTICE M.G. UMA
CRIMINAL REVISION PETITION NO. 93 OF 2020
BETWEEN:
M/S. AMARAVATHY SCHOOL
OF BUSINESS
REPRESENTED BY
SRI RAMAKRISHNA C.H.
S/O C.H. SELVARAJ
AGEDA BOUT 30 YEARS
RESIDING AT NO.276
1ST FLOOR, 10TH CROSS
5TH MAIN, N.R. COLONY
BENGALURU - 560 019.
...PETITIONER
(BY SRI. DEVARAJA M., ADVOCATE)
AND:
SMT. K. SAMSKRUTHI
W/O MURALI KRISHNA
Digitally signed by AGED ABOUT 38 YEARS
ARUN KUMAR M S
Location: High R/AT NO.S 6, VENSA
Court of Karnataka
PRIME APARTMENTS
NO.17-21,
MANGAMMANAPALYA MAIN RAOD
BOMMANAHALLI
BENGALURU - 560 068.
...RESPONDENT
(BY SRI. B. KESHAVA MURTHY, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CRIMINAL PROCEDURE CODE,
PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND
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NC: 2023:KHC:33829
CRL.RP No. 93 of 2020
SENTENCE AND FINE AMOUNT IMPOSED BY THE LEARNED XIX
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT
BENGALURU VIDE JUDGMENT DATED 05.07.2018 PASSED IN
C.C.NO.22283 OF 2016 AND FURTHER BE PLEASED TO SET
ASIDE THE MODIFICATION OF THE JUDGMENT PASSED BY THE
LEARNED LXVIII ADDITIONAL CIVIL AND SESSIONS JUDGE
CCH-69 BENGALURU VIDE JUDGMENT DATED 12.09.2019
PASSED IN CRL.A.NO.1489 OF 2018 AND FURTHER BE
PLEASED TO ACQUIT THE PETITIONER.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The accused in C.C. No.22283/2016 on the file of learned XIX Addl. Chief Metropolitan Magistrate, Bengaluru City (hereinafter referred to as 'the Trial Court' for brevity) is impugning the Judgment of conviction and Order of sentence dated 05.07.2018 convicting the accused for the offence punishable under Section 138 of Negotiable Instruments Act (for short 'NI Act') and sentencing to pay fine of Rs.40,00,000/- in default to undergo simple imprisonment for a period of three months, which was partly allowed and modified vide judgment dated -3- NC: 2023:KHC:33829 CRL.RP No. 93 of 2020 12.09.2019 passed in Crl. A. No.1489/2018 by the learned LXVIII Addl. City Civil and Sessions Judge (hereinafter referred to as 'the First Appellate Court' for brevity), by reducing the sentence to pay fine of Rs.30,00,000/-.
2. Brief facts of the case are that, the complainant has filed the private complaint in PCR No.10342/2016 before the Trial Court against the accused alleging commission of offence punishable under Section 138 of the N.I. Act. It is contended by the complainant that, the accused Swami Vivekananda Educational Trust, represented by its authorized signatory is running various educational Institutions and accordingly, issued a paper publication calling upon investment for improvement of the educational Institutions and promising to pay profit within 45 days from the date of investment. The complainant after considering the paper publication, transferred an amount of Rs.18,00,000/- to the bank account maintained by the accused, on 08.07.2016. Later when the complainant requested for return of the amount, -4- NC: 2023:KHC:33829 CRL.RP No. 93 of 2020 the accused issued in all, three cheques i.e. cheque bearing No.221577 for Rs.10,00,000/-, cheque bearing No.221576 for Rs.8,00,000/- and cheque bearing No.221578 for Rs.3,90,000/-, all cheques dated 27.08.2016 drawn on State Bank of Hyderabad, Jayanagar Branch, Bengaluru, towards repayment of the amount that was due to the complainant. As per instructions of the accused, cheques were presented for encashment. But all the three cheques were dishonored as there was insufficient fund in the account of the accused. The complainant issued legal notice intimating the accused regarding dishonour of the cheque and calling upon him to repay the cheques amount. The legal notice was served on the accused but in spite of that, there was neither any reply nor compliance of the demand made therein, thereby the accused has committed the offence punishable under Section 138 of the N.I. Act. Accordingly, the complainant requested the Trial Court to take cognizance of the offence and to initiate legal action against the accused. -5-
NC: 2023:KHC:33829 CRL.RP No. 93 of 2020
3. Learned Magistrate took cognizance of the offence and summoned the accused to appear before the Trial Court. The accused appeared before the Trial Court and pleaded not guilty for the accusation made against him. The complainant examined herself as P.W.1 and got marked Exs.P1 to P19 in support of her contentions. The accused has denied all the incriminating material placed on record, but has not chosen to lead any evidence in support of his defence. The Trial Court after taking into consideration all the materials on record, convicted the accused for the offence under Section 138 of the N.I. Act and sentenced him to pay fine of Rs.40,00,000/-, in default to pay fine, to undergo simple imprisonment for three months.
