w w w . L a w y e r S e r v i c e s . i n

A.K. Aijaz Ahmed v/s Naijaz Ahmed Shariff

Company & Directors' Information:- AHMED AND CO PRIVATE LIMITED [Strike Off] CIN = U27320DL1997PTC086861

Company & Directors' Information:- T AHMED & CO PVT LTD [Strike Off] CIN = U51900WB1947PTC014930

Company & Directors' Information:- M S AHMED & CO PVT LTD [Active] CIN = U70101WB1932PTC007608

Company & Directors' Information:- J. AHMED AND COMPANY LIMITED [Liquidated] CIN = U99999MH1954PLC009225

    Criminal Revision Petition No. 1386 of 2010

    Decided On, 10 May 2019

    At, High Court of Karnataka


    For the Petitioner: G.B. Nandish Gowda, R.B. Sadasivappa, Advocates. For the Respondent: R. Abdul Reyaz Khan, Advocate.

Judgment Text

(Prayer: This Criminal Revision Petition is filed under Section 397 read with 401 Cr.P.C. praying to set aside the order dated 15.12.2009 passed by the XIII Additional Chief Metropolitan Magistrate, Bangalore in C.C.No.30097/1999 and order dated 26.08.2010 passed by The Presiding Officer, FTC (Sessions)-Xi, Bangalore in Crl.A.No.22/2010 and acquit the petitioner.)

1. This Criminal Revision Petition is filed by the petitioner being aggrieved by the judgment of conviction and sentence passed by the XIII Additional Chief Metropolitan Magistrate, Bengaluru in C.C.NO.30097/1999 for having convicted and sentenced to pay fine of Rs. 2,60,000/- and in default of payment of fine, he shall undergo simple imprisonment for 6 months for the offence punishable under Section 138 of Negotiable Instrument Act (referred as N.I.Act) and the same was confirmed by the Fast Track Court (Sessions)-XI, Bengaluru in Criminal Appeal No.22/2010 dated 26.08.2010.

2. Heard both the learned counsel and perused the records.

3. The ranks of the parties before the trial Court is retained for the sake of convenience.

4. The factual matrix of the case of the complainant in brief is that the complainant is the Karnataka Silk Marketing Board Limited. It is a Government Company registered under the companies Act dealing with supply of Silk to its various customers on credit basis. The accused, one of the customer of the complainant-Board, has availed credit facility from the complainant Board by executing necessary documents like Hundi agreements etc., As per the terms of the agreement, the accused required to pay the bill amount along with the agreed rate of interest within 90 days. The complainant supplied the raw silk to the accused and to repay the bill amount, the accused had issued two cheques for Rs.2,56,000/- drawn in State Bank of Mysuru, Ramanagara vide cheque bearing No.852769, dated 20.01.1998 and another cheque bearing No.852770, dated 20.02.1998 for Rs.1,28,000/- each. The cheques were issued as the accused was due for the sum of Rs.2,93,490/- as on 25.03.1998. When the cheques were presented by the complainant for realization, the same was dishonoured on 14.03.1998, for the reasons that the payment was stopped by the drawer and it was intimated to the complainant on 18.03.1998. Then a legal notice was issued to the accused. The same was served but the accused not chosen to make the payment. Then a complaint came to be lodged before the Magistrate under Section 200 of Cr.P.C. and after taking cognizance, the accused summoned to appear before the Court and the accused pleaded not guilty. Then, on behalf of the complainant, two witnesses have been examined and got marked 28 documents. The accused also examined under Section 313 of Cr.P.C. The accused also examined himself and another witness as DWs.1 and 2 and got marked 24 documents. After hearing the arguments, the trial Court found the accused guilty and convicted and sentenced to pay fine as stated supra.

Being aggrieved by the same, the accused filed an appeal before the Fast Tract Court (Sessions)-XI, Bengaluru in Crl.A.No.22/2010 which came to be dismissed on 26.08.2010.

Being aggrieved by the same, the present Revision Petition is filed before this Court.

5. The learned counsel for the petitioner contended that the trial Court failed to appreciate the evidence on record. The payments made by the accused were not adjusted in the account. There is variation in the statement of accounts. As per the evidence of complainant's witness, the due of Rs.2,95,000/-, the cheques were received for Rs.2,56,000/- in the absence of quantity of Silk supplied to the accused, the liability of said payment required to be payable to the complainant does not arise. As per the Hundi agreement, the transaction shall not exceed Rs.66,000/- per month. There is no reference in Ex.P7 in respect of the amount paid by the accused under Exs.D1 to D3. The complainant witnesses admitted the alteration in the new ledger. There were number of payments made by the accused which were all not shown as payments in the ledger. Three payments were admitted by the complainant witnesses. These aspects were not appreciated by the trial Court and the Appellate Court. Therefore, prayed for setting aside the conviction held against the accused.

