(Prayer: This Criminal Revision Petition is filed under Section 397 read with Section 401 of Criminal Procedure Code, praying to set aside the Judgment and Order on sentence dated 13.07.2009 passed by the learned XVII ASCJ and XXV ACMM, Mayohall Unit, Bangalore in C.C.No.27698/2007 and to set aside the Judgment dated 11.01.2011 passed in Crl. Appeal No.25080/2009 by the Addl. Sessions Judge and P.O. FTC-III, Mayohall Unit, Bangalore, dismissing the appeal, in the interest of justice.)
Through Physical Hearing/Video Conferencing:
1. The petitioner is an accused in the Court of learned XXV Addl. Chief Metropolitan Magistrate, Mayohall Unit, Bangalore (hereinafter referred to as 'the Trial Court) in C.C. No.27698/2007 who was tried for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, hereinafter referred to as 'the N.I. Act').
2. The summary of the case of the complainant in the Trial Court is that the complainant - Company is engaged in providing logistic services to importers and exporters and also holds stocks of the airway bills for the purpose of exports. In its business transaction, the complainant - company provided airway bill for moving the consignment of accused - company to Mexico and raised an invoice No.0755/2006-07 dated 02.11.2006 for a sum of Rs.3,98,615/-. The accused issued an account payee cheque bearing No.395599 dated 04.12.2006 for the said sum. The complainant presented the same for encashment through its banker and the said cheque bounced with an endorsement 'funds insufficient'. The complainant got issued a legal notice on 18.01.2007 both by 'Registered Post Acknowledgement Due' and under 'Certificate of Posting', informing accused about the dishonour of the cheque and demanding the cheque amount from him. In spite of receipt of notices, the accused did not pay the demanded cheque amount. Hence, the complainant was constrained to file a complaint under S.200 of Criminal Procedure Code against the accused in the Trial Court for the offence punishable under S.138 of the N.I. Act.
Since the accused pleaded not guilty, the trial was held wherein the complainant got himself examined as PW-1 and got marked documents from Exs.P1 to P6. The accused got himself examined as DW-1 and got marked documents from Exs.D1, D1(a), D1(b) and D2. The Trial Court, after hearing arguments from both side and considering the materials on record, by its impugned Judgment of conviction and Order on sentence dated 13.07.2009, convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him accordingly.
3. Aggrieved by the Judgment of the Trial Court, the accused preferred an appeal in the Court of Addl. Sessions Judge, and P.O. FTC - III, Mayohall Unit, Bangalore (for brevity, hereinafter referred to as "the Session Judge's Court") in Crl.A. No.25080/2009. The said Court, by its Judgment dated 11.01.2011 while confirming the Judgment of conviction passed by the Trial Court, dismissed the appeal. Aggrieved by the same, the accused has preferred this revision petition.
4. The Sessions Court and the Trial Court records were called for and the same are placed before the Court.
5. Considering the continuous non appearance of the learned counsel for the respondent, in the best interest of justice, this Court, by its Order dated 13.08.2020 appointed learned counsel Sri Javeed S. as amicus curiae for the respondent in this matter.
6. Heard arguments of the learned counsel for the revision petitioner who made submissions through Video Conferencing as also of the learned amicus curiae for the respondent who is physically present in the Court.
7. Learned counsel for the revision petitioner in his arguments submitted that though he would not dispute the finding of the Trial Court as well the Session Judge's Court that the accused had issued a cheque as per Ex.P1 to the complainant for a sum of Rs.3,98,615/- as a payment towards the invoice at Ex.P2 and that the said cheque came to be dishonoured for the reason of insufficiency of funds as per Ex.P3 and also that demanding the cheque amount the complainant had issued a legal notice as per Ex.P4 and Ex.P5, but he would contend that complainant himself was due to the accused in a sum of Rs.1,95,019/- as per Ex.D2. Further, at the request of the complainant, the accused had also paid in total, a sum of Rs.1,00,000/- to one Sri Ramesh Kumar. Thus, if at all any amount is due from the accused towards the complainant the same is only a sum of Rs.1,03,596/- after deducting Rs.2,95,019 (i.e., Rs.1,95,019 plus Rs.1,00,000/-) from the cheque amount as per Ex.P1 which is Rs.3,98,615/-. However, the Trial Court and the Session Judge's Court failed to appreciate these aspects, but mechanically held the accused guilty for the alleged offence.
8. Learned amicus curiae for the respondent in his arguments submitted that though the complainant has not denied that he owes a sum of Rs.1,95,019/- to the accused, but the said amount was under a different invoice which was under a totally different transaction. That being the case, when there are two different transactions, the accused cannot claim set-off in a proceeding initiated for the offence under S.138 of the N.I. Act. He further submitted that the alleged payment of Rs.1,00,000/- to one Sri Ramesh Kumar by the accused is totally a created story of the accused. As such, the Trial Court as well the Session Judge's Court have rightly disbelieved the said contention of the accused and held him guilty of the alleged offence.
9. The point that arises for my consideration is, "whether the Judgment of conviction and Order on sentence passed by the Trial Court and confirmed by the Session Judge's Court is incorrect and suffers with any illegality or perversity, warranting interference at the hands of this Court?"