4. Being aggrieved by the same, the accused preferred Crl.A. No.1489/2018 before the First Appellate Court. The First Appellate Court, on re-appreciation of the materials on record, allowed the appeal in part vide Judgment dated 12.09.2019, by confirming the Judgment -6- NC: 2023:KHC:33829 CRL.RP No. 93 of 2020 of conviction passed by the Trial Court, and modifying the order of sentence imposing fine of Rs.30,00,000/- instead of Rs.40,00,000/- imposed by the Trial Court.
5. Being aggrieved by the same, the accused is before this Court.
6. Learned counsel for the petitioner has remained absent and has not addressed the arguments in spite of giving sufficient opportunity. Hence, his arguments is taken as 'nil'. Heard Sri. B. Keshava Murthy, learned counsel for the respondent. Perused the materials including the Trial Court records.
7. Learned counsel for the respondent submits that the accused had published the paper publication calling upon the public to invest, develop and improve the educational Institutions promising to pay lucrative returns. The copy of paper publication is as per Ex.P13. Acting on the same, the complainant transferred an amount of Rs.18,00,000/- to the account of the accused on -7- NC: 2023:KHC:33829 CRL.RP No. 93 of 2020 08.07.2016. The passbook of the complainant is produced as per Ex.P12. Towards repayment of the amount, the accused issued three cheques for Rs.8,00,000/-, Rs.10,00,000/- and Rs.3,90,000/- on 27.08.2016. When the cheques were presented for encashment, all the cheques were dishonoured on the ground of insufficient funds. In spite of issuing legal notice, accused has not repaid the cheques amount and thereby it has committed the offence.
8. Learned counsel for the respondent further submitted that the complainant examined herself as P.W.1 and got marked all the relevant documents. The Trial Court after taking into consideration all the materials on record, convicted and sentenced the accused as stated above. Even though the First Appellate Court modified the order of sentence by reducing the fine amount from Rs.40,00,000/- to Rs.30,00,000/-, the accused is before this Court. The accused has never taken any defence before the Trial Court. Under the circumstances, the -8- NC: 2023:KHC:33829 CRL.RP No. 93 of 2020 Revision Petition is liable to be dismissed, accordingly, he prays for dismissal of the Revision Petition.
9. In view of the grounds urged in the petition, materials on record and the submissions made by learned counsel for the respondent - complainant, the point that would arise for my consideration is:
"Whether the impugned Judgment of conviction and Order of sentence passed by the Trial Court, which was confirmed and modified by the First appellate Court, suffers from any illegality or perversity and calls for interference by this Court?"
