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2019 Supreme(Kar) 2244
IN THE HIGH COURT OF KARNATAKA
B.A. PATIL, J.
Mr. Santosh S. Lad – Appellant
Versus
M/s Rockline Entertainment Pvt. Ltd. – Respondent
Criminal Revision Petition Nos. 87, 133 of 2019
Decided On : 04-11-2019
Advocate Appeared:
For the Appellant : Sri. Manjunath K.V.
For the Respondent: Sri. A. Gopiprakash.
Headnote:
Criminal Procedure Code,1973 - Section 313 - Evidence Act - Sections 92 and 91 - Negotiable Instruments Act, 1881 - Section 139 and 138 - complainant issued Demand Draft - Sought return of 3 cheques agreeing to repay - Cheques were dishonoured - Whether cheque was issued towards hand loan or towards amount spent by the complainant need not be considered - Complainant before Court below is that one represented by its Director engaged in business activities was badly in need of funds to clear the loan amount been availed - Accused approached complainant and requested to save M/s Media One Global Entertainment Ltd., from its debt by lending a sum of assuring complainant accused himself would repay same - On request and assurance made by the accused - Complainant agreed to clear loan of said M/s Media One Global furtherance of assurance by accused, the complainant issued Demand Draft bearing - Accused had assured complainant and agreed to discharge said liability and had issued 10 cheques bearing all drawn on HDFC Bank Limited, same was reduced into writing by an agreement - Subsequently, out of 10 cheques, accused sought return of 3 cheques agreeing to repay same in cash in due course of time - On request of the accused, the complainant presented the said cheques for encashment through M/s Syndicate Bank and complainant communicated the said fact to the accused, at time, accused requested to present all seven cheques for encashment – Held, considerable judicial authority for the proposition that the courts can reduce the period of imprisonment depending upon the nature of the transaction, the bona fides of the accused, the contumacy of his conduct, period for which the prosecution goes on, the amount of the cheque involved, the social strata to which the parties belong, so on and so forth - Some of these factors may indeed make out a case where the court may impose only a sentence of fine upon the defaulting drawer of the cheque - There is for that purpose considerable discretion vested in the court concerned which can and ought to be exercised in appropriate cases for good and valid reasons. Suffice it to say that the High Court was competent on a plain reading of Section 138 to impose a sentence of fine only upon appellant - Inasmuch as the High Court did so, it committed no jurisdictional error - Challenge to the order passed by the High Court deleting the sentence of imprisonment awarded to the appellant, we do not consider it necessary or proper to say anything further at this stage - Settled proposition of law that revisional court is having only limited jurisdiction and it can only interfere in case of apparent error being occurred on the face of records or if any illegality has been committed by the Trial Court or first Appellate Court. No such case is made out by both the parties - IA Nos. 3/2019 and 4/2019 disposed of
ORDER :
1. Criminal Revision Petition No.87/2019 has been filed by the petitioner-accused challenging the legality and correctness of the judgment passed in Crl.A.No.941/2017 dated 20.12.2018 and Criminal Revision Petition No. 133/2019 has been filed by the petitioner-complainant challenging the legality and correctness of the judgment passed by the Principal City Civil and Sessions Judge, Bengaluru in Crl. A. No. 1195/2018.
2. I have heard the Senior Counsel Sri Prabhuling K. Navadagi appearing on behalf of the learned counsel for the petitioner-accused and the learned counsel for the respondent-complainant in both the cases.
3. The gist of the complaint as per the case of the complainant before the Court below is that one M/s Media One Global Entertainment Ltd., represented by its Director engaged in the business activities was badly in need of funds to clear the loan amount of Rs.6,00,00,000/- which had been availed from one M/s Sheetal Developers. Accused approached the complainant and requested to save M/s Media One Global Entertainment Ltd., from its debt by lending a sum of Rs.6,00,00,000/- by assuring the complainant that the accused himself would repay the same. On the request and assurance made by the accused, the complainant agreed to clear the loan of said M/s Media One Global Entertainment Ltd., and in furtherance of the assurance by accused, the complainant issued Demand Draft bearing No.013674 dated 17.11.2014 drawn on Axis Bank, Peenya Branch, Bengaluru in favour of M/s Sheetal Developers and the same was en cashed. The accused had assured the complainant and agreed to discharge the said liability and had issued 10 cheques bearing Nos.000201, 000202, 000203, 000204, 000205, 000206, 000207, 000208, 000209, 000210 all dated 12.5.2015 drawn on HDFC Bank Limited, Miller Road, Bengaluru and the same was reduced into writing by an agreement dated 24.11.2014. Subsequently, out of 10 cheques, accused sought return of 3 cheques agreeing to repay the same in cash in due course of time. On the request of the accused, the complainant presented the said cheques for encashment through M/s Syndicate Bank and all the cheques were dishonoured with shara 'Funds Insufficient' on 14.5.2015. Thereafter, the complainant communicated the said fact to the accused, at that time, accused requested to present all seven cheques for encashment. Accordingly, on 23.5.2015 he presented the said cheques for encashment and the same have been dishonoured with shara 'Funds Insufficient' on 25.05.2015. Thereafter, the complainant got issued legal notice dated 12.06.2015. The same was served on the accused. The accused issued reply notice on untenable grounds dated 24.11.2014. Since he became the defaulter, a private complaint was registered against the accused. Thereafter, the Trial Court took cognizance and secured the presence of the accused. After following the due procedure, the plea of the accused was recorded. Accused pleaded not guilty and claims to be tried, as such the trial was fixed.
4. The complainant, in order to prove his case, got examined himself as PW-1 and got marked documents Exs.P1 to P17. Thereafter, accused was examined under Section 313 of Cr. P.C and the accused has not led any evidence nor produced any documents.
5. After hearing the learned counsel for the parties, the Trial Court convicted the accused. Being aggrieved by the same, the accused preferred the appeal and the said appeal also came to be dismissed by confirming the judgment of the Trial Court.
6. The main grounds urged by the learned counsel for the petitioner-accused is that the Trial Court as well as the First Appellate Court have committed grave error in law in taking cognizance of the offence and convicting the accused. It is his further contention that it is nobody's case that the money has been taken by the accused from the complainant. Ex. P1-the agreement entered into between the parties specifically says that the cause of action will arise only at the time
