Extracted from the PDF above. The PDF is authoritative.
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NC: 2025:KHC-D:4038 CRL.RP No. 100027 of 2023 C/W CRL.RP No. 100026 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CRIMINAL REVISION PETITION NO.100027 OF 2023 (397(Cr.PC)/438(BNSS)
C/W
CRIMINAL REVISION PETITION NO.100026 OF 2023 (397(Cr.PC)/438(BNSS)
IN CRL.RP.NO.100027/2023:
BETWEEN:
1 . SHRI BASAVESHWAR URBAN CREDIT SOUHARD SAHAKARI NIYAMIT SANKESHWAR, MAIN BRANCH SITUATED AT MALI BUILDING, NIDASOSI ROAD, SANKESHWAR, TAL. HUKKERI, DIST. BELAGAVI, REPRESENTED BY ITS CEO SHRI B.K. KAMAGOUDAR, AGE: 40 YEARS, OCCUPATION: SERVICE, R/O. MALI BULIDING, NIDASOSI ROAD, R. SANKESHWAR, TAL. HUKKERI, DIST. BELAGAVI. 2 . SHRI BASAVESHWAR URBAN CREDIT SOUHARD SAHAKARI NIYAMIT SANKESHWAR, MAHANTESH NAGAR BRANCH, BELAGAVI, REPRESENTED BY ITS MANAGER, SHRI SHRIDHAR VITTAL HANABAR, AGE: 27 YEARS, OCCUPATION: SERVICE, R/O. MANTESH NAGAR, BELAGAVI. … PETITIONERS (BY SMT.CHETANA S. BIRAJ, ADVOCATE)
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AND:
1 . 1A. 1B. 1C. SHRI BASAVARAJ S/O. NARASAPPA SHINDHE, SINCE DECEASED BY HIS LRS.,
SMT. UMA W/O. BASAVARAJ SHINDHE, AGE: 68 YEARS, OCC. HOUSEWIFE, R/O. PRATHAMESH APARTMENT, CTS NO. 7314, FLAT NO. S-1, ANJANEY NAGAR, SECTOR NO.10, NEAR SIDANAL HOUSE, M.M. EXTENSION, BELAGAVI-590016. SRI SATISH S/O. BASAVARAJ SHINDHE, AGE: 41 YEARS, OCC. PRIVATE JOB, R/O. PRATHAMESH APARTMENT, CTS NO. 7314, FLAT NO. S-1, ANJANEY NAGAR, SECTOR NO.10, NEAR SIDANAL HOUSE, M.M. EXTENSION, BELAGAVI-590016. SRI MOHAN S/O. BASAVARAJ SHINDHE, AGE: 37 YEARS, OCC. PRIVATE JOB, R/O. PRATHAMESH APARTMENT, CTS NO. 7314, FLAT NO. S-1, ANJANEY NAGAR, SECTOR NO.10, NEAR SIDANAL HOUSE, M.M. EXTENSION, BELAGAVI-590016. 2 . SHRI BASAVESHWAR URBAN CREDIT SOUHARD SAHAKARI NIYAMIT SANKESHWAR, SHANIVARKUT BRANCH, BELAGAVI, REPRESENTED BY ITS MANAGER, SHRI NAMADEV MARUTEPPA NARASINGOL, AGE: 38 YEARS, OCCUAPTION: AGRICULTURE, R/O. A/P. SULDHAL, TAL. GOKAK, DIST. BELAGAVI-591101. … RESPONDENTS
(BY SRI SRINAND A. PACHCHAPURE, ADVOCATE FOR R1(A TO C);
R2-NOTICE SERVED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. SEEKING TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT DATED
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21.12.2022 PASSED BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI, AT: BELAGAVI IN CRIMINAL APPEAL NO. 257/2022 IN CONFIRMING THE CONVICTION UNDER SECTION 138 OF N.I. ACT AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 02.09.2022 PASSED BY THE J.M.F.C. VIII, BELAGAVI, IN C.C.NO.