My answer to the above point is in the 'Negative' for the following:
REASONS
10. It is the specific contention of the complainant that she had transferred an amount of Rs.18,00,000/- to the account maintained by the accused on 08.07.2016. It is her contention that as per the paper publication, the -9- NC: 2023:KHC:33829 CRL.RP No. 93 of 2020 accused had called upon the general public to invest Rs.10,00,000/- and get return of Rs.12,00,000/- within 45 days. The copy of paper publication is produced as per Ex.P13. Ex.P12 is the passbook pertaining to the complainant which evidences the fact that on 08.07.2016, a sum of Rs.8,00,000/- and Rs.10,00,000/- were transferred through RTGS by the complainant. Exs.P1 to P3 are the cheques dated 27.08.2016 for Rs.10,00,000/-, Rs.8,00,000/- and Rs.3,90,000/- respectively issued on behalf of the accused by the authorized signatory. All the three cheques were drawn in favour of the complainant. Ex.P4 to P6 are the endorsements issued by the banker, informing the complainant that the cheques were dishonoured for insufficient funds. Ex.P7 is the copy of legal notice issued by the complainant to the accused informing him about dishonour of cheques and calling upon the accused to repay the cheques amount. Ex.P8 is the postal receipt. Ex.P9 is the postal track consignment according to which, the item i.e., the legal notice issued is delivered to the addressee. Ex.P10 is the letter addressed
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NC: 2023:KHC:33829 CRL.RP No. 93 of 2020 by the complainant to the Post Master enquiring about service of notice on the accused. Ex.P11 is the letter by the Post Master, Jayanagar Head Office, Bengaluru, addressed to the complainant, informing that the letter dated 12.09.2016 is delivered to the addressee. Ex.P14 is the business card of Sri. Ramakrishna C.H., representing Swami Vivekananda Educational Trust (R), as Secretary. Exs.P15 to Ex.P17 are the pamphlets published by the accused. Exs.P18 and P19 are the rent agreements dated 21.10.2011 and 01.06.2012 respectively, according to which the accused has taken the premises on lease from its owner.
11. The complainant examined herself as P.W.1 before the Trial Court. She has filed her affidavit in lieu of examination-in-chief and reiterated her contentions as taken in the complaint. The oral and documentary evidence placed before the Court by the complainant fully supports her contention regarding lending of the amount, issuance of cheques by the accused, dishonour of the
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NC: 2023:KHC:33829 CRL.RP No. 93 of 2020 same for want of sufficient funds, issuance of legal notice and service of the same on the accused. The accused has denied all the incriminating materials available on record, but has not chosen to lead any evidence in support of his defence.
12. It is pertinent to note that even though P.W.1 was cross examined by the learned counsel for the accused, no specific defence was taken. On the other hand, it is suggested to the witness that even though there was no transaction between the complainant and the accused, the complainant has registered a false complaint. Apart from this, nothing has been suggested nor elicited from P.W.1. The accused has also not stepped into the witness box to depose about its defence. There is absolutely no explanation to the clinching materials placed before the Court by the complainant. Thus, the legal presumptions under Sections 118 and 139 of the N.I. Act are not rebutted. Under such circumstances, I am of the opinion that the complainant is successful in proving the
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NC: 2023:KHC:33829 CRL.RP No. 93 of 2020 guilt of the accused for the offence punishable under Section 138 of the N.I. Act beyond reasonable doubt and the accused is liable for conviction.
13. I have gone through the impugned Judgment of conviction and Order of sentence passed by the Trial Court and the First Appellate Court. Both the Courts have concurrently convicted the accused by assigning reasons. Even though the Trial Court sentenced the accused to pay a fine of Rs.40,00,000/-, the First Appellate Court, modifying the order of sentence, imposed fine of Rs.30,00,000/- and the same has not been challenged by the complainant. Therefore, I do not find any reason to interfere with the same. I am of the opinion that the impugned Judgment of conviction and Order of sentence passed by the First Appellate Court is liable to be confirmed. Accordingly, I answer the point formulated above, in the negative and proceed to pass the following:
ORDER
(i) Revision Petition is dismissed.
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(ii) The Judgment of conviction and Order of sentence passed in Crl. A. No.1489/2018, dated 12.09.2019 by the learned LXVIII Addl. City Civil and Sessions Judge, Bengaluru City, is hereby confirmed.
(iii) The amount in deposit, if any, shall be transmitted to the Trial Court to appropriate the same towards fine and compensation.
Registry is directed to send back the Trial Court records along with copy of this order, forthwith.
SD/-
JUDGE sac List No.: 1 Sl No.: 38