Karnataka High Court
M/S.Kalleshwari Agencies vs The Kanoria Industries Ltd. on 13 December, 2012
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 13TH DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL REVISION PETITION No.2030/2010
BETWEEN:
M/s.Kalleshwari Agencies
By its Proprietor
Mr.Gurumurthy, aged: 46 years
Occ: Business, ABC Cement Dealer
Malekumblur, Honnali Taluk
Bagalkot District. ...Petitioner
(By Sri V.P.Kulkarni, Advocate)
AND:
The Kanoria Industries Ltd.
Cement Division
Bagalkot 587 111
By its Legal Officer, A.R.Nidasheshi
Aged about 48 years, Bagalkot. ...Respondent
(By Sri V.R.Datar, Advocate)
This revision petition is filed under section 397 r/w 401
Cr.P.C., praying to set aside the judgment dated 13.11.2008,
passed in Crl.A.No.29/2009, on the file of District & Sessions
Judge at Bagalkot, confirming the judgment dated 03.04.2009,
passed in C.C.No.37/2007, on the file of I Addl. JMFC at Bagalkot
& etc.
This revision petition coming on for hearing this day, the
court made the following:
2
ORDER
The petitioner (hereinafter referred to as 'the accused') was tried for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'). The learned trial Judge has held the accused guilty of an offence punishable under section 138 of the Act. The accused was before I-appellate court in Criminal Appeal No.29/2009. The learned Judge of I-appellate Court on re-appreciation of evidence has confirmed the judgment of trial court. Therefore, accused has filed this revision petition under section 397 r/w section 401 Cr.P.C.
2. In a decision reported in (2004) 7 SCC 659 (in the case of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand & others), the Supreme Court has held:-
"In exercise of revisional power, High Court cannot undertake in-depth and minute re- examination of entire evidence and upset concurrent findings of trial court and first appellate court".3
3. The accused has not disputed that he had drawn the cheque in favour of respondent (hereinafter referred to as 'the complainant'), however accused has contended that he had instructed his banker to stop payment for failure of complainant to supply cement.
4. It is seen from bank passbook of accused, he did not have sufficient funds either on the date of issuance of cheque or on the date of presentation of cheque. The accused had issued instructions to his banker to stop payment as a devise to prevent the cheque being dishonoured for want of sufficient funds.
5. It is seen from the averments of complaint and the evidence of complainant that complainant was supplying cement to accused on credit basis and there was running account. As on the date of issuance of cheque, petitioner was due in a sum of Rs.24,750/-.
6. Under section 139 of the Act, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 4 for the discharge, in whole or in part, of any debt or other liability.
7. The accused has failed to rebut presumption available in favour of complainant. The courts below have not committed any glaring errors in appreciation of evidence and courts below have not misconstrued relevant provisions of law. In the circumstances, there are no reasons to interfere with the impugned judgment.
8. The learned counsel for accused submits that cheque amount is only a sum of Rs.24,750/-. In the circumstances, accused should not have been sentenced to undergo simple imprisonment for a period of six months and pay a fine of Rs.35,000/- with default sentence of simple imprisonment for a period of 30 days.
9. The learned counsel for accused would submit that sentence imposed by the trial court is excessive. The learned Judge of I-appellate court should have reduced sentence. 5
10. On hearing learned counsel for parties, I find some justification in the submission made by learned counsel for accused. Therefore, sentence passed by the trial court, confirmed by I-appellate court requires modification.
11. In the result, I pass the following:-
ORDER The revision petition is accepted in part. The impugned judgment of conviction is confirmed. The sentence is modified. The petitioner-accused is sentenced to pay a fine of Rs.35,000/- (Rupees Thirty Five Thousand only), in default to undergo simple imprisonment for a period of two months. Out of the fine amount recovered from petitioner-accused, a sum of Rs.30,000/- (Rupees Thirty Thousand only) shall be paid as compensation to respondent-complainant. The remaining amount shall be forfeited towards fine amount. Office is directed to send back records along with a copy of this order.
Sd/-
JUDGE SNN