K. Rudramurthy vs Krishna Milk Dairy Farm

A.V. Chandrashekara, J.—1. Heard the learned counsel for the revision petitioner. Respondent is duly served, but he has remained absent.

Present revision petition is filed under Section 397 of Cr.P.C. challenging the concurrent findings given in CC. No. 203/2006 and affirmation of the same in the criminal appeal bearing No. 49/2007. A complaint had been filed under Section 138 of N.I. Act before the Court of Additional Civil Judge, (Jr. Dn.) & JMFC, Anekal by the respondent on the ground that the petitioner was due to pay a sum of Rs. 50,000/- towards the Milk business transaction and in lieu of the same, he issued a cheque of Rs. 50,000/- drawn on Indian Overseas Bank, Malleshwaram Branch, Bangalore dated 16.7.2015. The said cheque was presented for encashment and it was returned with an endorsement as "insufficient funds" in the account of this petitioner. Therefore, he got issued a statutory notice calling upon the petitioner herein to pay the amount mentioned in the cheque within 15 days from the date of receipt of the notice, lest appropriate action will be taken to recover the same. Inspite of receipt of the said notice, no amount was paid and hence was constrained to file a complaint before the trial Court for the offence punishable under Section 138 of N.I. Act.

Respondent had appeared before the trial Court and contested the case. The complainant''s Managing Director is examined as PW-1 and accused as DW-1 and 5 exhibits were marked on behalf of the accused. The defence set up in this case is totally denied by the complainant. According to the accused, the cheque in question had been given to one -Gopinath, and that the same has been misused by the respondent herein in collusion with the said Gopinath.

The said complaint came to be allowed essentially on the ground that the accused has failed to rebut the presumption under Sections 118 and 139 of NI Act. Consequently, complaint was allowed sentencing the accused to undergo simple imprisonment for six months and also to pay fine amount of Rs. 60,000/-, out of which a sum of Rs. 55,000/- to be paid in terms of Section 357 of Cr.P.C. As against the judgment and conviction, the appellant preferred an appeal under Section 374 of Cr.P.C. before the FTC-III, Bangalore Rural District, Bangalore in Crl. A No. 49/2007. The said appeal is dismissed, after contest. It is this judgment, which is called in question, on various grounds as set out in this revision petition.

Several grounds have been raised in the appeal memo filed under Section 374 of Cr.P.C. The learned Judge has framed the following point for consideration which is at paragraph No. 9 of the impugned judgment. The same is extract below:

"Whether the order of conviction passed by the Court below in CC. No. 203/2006 is in accordance with law?"

The learned Judge of the First Appellate Court has held that when the signature found on the cheque is admitted, the presumption available under Sections 118 and 139 of NI Act shall not be rebutted. It is this judgment, which is called in question on various grounds as set out in this revision petition.

The First Appellate Court has confirmed the conviction in terms of Section 374 of Cr.P.C. The First Appellate Court dealing with a Civil Appeal under Section 96 of CPC is expected to look into the oral and documentary evidence on record in the right perspective and frame appropriate points for consideration Similar exercise must be done by the First Appellate criminal Court by formulating proper points for consideration as the basis of the grounds raised in the appeal memo as well as raised during the course of submitting arguments.. The entire evidence to be reassessed in its right perspective. The impugned judgment by the First Appellate Court does not even remotely speak about the oral and documentary evidence placed on record by the parties. The judgment of the First Appellate Court is essentially based on the admission of the signature of the accused found on the cheque and nothing beyond that. The said presumption available under Section 118(a) of N.I. Act can be taken into account while reassessing the evidence. When the very evidence on record is not reassessed, this Court is unable to understand has to how the learned Judge can upheld the conviction and sentence.

What is argued by the learned counsel for the petitioner is that payee of the cheque must establish that the cheque has been issued in his favour. Reliance has been placed on record in the case of Milind Shripad Chandurkar v. Kalim M. Khan and Anr. - , AIR 2011 SC 1588.

The case of the complainant is that the accused had Milk Business transaction and therefore he was due to an extent of Rs. 50,000/- and in this regard he issued a cheque in his favour. Nothing is forthcoming about the commercial transaction that this petitioner had with the complainant. This aspect is lightly ignored by the First Appellate Court.

In the light of the non appreciation of the oral and documentary evidence placed on record, there is a glaring legal error apparent on the face of the record. No doubt, revisional jurisdiction of this Court is vested under Section 397 of Cr.P.C is restricted. Even otherwise, the complainant has not produced any document to show that he represents the company as Managing Director of M/s. Krishna Milk Dairy Farm. If he is the Managing Director of the complainant farm which is registered under the provisions of Companies Act, something should have been placed on record to show about his authority to represent on behalf of the Company in order to represent it before the Court.

In the light of the same, the approach adopted by the First Appellate Court is incorrect and improper. Hence, the Judgment of the First Appellate Court will have to be set aside and the matter needs to be remitted to the First Appellate Court to deal with the same in accordance with law in the light of the observation made by this Court. Hence, I pass the following:

ORDER

Revision petition is allowed.

The impugned judgment passed by the First Appellate Court is set aside. The matter is remitted to the Court of Principal Sessions Judge, Bangalore Rural District to dispose of the matter in accordance with law, keeping in mind the observations made by this Court and also decision reported in the case of Milind Shripad Chandurkar v. Kalim M. Khan and Anr. - , AIR 2011 SC 1588.

Parties shall appear before the First appellate Court on 28.02.2015 without fail.