402/2019 IN CONVICTING THE PETITIONER UNDER SECTION 138 N.I. ACT. IN CRL.RP.NO.100026/2023:
BETWEEN
1 . SHRI BASAVESHWAR URBAN CREDIT SOUHARD SAHAKARI NIYAMIT SANKESHWAR, MAIN BRANCH SITUATED AT MALI BUILDING, NIDASOSI ROAD, SANKESHWAR, TAL. HUKKERI, DIST. BELAGAVI, REPRESENTED BY ITS CEO SHRI B.K. KAMAGOUDAR, AGE: 40 YEARS, OCCUPATION: SERVICE, R/O. MALI BULIDING, NIDASOSI ROAD, R. SANKESHWAR, TAL. HUKKERI, DIST. BELAGAVI. 2 . SHRI BASAVESHWAR URBAN CREDIT SOUHARD SAHAKARI NIYAMIT SANKESHWAR, MAHANTESH NAGAR BRANCH, BELAGAVI, REPRESENTED BY ITS MANAGER, SHRI SHRIDHAR VITTAL HANABAR, AGE: 27 YEARS, OCCUPATION: SERVICE, R/O. MANTESH NAGAR, BELAGAVI. ... PETITIONERS (BY SMT.CHETANA S. BIRAJ, ADVOCATE)
AND
1 . 1A. SHRI BASAVARAJ S/O. NARASAPPA SHINDHE, SINCE DECEASED BY HIS LRS.,
SMT. UMA W/O. BASAVARAJ SHINDHE, AGE: 68 YEARS, OCC. HOUSEWIFE, R/O. PRATHAMESH APARTMENT, CTS NO. 7314, FLAT NO. S-1, ANJANEY NAGAR, SECTOR NO.10, NEAR SIDANAL HOUSE, M.M. EXTENSION, BELAGAVI-590016. - 4 -
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1B. 1C. SRI SATISH S/O. BASAVARAJ SHINDHE, AGE: 41 YEARS, OCC. PRIVATE JOB, R/O. PRATHAMESH APARTMENT, CTS NO. 7314, FLAT NO. S-1, ANJANEY NAGAR, SECTOR NO.10, NEAR SIDANAL HOUSE, M.M. EXTENSION, BELAGAVI-590016. SRI MOHAN S/O. BASAVARAJ SHINDHE, AGE: 37 YEARS, OCC. PRIVATE JOB, R/O. PRATHAMESH APARTMENT, FLAT NO.S-1, CTS NO.7314, ANJANEY NAGAR, SECTOR NO.10, NEAR SIDANAL HOUSE, M.M. EXTENSION, BELAGAVI-590016. 2 . SHRI BASAVESHWAR URBAN CREDIT SOUHARD SAHAKARI NIYAMIT SANKESHWAR, SHANIVARKUT BRANCH, BELAGAVI, REPRESENTED BY ITS MANAGER, SHRI NAMADEV MARUTEPPA NARASINGOL, AGE: 38 YEARS, OCCUAPTION: AGRICULTURE, R/O. A/P. SULDHAL, TAL. GOKAK, DIST. BELAGAVI. … RESPONDENTS
(BY SRI SRINAND A. PACHCHAPURE, ADVOCATE FOR R1 (A TO C);
R2-NOTICE SERVED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH UNDER SECTION 401 OF CR.P.C. SEEKING TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT DATED 21.12.2022 PASSED BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE, BELAGAVI, AT: BELAGAVI IN CRIMINAL APPEAL NO. 256/2022 IN CONFIRMING THE CONVICTION UNDER SECTION 138 OF N.I. ACT AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 02.09.2022 PASSED BY THE J.M.F.C. VIII, BELAGAVI, IN C.C.NO. 160/2019 IN CONVICTING THE PETITIONERS UNDER SECTION 138 N.I. ACT.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 21.02.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE THE FOLLOWING:
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CAV ORDER
(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)
Crl.R.P.no.100027/2023 is filed challenging
judgment/order dated 21.12.20222 passed by IV Addl. District and Sessions Judge, Belagavi, (‘Appellate Court’, for short) in Crl.A.no.257/2022 and judgment of conviction and order of sentence dated 02.09.2022 passed by VIII JMFC, Belagavi (‘Trial Court’, for short) in C.C.no.402/2019.
