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2022 DIGILAW 295 (KAR)

Violet Menezes v. Sannanayaka

2022-03-04

H.P.SANDESH

body2022
JUDGMENT 1. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent. 2. The factual matrix of the case is that, the son of the complainant by name Kantharaju who is aged about 19 years was working as a coolie under the accused since one year in her form house namely Meenakshi Garden Resorts Private Limited, Kethahalli, H.D.Kote Taluk. On 5/9/2009 at about 8.00 am., the complainant's son died inside the form house of the accused due to electric shock. The accused had unauthorizedly given electric connection in order to protect crops from wild animals. As a result, the complainant gave a complaint and the police registered the case for the offences punishable under Sec. 304 of IPC r/w Ss. 39, 44 and 135 of Indian Electricity Act against the petitioner in Crime No.249/2009. On the spot, the accused had agreed to pay compensation of Rs.3,50,000.00 and paid cash of Rs.15,000.00 to the complainant and the accused in all issued four cheques to the complainant. Out of the said four cheques, two cheques were encashed by the complainant and received Rs.1,00,000.00. When remaining cheques were presented for encashment, those cheques were dishonoured on the ground of "funds insufficient". Immediately, the complainant contacted the accused and the accused requested the complainant to present the said cheques in the last week of December, 2009. Accordingly, when two cheques were presented, the said cheques were dishonoured with endorsement "payment was stopped by the drawer". Hence, legal notice was issued and even after issuance of legal notice, the accused did not repay the amount. Hence, the complaint was filed, took cognizance and the complainant himself was examined as P.W.1 and got marked the documents at Exs.P.1 to P.10. The accused/petitioner herein was examined as D.W.1 and examined two more witnesses as D.W.2 and D.W.3 and got marked the documents at Exs.D.1 to D.6. 3. The trial Court after considering the material on record has convicted the accused for the offence punishable under Sec. 138 of Negotiable Instruments Act, 1881 and ordered to pay fine of Rs.3,75,000.00 and out of fine amount, Rs.3,70,000.00 was ordered to pay to the complainant and Rs.5,000.00 was ordered to adjust towards the expenses of the State. Being aggrieved by the said judgment of conviction and order of sentence, Crl.A.No.162/2012 was preferred before the Appellate Court. Being aggrieved by the said judgment of conviction and order of sentence, Crl.A.No.162/2012 was preferred before the Appellate Court. The Appellate Court on re-appreciation of both oral and documentary evidence has allowed the appeal-in-part and ordered to pay fine of Rs.3,00,000.00 and out of fine amount, Rs.2,95,000.00 was ordered to be paid to the complainant and remaining Rs.5,000.00 was ordered to be paid towards the expenses of State. Being aggrieved by the said order, the present revision petition is filed before this Court. 4. Learned counsel appearing for the petitioner has vehemently contended that first of all there is no debt or liability and the same is also not legally enforceable amount. The learned counsel further submitted that these cheques were issued only on behalf of Shama Rao who is having lease hold rights in respect of the property, in which, electricity connection was taken and already made part payment. Hence, this petitioner is not liable to pay the amount. 5. The learned counsel further submits that there is a presumption under Sec. 139 of N.I.Act and the petitioner has rebutted the evidence of P.W.1 as well as in the witness evidence. Hence, the petitioner is not liable to pay any amount. 6. Per contra, learned counsel appearing for the respondent would submit that it is not in dispute that the respondent has agreed to pay an amount of Rs.3,50,000.00 and part payment was made. Hence, the very contention of petitioner's counsel that there is no privity of contract cannot be accepted. The learned counsel also submitted that apart from cash payment, two cheques were also honourned and now, the petitioner cannot contend that there is no liability on the part of the petitioner. 7. Having heard the respective counsel and on perusal of the material available on record, the points that arise for consideration are as under: (i) Whether the trial Court has committed an error in convicting the accused for the offence punishable under Sec. 138 of N.I.ACT and directing him to pay an amount of Rs.3,75,000.00 and whether it requires interference by this Court. (ii) Whether the Appellate Court has committed an error in partly allowing the appeal and reducing the amount instead of acquitting as contended by the petitioner? (iii) What order? 8. (ii) Whether the Appellate Court has committed an error in partly allowing the appeal and reducing the amount instead of acquitting as contended by the petitioner? (iii) What order? 8. Having heard the respective counsel and also taking into note of the fact that the complainant's son died in the form house belonging to the present petitioner and also admitted to pay an amount of Rs.3,50,000.00 and out of that, an amount of Rs.15,000.00 was paid in cash and another Rs.1,00,000.00 by way of two cheques was also paid. The remaining amount of Rs.2,00,000.00 was not paid and when the cheques were presented, instruction was given to stop the payment. The respondent has also relied upon the documents Exs.D.1 to D.6. It is the case of the petitioner herein also that the property was leased in favour of Sham Rao Gunjigaiah and to that effect, no document is placed before the trial Court though relied upon the documents Exs.D.1 to D.6. The fact that the remaining cheques are not encashed is also not in dispute, but not denied the very death of the complainant's son and agreed to pay an amount. The only contention that as on the date of death of the complainant's son, the lease hold rights were created in favour of Sham Rao Gunjigaiah and to substantiate the same, no material is placed before the court and apart from the cheques issued by the petitioner herself, already two cheques are honored. Hence, the very contention is that there is no privity of contract as contended by the petitioner cannot be accepted. The petitioner has already made part payment. Such being the case, the very contention of the learned counsel for the petitioner that the petitioner is not liable to pay any amount cannot be accepted. 9. The other contention of the learned counsel appearing for the petitioner is that both the courts below have not considered the material on record and passed the perverse order cannot be accepted. The other contention of the petitioner's counsel that the amount determined by both the courts below are on the higher side. 9. The other contention of the learned counsel appearing for the petitioner is that both the courts below have not considered the material on record and passed the perverse order cannot be accepted. The other contention of the petitioner's counsel that the amount determined by both the courts below are on the higher side. The said contention cannot be accepted for the reason that the trial Court has ordered to pay an amount of Rs.3,75,000.00 and the Appellate Court has discussed in detail in paragraph No.36 regarding earlier payment as well as dishonour of cheques and ordered to pay an amount of Rs.3,00,000.00 considering the aspect that about 2 1/2 years have elapsed after issuance of cheques. The Appellate Court has modified the earlier order and restricted to Rs.3,00,000.00. Hence, the Appellate Court has also exercised jurisdiction taking into note of period of pendency of the matter and the matter is also pending from the year 2010. Such being the fact, this Court cannot find fault with the orders passed by both the courts below. Hence, I answer Point Nos.1 and 2 in negative. 10. In order to invoke Sec. 397 r/w 401 of Cr.P.C., there must be perversity in the order and the same is not shown. Both the courts below have considered the material available on record and also defence urged by the petitioner herein. When such being the factual aspect, it is not a fit case to exercise the revisional jurisdiction under Sec. 397 r/w 401 of Cr.P.C. In view of the discussions made above, I pass the following ORDER Criminal revision petition is dismissed. The amount in deposit is ordered to be paid to the respondent on proper identification. The registry is directed to pay the charges of the Amicus Curiae in favour of the Amicus Curiae forthwith.