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2011 DIGILAW 215 (KAR)

V. Raghavendra Rao v. Thukaram S. Rao

2011-02-23

K.N.KESHAVANARAYANA

body2011
ORDER K.N. KESHAVANARAYANA, J.—These two revision petitions arise out of common judgment of the Courts below. As the parties to these petitions are common, these petitions were heard together and are disposed of by this common order. 2. In these two revision petitions filed under Section 397(2) of Code of Criminal Procedure, the petitioner has challenged the legality and correctness of the common judgment and order dated 28.4.2007 passed by the II Additional Civil Judge (Jr. Dn.) and JMFC, Mangalore In C.C. Nos. 484/2006 and 485/2006 convicting the petitioner/accused under Section 138 of the Negotiable Instruments Act and sentencing him to pay fine of Rs. 32,000/- and Rs. 1,10,000/- respectively in each of these cases and judgment dated 27.7.2010 passed by the Principal Sessions Judge, Dakshina Kannada, Mangalore in Crl. A. Nos. 131/2007 and 132/2007 dismissing the appeals filed by the petitioner and affirming the judgment of conviction and order of sentence passed by the Trial Court. 3. The common respondent filed two complaints against the common petitioner alleging offence punishable under Section 138 of Negotiable Instruments Act, According to the case of the complainant, he is a Chartered Accountant, by profession, so also the accused and they carried on the said profession in partnership from 1995 to 2002 at Mangalore in a rented premises which he had taken on rent earlier by paying an advance of Rs. 22,000/- to the landlord of the premises and with effect from 31.3.2003, the partnership came to an end and at that time it was agreed that, the accused should pay Rs. 22,000/- to the complainant being the refund of the advance he had paid to the landlord of the premises and also a sum of Rs. 1 lakh towards the share of the goodwill of the complainant in the partnership business. In pursuance to the said agreement, the accused issued two cheques one for Rs. 22,000/- and another for Rs. 1 lakh promising that those cheques will be honoured when presented for encashment. But when the cheques were presented for encashment they were returned with the banker’s endorsement ‘insufficient funds’ and inspite of service of notices, the accused failed to pay the amount covered under the cheques. The accused pleaded not guilty for the accusations made against him in each of the cases and claimed to be tried. But when the cheques were presented for encashment they were returned with the banker’s endorsement ‘insufficient funds’ and inspite of service of notices, the accused failed to pay the amount covered under the cheques. The accused pleaded not guilty for the accusations made against him in each of the cases and claimed to be tried. The power of attorney holder of the complainant was examined as P.W. 1 to substantiate the case of the complainant and also produced documentary evidence as per Exs. P1 to P13. In defence, the accused examined himself as DW 1 and produced Ex. D1 a copy of the acknowledgement for having filed the Saral form, to the Income Tax Department. 4. The defence of the accused was that the agreement as projected by the complainant did not come into existence at any point of time and that he had never agreed either to refund the advance said to have been paid to the landlord or the goodwill to the complainant and that cheques in question have not been issued by him to the complainant for discharge of any such liability due by him to the complainant. It was his further defence that he used to keep the signed blank cheques in the table drawer in his office and two such signed blank cheques appear to have landed in the hands of the complainant which appears to have been misused by him. 5. Learned Magistrate after hearing both sides and on appreciation of oral and documentary evidence rejected the defence plea and accepted the case of the complainant and found the accused guilty of the offence punishable under Section 138 of Negotiable Instruments Act and accordingly convicted him for the said offence and sentenced him to pay fine. 6. The Appellate Court affirmed the judgment of conviction passed by the Trial Court by dismissing the appeals filed by the accused. It is against these common judgment of the Courts below, the petitioner has presented these two revision petitions. 7. I have heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent. Perused the judgment of the Courts below. 8. It is the submission of learned counsel for the petitioner that at no point of time any agreement came into existence between the parties, as such, there was no occasion for the accused to issue any cheques to the complainant. Perused the judgment of the Courts below. 8. It is the submission of learned counsel for the petitioner that at no point of time any agreement came into existence between the parties, as such, there was no occasion for the accused to issue any cheques to the complainant. It is his further submission that assuming for the purpose of argument that the cheque for Rs. 1 lakh had been issued towards the value of the goodwill, the same not being a legally recoverable debt, the dishonouring of the said cheque cannot constitute an offence under Section 138 of Negotiable Instruments Act. It is his further submission that in the absence of any acceptable evidence placed by the complainant that his share of goodwill in the partnership had been sold and purchased by the accused for Rs. 1 lakh, the Courts below are not justified in holding the accused guilty of the offence. It is also his submission that having regard to the evidence on record, the defence plea is highly probable and acceptable, as such, the Courts below are not justified in convicting the accused. 