2. While Crl.R.P.no.100026/2023, challenging
judgment/order dated 21.12.20222 passed by IV Addl. District and Sessions Judge, Belagavi, (‘Appellate Court’, for short) in Crl.A.no.256/2022 and judgment of conviction and order of sentence dated 02.09.2022 passed by VIII JMFC, Belagavi (‘Trial Court’, for short) in C.C.no.160/2019 is filed. 3. Smt.Chetana S. Biraj, learned counsel for petitioners submitted that accused no.1 to 3 (petitioners and respondent no.2), were employees of Shree Basaveshwar Urban Credit Souhard Sahakari Niyamit (‘Society’ for short). Respondent (complainant) had filed private complaint under Section 200 of
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CrPC, stating that after his retirement from HESCOM, he had kept retirement money i.e. Rs.35,00,000/-, in deposit with Society on 07.08.2018, as it was offering higher rate of interest on fixed deposits. It was stated, accused no.1 and 2 were working as Managers of society, while accused no.3 was its Chief Administrative Officer (‘CAO’ for short) and was responsible for its day to day affairs. It was further stated, complainant was informed that date of maturity of deposit was 07.09.2019, when he would be paid total maturity amount of Rs.39,37,500/-. But, on 20.02.2019, when he approached Society for maturity amount, accused collected original fixed deposit receipts and issued two cheques, one bearing no.855727 dated 28.02.2019 for Rs.20,64,055/-, and other bearing no.855728 dated 31.03.2019 for Rs.15,67,726/-, both drawn on Karnataka Bank, Malmaruti Extn. Branch, Belagavi. 4. It was stated, cheque no.855727 was presented on same day for collection, returned dishonored with endorsement ‘insufficient funds’ on 22.02.2019. Therefore, he got issued legal notice dated 28.02.2019 demanding payment within 15 days. Despite service of notice on accused on 28.02.2019, there was no repayment till 15.03.2019 and thereby committed
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offence punishable under Section 138 of Negotiable Instruments Act, 1881 (‘NI Act’ for short). Therefore, he filed private complaint on 25.03.2019. After recording sworn statement and receiving documents, cognizance was taken in CC.no.160/2019 and summons issued, accused appeared and pleaded not guilty. 5. During trial, complainant examined himself as PW1 and got marked Exs.P1 to P24. Petitioner cross-examined PW1 and got marked Exs.D1 to D3 in confrontation. Thereafter, he was apprised of incriminating circumstances. He denied all circumstances and did not lead rebuttal evidence. 6.
On consideration, trial Court convicted accused no.1 to 3 for offence punishable under Section 138 of NI Act and sentenced to pay fine amount of Rs.26,00,000/- and in default of payment to undergo simple imprisonment for one year six months each. Aggrieved thereby, accused no.1 and 3 filed Crl.A.no.256/2022 on several grounds. But, same was dismissed without proper consideration on 21.12.2022. 7. Similarly, cheque no.855728 was presented on same day for collection, returned dishonored with endorsement
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‘insufficient funds’ on 17.06.2019. Therefore, he got issued legal notice dated 26.06.2019 demanding payment within 15 days. Despite service of notice on accused on 28.06.2019, there was no repayment within time and thereby committed offence punishable Section 138 of NI Act. Therefore, he filed private complaint on 01.08.2019. After recording sworn statement and receiving documents, cognizance was taken in CC.no.402/2019 and summons issued, accused appeared and pleaded not guilty. 8. During trial, complainant examined himself as PW1 and got marked Exs.P1 to P28. But, petitioners neither entered witness-box nor produced any documents to substantiate their case. Thereafter, he was apprised of incriminating circumstances. He denied all circumstances and did not lead rebuttal evidence. 9. On consideration, trial Court convicted accused no.1 to 3 for offence punishable under Section 138 of NI Act and sentenced to pay fine amount of Rs.21,00,000/- and in default of payment to undergo simple imprisonment for one year six months each. Aggrieved thereby, accused no.1 and 3 filed
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Crl.A.no.257/2022 on several grounds. But, same was dismissed without proper consideration on 21.12.2022. 10. Smt.Chetana S. Biraj, learned counsel for petitioners at outset submitted, complainant’s grievance was against Society.
