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2010(1) Bankmann 362 (Kar.)
KARNATAKA HIGH COURT
A.S. Pachhapure, J.
Kuthar Ahmed Bava —Petitioner
versus
S.K. District Co-Operative Fish Marketing Federation Ltd. —Respondent
Cri. Rev. Petn. No. 1196 of 2008
Decided on 2.9.2009
For the Petitioner:Mr. P. Karunakar, Advocate.
For the Respondent:M/s. B.V. Krishna Sanmathi Associates, Advocates.
IMPORTANT POINT
Revisional Court cannot reappreciate evidence routinely.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Conviction and sentence—Trial Court on appreciation of material on record convicted accused for offence punishable under Section 138 and ordered to pay fine of Rs. 60.000/- in default to undergo simple imprisonment for six months—Appeal dismissed by Sessions Court—There is agreement between parties for participation in auction of fish and sea products—Even if contention of petitioner is accepted that amount claimed is beyond security deposit, accused cannot take benefit and seek forfeiture of amount which is due to complainant—In revision High Court has limited power—Unless petitioner makes out such grounds to hold that there is illegality or perversity in order evidence led cannot be re-appreciated—Conviction maintained—However, keeping in consideration condition of petitioner, amount of compensation reduced to Rs. 55,000/- with default stipulation. (Paras 4, 8 to 11)
A.S. Pachhapure, J.—Though the matter posted today for admission with the consent of the Counsel it is taken up for final hearing.
2. The petitioner has challenged his conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter call as ‘Act’ for short), on a trial held by the Judicial Magistrate, First Class, Mangalore and confirmed in appeal before the Sessions Court.
3. The facts relevant for the purpose of this revision are as under:
I will be referring to the parties as per the rank before the Trial Court for the purpose of convenience.
The petitioner herein is the accused, whereas respondent is the complainant who filed the complaint before the Trial Court alleging that the accused owed a sum of Rs. 46,956.70 and to discharge the loan amount the accused issued a cheque dated 30.6.2002 for a sum of Rs. 46,856.70 in favour of the complainant and assured that he has sufficient stands in his account. The complainant presented the cheque through the banker, which was returned with an endorsement of insufficient funds. The complainant sent a notice and the said notice was not claimed by the accused. He did not comply with the notice and in the circumstances the complainant approached the Trial Court to take action under Section, 138 of the Act.
4. The Trial Court took cognizance, process was issued, accused appeared before the Trial Court and after recording the plea the complainant was examined as PW1 and in his evidence the documents Exs.P.1 to P.7 were marked. The statement of the accused was recorded under Section 313 of the Criminal Procedure Code, 1973. He has taken the defence of total denial. He examined DWs. 1 and 2 and got marked Exs. D.1 to D.5 in their evidence. The Trial Court on appreciation of the material on record convicted the accused for the offence punishable under Section 138 of the N.I. Act and ordered to pay fine of Rs. 60.000 in default to undergo simple imprisonment for six months. Aggrieved by the conviction and sentence the accused approached Sessions Court and the appeal came to be dismissed on merits. Aggrieved by the concurrent findings of the conviction, the petitioner has approached this Court in revision.
5. I have heard the learned Counsel for the petitioner and also the respondent. The points that arise for my consideration are:
(1) Whether the conviction of the petitioner for the offence punishable under Section 138 of the Act and the sentence thereon as ordered by the Trial Court and confirmed in the appeal is illegal and perverse?
(2) What order?
6. It is the contention of the learned Counsel for petitioner that the blank cheque was given as a security at the time of agreement-Ex. D.5 and that there is a condition in the said agreement that the transactions between the parties shall not exceed Rs. 2 lakh for which a security deposit was given and in the circumstances he submits that the complainant misused the blank cheque given and though there was no transaction exceeding the amount of Rs. 2 lakh claimant has misused the cheque which was given as a security. On these grounds he sought for setting aside the conviction and sentence.
7. Per contra, learned Counsel for the respondent submits that the accused has admitted the liability under letter- Ex. P.7 and he issued cheque. Ex. P.1 for the amount of Rs. 46,956.70 which was the amount due as per Ex. P.7 and though the notice was issued after the return of the cheque for insufficient funds the accused did not comply with the demand and submits that there is consistent, cogent and acceptable material for the offence punishable under Section 138 of the Act and in view of the concurrent findings of the conviction, the petitioner has not made out any such grounds to warrant interference.
8. I have scrutinised the evidence led by the parties and also the documents admitted in evidence. The fact that there is an agreement between the parties as per Ex.D.5 for participation