6. Per contra, the learned counsel for the respondent contended that the complainant is a Board maintaining all the accounts in proper manner. The amounts received from the accused were all adjusted in the books and in the payment and as on the date, the accused was due for the said amount and he has issued the cheques alongwith the letters. The same were marked before the Court below. The documents were appreciated by the trial Court and held guilty. Therefore, this Court not required to interfere with the judgment of the Courts below. Hence, prayed for dismissing the revision petition.

7. Upon hearing the arguments, perused the evidence on record and the impugned judgments. It is well settled that this Court cannot re-appreciate the evidence on record when there is concurrent findings of the Courts below, unless there is any illegality or error committed by both the Courts below which calls for interference by this Court. On perusal of the records, it is not in dispute that the complainant-Board is a Government company registered under the Companies Act and it is dealing with distribution of Silk to its customers on credit basis. PW.1 is the Branch Officer, who was examined as witness on the authorization issued by the General Manager of the Board and the accused was the customer. He used to purchase the Silk Yarn on credit basis and he also executed Hundi agreement as per Ex.P11. Ex.P11-agreement clearly goes to show that the supply of Silk to the purchaser on credit basis shall not exceed Rs.2,00,000/- per month and it shall not exceed Rs.66,000/- at any given time and as per condition 9 of Hundi Agreement, if the purchaser commits default of 5 invoices, he is not eligible for credit facility for a period of 3 months which is also not in dispute. As per condition-4 of the agreement, the duration for credit was 90 days and thereafter, 5% interest for delayed payments and 3% on the overdue amount towards recovery charges. Ex.P12 is the Power of Attorney executed by the accused persons. Ex.P13 is the joint affidavit of the accused in respect of the details of the immovable property owned by the accused which was deposited by the accused as per the agreement. Ex.P7 is an extract of the account ledger, in order to show that the accused was due for Rs.2,93,490/- as on 25.03.1998. Exs.P14 to P19 are the receipts showing the Silk Yarn supplied to the accused on various dates with due date mentioned there in. The invoices also marked as Exs. P14 to 19 and Exs.P20 to 25 clearly corroborates with each other in respect of supply of Silk Yarn to the accused on various dates. Ex.P26 is the letter of undertaking given by the accused for issuance of above said two cheques which were dishonoured and marked before the Court as per Exs.P2 and 3. The learned counsel for the petitioner contented that Rs.20,000/- received by the complainant by cash on 21.11.1997. The same was not considered by the complainant. But Ex.P7 clearly goes to show that the said amount of Rs.20,000/- received by cash has been shown as credit in the account of the accused. The evidence of the PWs.1 and 2 were not at all impeached by the accused in the cross-examination. Though, PW.2 admitted that there is some alteration in Ex.P7 and there is some corrections made in Ex.P28, the same was admitted by PW.2 in the cross-examination. The accused also taken contention that he has to pay only Rs.40,000/- as due and the cheques were taken by force. But in the cross- examination of DW.1, the accused admitted the signatures in the invoice bill and also undertakings as per Exs.P14 to P19. He also admitted the signatures on Exs.P20 to P25. These documents and admission of signatures go to show that the accused purchased the Silk Yarn on credit basis on various dates; the accused was due; the invoices and the bill amount were shown in the Ex.P28-ledger account. These documents were appreciated by both the Courts below.

8. The accused mainly relied upon Ex.D2, a bill payment for Rs.47,422/- which has been made by him on 30.11.1995 was not shown in the Ex.P7. The same was admitted by PW.1 in Ex.D3. A sum of Rs.53,340/- paid on 20.01.1996 was also not shown in the Ex.P7. The same was admitted by PW.1 in the cross-examination. However, subsequently Ex.P28-new ledger book was produced and marked before the Court wherein these two payments were shown as receipts in the account of the accused and the amount were deducted in the accounts. The same was appreciated by both the Courts below. Ex.P7 is only an entry shown about the purchase and the interest, whereas, Ex.P28 is the detailed accounts extract of the accused which clearly corroborates the evidence of PW.2. The accused also made correspondence with the complainant by replying to the notice requesting the complainant not to proceed with the case. The accused also tried to file the case against the complainant before the Magistrate at Ramanagara, but failed. From these records, it is clear that the accused admitted the issuance of cheques and the transaction between the complainant and the accused.

9. The complainant-Board is a Government Company which has supplied the Silk to the accused on credit basis on vario

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us dates and to discharge the said amount, the accused issued cheques, which are legally payable debt to the Company. Once the issuance of cheque is admitted, the signatures are admitted and the transaction was proved, the presumption available to the complainant is required to be rebutted by the accused, but from the evidence of the defendant witness, not able to rebut the legal presumption available to the complainant. All the documents produced by the accused as well as complainant were all appreciated by both the Courts below in detail and the accused was held guilty for the offence punishable under Section 138 of N.I. Act. There is no illegality or error committed by both the Courts below while giving findings. Therefore, this Court is not required to interfere with the concurrent findings of the Courts below. The Revision Petition is devoid of merits and hence, the same is liable to be dismissed. Accordingly, the Criminal Revision Petition is dismissed. Office is directed to transmit the LCR for taking further course of action.