As per provisions of Section 31 (2) (c) of Karnataka Souharda Sahakari Act, 1997, (‘Act’ for short) and Bye-law no.55, CAO was empowered to operate bank accounts, sign negotiable instruments etc. Further, subject matter of revision petitions i.e. cheques in question were by two signatories. However, notices were not issued to both signatories and CAO, which was fatal defect, by relying on decision of High Court of Uttarakhand in case of Garhwal Mandal Vikas Nigam Ltd. v. Mata Garg & Co., reported in 2010 SCC OnLine Utt 1231 held as follows:
“22. Now, coming to the contention of the learned counsel for the applicants that no mandatory notice was issued to the applicant nos. 2 and 3 by the respondent no. 1 as prescribed under Section 93 of the Act is concerned, I am of the considered view whenever any person is sought to be made liable for an offence under Section 138 read with Section 141 of the Act, service of statutory notice on the person sought to be made liable is essential amongst other essential ingredients. I am fortified in my view by the Apex Court judgment in the case of “S.M.S. Pharmaceuticals Ltd. v. Neeta
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Bhalla” [(2005) 8 Supreme Court Cases 89]. In that case, the Apex Court while considering the provisions of Sections 138 and 141 of the Act, has observed at the foot of paragraph no. 2 as under : -
“It will be seen from the above provisions that Section 138 casts criminal liability punishable with imprisonment or fine or with both on a person who issues a cheque towards discharge of a debt or liability as a whole or in part and the cheque is dishonoured by the bank on presentation. Section 141 extends such criminal liability in case of a company to every person who at the time of the offence, was in charge of, and was responsible for the conduct of the business of the company.
By a deeming provision contained in Section 141 of the Act, such a person is vicariously liable to be held guilty for the offence under Section 138 and punished accordingly. Section 138 is the charging section creating criminal liability in case of dishonour of a cheque and its main ingredients are:
(i) issuance of a cheque, (ii) presentation of the cheque, (iii) dishonour of the cheque, (iv) service of statutory notice on the person sought to be made liable, and (v) non-compliance or non-payment in pursuance of the notice within 15 days of the receipt of the notice.”
11. She also relied on decision in case of SMS Pharmaceuticals Ltd. v. Neeta Bhalla, reported in (2005) 8 SCC 89 held at para 19 as follows:
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“(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied. (b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases. (c) The answer to Question (c) has to be in the affirmative.
The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the
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incriminating act and will be covered under sub- section (2) of Section 141.” (emphasis supplied)
12. It was submitted as per bye-laws, any cheque issued by society was to be placed before Board and only after approval cheque could be executed and issued by CAO. In absence of above procedure, cheque issued be invalid, unenforceable and not binding on Society. Therefore, complainant could not sustain claim based on such cheque. 13. It was submitted, impugned judgments/orders passed by trial Court suffered from yet another material irregularity. It was submitted, after recording of complainant’s evidence, incriminating material was put to accused and their statement under Section 313 of CrPC was recorded. Thereafter, they did not lead evidence. Therefore, proceedings had progressed to stage of arguments, when complainant filed applications for recalling of PW1 and for marking of additional documents. In CC.no.160/2019, statement of accused was recorded on 06.11.2019. After they denied entire incriminating material as false, it was posted for defence evidence. On 06.12.2019 defence evidence was taken as ‘nil’ and matter was
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posted for arguments. On 02.01.2020, application for recalling of PW1 was filed. On 22.02.2020, another application was filed for marking of additional documents.
Applications were allowed on same day and on 28.02.2019, further evidence was recorded with marking of Ex.P16 and Ex.P22 (a). Thereafter on 21.04.2022, complainant got marked Ex.P23 to Ex.P24(a to j) and matter was straight away posted for arguments. Even in CC.no.402/2019 also similar sequence of events, albeit on different dates occurred. 14. It was submitted, apprisal of incriminating materials to accused and was a mandatory stage of procedural protection provided to accused and violation would be fatal. Relying upon decisions of this Court in case of Shivaji v. Deepak (Crl.P.no100241/2018 disposed of on 13.03.2019) and Sunil Yadav v. YC Manju (Crl.P.no664/2020 disposed of on 07.02.2025), learned counsel prayed for allowing petitions. 15. Learned counsel urged specific contention confined to Crl.R.P.no.100027/2023, that very demand notice - Ex.P3 mentioned incorrect cheque number as 855726, even though Cheque number on Ex.P-1 was 855728. Therefore, impugned
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judgments/orders were liable to be set-aside on this fatal ground alone. On above grounds sought for allowing revisions. 16. On other hand, Srinand A. Pachhapure, learned counsel for respondent opposed petition, by contending that they were filed against concurrent findings. It was submitted, petitioner’s contention about violation of procedure with Section 313 of CrPC, was contrary to record. It was submitted, after completion of complainant’s deposition, statement of accused was recorded 06.11.2019. It was submitted, though application for recalling of PW1 was filed, allowed and further evidence recorded, documents marked were Ex.P16 and Ex.P22 (a). It was submitted, while passing impugned judgment/order by trial Court, there was virtually no reference or reliance upon said material. Thus, contention about violation of procedure under Section 313 of CrPC, was either misconceived or hyper technical. It was submitted, petitioners had failed to make out case of any prejudice.