9. Learned counsel for the complainant sought to justify the judgment of the Courts below and contended that this Court sitting in revision under Section 397 of Code of Criminal Procedure cannot, reappreciate the evidence and record a different finding. It is her submission that since it is not pointed out that, the Courts below have committed any error of law or jurisdiction, this Court’s interference in exercise of the revisional jurisdiction is not warranted. She also drew the attention of this Court to the admissions made by the accused while examining himself as DW 1 and contended that the accused in categorical terms has admitted that the complainant had paid the advance of Rs. 22,000/- to the landlord much prior to the partnership coming into existence and that he had purchased goodwill of the complainant. Therefore, in the light of the admission made by the accused, the case of the complainant that the cheques in question had been issued by the accused for payment of all these amounts is satisfactorily proved, as such, Courts below have not committed any error of law or jurisdiction in recording the finding of guilt against the accused. Therefore, she sought for dismissal of the revision petitions. 10. Therefore, she sought for dismissal of the revision petitions. 10. I have bestowed my anxious consideration to the submissions on both sides. Perusal of the judgment of the Courts below as well as the copies of the depositions, made available, indicates that the accused has admitted the fact that he and the complainant being Chartered Accountants by profession, carried on the said profession in partnership at Mangalore in a rented premises. The perusal of the evidence of the accused as DW 1 clearly indicates that the complainant had taken the office premises on rent much prior to partnership firm coming into existence and the complainant alone had paid the advance payable to the landlord. The accused has also admitted that he did not pay any amount to the landlord towards the advance for the office premises. The accused has also admitted in his evidence that the partnership came to an end with effect from. 31.3.2003 and that he purchased the goodwill of the complainant. Of course it is his further say that the partnership came to an end with effect of 31.3.2003 subject to complainant signing the agreement within 15 days from the date on which he (accused) would send the agreement, to the complainant for his signature. However, in his evidence, the accused has not asserted that the complainant did not return the agreement duly signed within the period agreed. In the light of the very evidence of the accused, in my opinion, the Courts below are justified in holding that the partnership came to an end on or before 31.3.2003 and in that regard the agreement, came into existence between the parties wherein the accused agreed to refund the advance amount of Rs. 22,000/- paid by the complainant to the landlord and a sum of Rs. 1 lakh towards the share in the goodwill of the complainant in the partnership. It is towards these amounts, the accused has issued the cheques. Admittedly, the cheques in question bear the signatures of accused. The defence that he was in the habit of keeping signed blank cheques in his table drawer in the office is too far fetched argument for acceptance. The accused is a Chartered Accountant. It is towards these amounts, the accused has issued the cheques. Admittedly, the cheques in question bear the signatures of accused. The defence that he was in the habit of keeping signed blank cheques in his table drawer in the office is too far fetched argument for acceptance. The accused is a Chartered Accountant. It is highly difficult and unnatural to accept that a Chartered Accountant would keep in the office table drawer even without locking the signed blank cheques so that it could be accessed by any other person. Even according to the accused from 1995 to 2003 the complainant was in a foreign country. If that is so, it is not explained by the accused as to how these two cheques could land in the hands of the complainant. It is also not propobalised by the accused that these two cheques do not relate to the year 2002-2003. Having regard to the evidence on record, the Courts below are justified in drawing the presumption under Section 139 of the Negotiable Instruments Act. Once it is shown that the accused had purchased goodwill of the complainant in the partnership and it was agreed that the accused should refund the advance amount paid to the landlord, it becomes liability on the part of the accused due to the complainant. Therefore, it cannot be said that the cheques in question are not issued, for discharge of any debt or liability. The accused was liable to pay the said amounts to the complainant and for discharging all the liability he had issued these two cheques. There is no dispute that these two cheques when presented for encashment returned with a banker’s endorsement ‘insufficient funds’. There is also no dispute that the complainant had complied with the statutory requirements in issuing notices and waiting for the prescribed period and then filing of complaint with the statutory period. Admittedly, the accused has not paid the amount covered under the cheques within the period allowed under law after receipt of the notice. Therefore, in my opinion, the judgment of the Courts below does not suffer from any perversity or illegality nor the Courts below have committed any error of law or jurisdiction in holding accused guilty of the offence under Section 138 of Negotiable Instruments Act. In this view of the matter, I find no ground to entertain this petition. Accordingly, these petitions are rejected.