10. The finding of the Trial Court as well the Session Judge's Court regarding the fact that the accused, in return to the service rendered by the complainant - company to him, owing a sum of Rs.3,98,615/- as per the invoice dated 02.11.2006 which is at Ex.P2 and the accused issuing a cheque towards the said amount as per Ex.P1 in favour of the complainant and also that the said cheque when presented for realisation came to be returned unpaid with the reason of 'insufficiency of funds' as per Ex.P3 are all being concurrent finding on facts which have not been specifically disputed by the revision petitioner herein, they need not have to be re- appreciated again. Similarly, the finding of the Trial Court as well the Session Judge's Court that the complainant had issued a legal notice as per Ex.P4 to the accused demanding the cheque amount of Rs.3,98,615/- from him which is documented at Exs.P4, P5, P6 and P7 also being a concurrent finding of those Courts which are not seriously disputed in this petition, thus require no re-appreciation. Similarly, the contention of the accused that complainant was due to him in a sum of Rs.1,95,019/- which has been admitted by PW-1 in his cross examination and further documented at Ex.D2 have been taken note of by the Trial Court as well as Session Judge's Court. As such, the same does not require any re-appreciation.
However, according to the learned counsel for the revision petitioner, the said issue was not considered by this Court in its proper perspective. His another contention is the alleged payment of Rs.1,00,000/- by the accused to one Sri Ramesh Kumar at the behest of the complainant.
11. The accused in order to show that complainant was due to pay him a sum of Rs.1,95,019/- has produced a copy of the invoice at Ex.D2 which shows different amounts under different headings like ocean freight, inland haulage, terminal handling charges, documentation fee, handling charges etc. which amount is payable by the complainant to the accused. The complainant in his cross-examination as PW-1 has clearly admitted a suggestion made to him by the accused to the said effect. Therefore the accused has shown that though he has issued a cheque to the complainant as per Ex.P1 for a sum of Rs.3,98,615/-, still, the complainant in turn owes him a sum of 1,95,019/-. However, what has to be noticed here is, the alleged sum of Rs.1,95,019/- was not under the same transaction which has led the accused to issue the cheque at Ex.P1. The demand upon which the said cheque at Ex.P1 was issued to the complainant was Ex.P2 which is an invoice dated 02.11.2006. Thus, as on 02.11.2006, the accused was said to be due in a sum of Rs.3,98,615/- to the complainant. Towards the payment of the same, the accused has issued the cheque for the said amount which is dated 04.12.2006, as per Ex.P1. Whereas, the alleged liability from the complainant towards the accused has arisen at a later date i.e. on 26.12.2006 as could be seen in the invoice at Ex.D2. Thus, these two transactions are two different transactions and by the time the accused issued the cheque as per Ex.P1 to the complainant, there was a legally enforceable debt of the sum of the said cheque amount against the accused by the complainant. At that time, there was no counter liability from the complainant towards the accused of any amount much less, to a sum of Rs.1,95,019/- Therefore, those two transactions being separate transactions which have arisen on different dates, the question of accused claiming set-off of the same in a proceeding initiated for the offence punishable under S.138 of the N.I. Act does not arise. Therefore both the Trial Court as well the Session Judge's Court have rightly held so.
12. The other contention of the learned counsel for the revision petitioner is that the Trial Court and the Session Judge's Court have failed to notice that the accused had paid a sum of Rs.1,00,000/- to one Sri Ramesh Kumar at the instance of the complainant, as such, there was no liability of the accused to pay the cheque amount to the complainant.
As submitted by the learned amicus curiae for the respondent, the said argument of the learned counsel for the petitioner is also not acceptable for the reason that the complainant has not admitted the said contention as true. Further, admittedly, said Sri. Ramesh Kumar has not been examined by the accused as his witness.
Even though the accused has produced his bank's statement at Ex.D1 showing a sum of Rs.35,000/- and another sum of Rs.65,000/- paid to one Sri Ramesh Kumar, both on 12.01.2007, but such transaction has not been admitted by the complainant as the one made towards the demand made by the complainant. In such an event, the accused was required to either produce other cogent evidence in support of his contention or to examine said Sri Ramesh Kumar as his witness. Further, the alleged payment said to have been made to said Sri Ramesh Kumar is also at a later date than the date of the cheque at Ex.P1.
Considering all these reasons, both the Trial Court as well as the S
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ession Judge's Court have rightly held that the defence of the accused that he had paid a sum of Rs.1,00,000/- to one Sri Ramesh Kumar at the behest of the complainant is not proved which is a properly reasoned correct finding. 13. Thus, both the Trial Court as well as the Session Judge's Court have rightly rejected the defence taken up by the accused and have rightly convicted the accused for the alleged guilt. I do not find any illegality, impropriety or perversity in the said finding of those two Courts. The quantum of sentence ordered also being proportionate to the gravity of the proven guilt, there is no necessity for this Court to interfere with the finding given by the Trial Court and the Session Judge's Court. Consequently, I proceed to pass the following: ORDER The revision petition stands dismissed as devoid of merit. The Court while acknowledging the service rendered by the learned Amicus Curiae Sri Javeed S. for the respondent, recommends honorarium of a sum of not less than Rs.3,000/- to him payable by the Registry. Registry to transmit copies of this Order along with Trial Court and Appellate Court records to the concerned Courts, without delay.