It was submitted, Hon'ble Supreme Court in Suresh Chandra Bahri v. State of Bihar, reported in AIR 1994 SC 2420; Shobhit Chamar and Another v. State of Bihar, reported in AIR 1998 SC 1693 and Keya Mukherjee v. Magma Leasing Limited and Another,
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reported in 2008 (8) SCC 447, had held mere defective/improper examination under Section 313 of CrPC is no ground for setting aside conviction, unless it had resulted in prejudice to accused. 17. Insofar as contention about failure to issue notice, it was submitted Hon'ble Supreme Court in cases of SMS Pharmaceuticals Ltd. (supra); Standard Chartered Bank v. State of Maharashtra and Others, reported in 2016 (6) SCC 62, held requirements of Section 141 would be met if there are clear averments that person who had issued cheque was authorized to do so and notice is issued to such person. 18. It was submitted, in case of Pradeep Kumar Malhotra v. State of West Bengal, reported in 2011 SCC OnLine Cal 1700, High Court of Kolkata, elaborated meaning of word ‘notice’ and held:
“12. On this point the learned Counsel appearing for the O.P. submits that the addition of M/s. N.K. Choudhury as mentioned in the notice was a mere sup usage and it would not in any way vitiate the proceedings. In this connection the learned Counsel appearing for the O.P. has referred to the case of Barendra Kumar Bera v. Santanu @ Chottan Mukherjee (supra). In the aforesaid decision it has been held by the Hon'ble Single Judge in paragraph 14 as follows:
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The ordinary dictionary meaning of the word ‘notice’ is intimation or instruction to someone to do something. It is making someone aware of some fact. According to the common parlance a notice need not be in writing.
If statute does not explicitly provide that the notice must be in writing then in such a situation verbal notice is sufficient, for example, notice under Section 93 of the N.I. Act may be oral. Now Section 138(b) of the N.I. Act provides clearly that the payee or the holder in due course of the cheque has to make a demand for the payment of the amount of money by giving a notice in writing to the drawer of the cheque. Therefore, there is no scope to argue otherwise. The question is as to the manner of giving notice. There are no rules to the Act providing for manner of giving of notice. Had there been any statutory rule framed under the Act concerning manner of giving notice then such a rule would have been mandatory to be followed. The statute does not demand anything more except saying that the notice has to be in writing asking the drawer to make payment. In such circumstances, the question therefore is what would be the legal consequence of a notice otherwise valid and since received by the drawer but not signed by the agent of the party. The law is very clear that the notice under Section 138(b) need not necessarily be signed by the payee or the holder in due course. An authorized representative or agent of the payee or the holder in due course may issue the notice and here the Advocate acting as agent of the payee issued the notice in his letterhead but without signature. As already observed, there is no statutory Rule providing for mode of issuance of notice or of any form….”
On above grounds, sought for dismissal of revision petition. - 17 -
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19. Heard learned counsel and perused impugned
judgment and order.
20. From above, common points that arise for
consideration in both revision petitions are:
“1. Whether petitioner establishes that trial Court committed fatal error in not apprising accused about further incriminating material against him, consequent to further evidence recorded, after matter had crossed stage of recording of statement of accused under Section 313 of CrPC?
2. Whether petitioner establishes fatal error insofar as issuance of notice under Section 141 read with Section 138 (b) of NI Act?
3. Whether impugned judgment/orders passed by trial and Appellate Court herein call for interference?
21. This revision petition is under Section 397 read with Section 401 of CrPC. As per decision of Hon’ble Supreme Court in case of Amit Kapoor v. Ramesh Chander and another reported in (2012) 9 SCC 460, scope of interference against concurrent findings is held to be extremely limited and normally only on questions of law and not findings of fact.
22. While passing impugned judgment, both Courts have taken note of defence set up by petitioner that issuance of cheques were as security and not towards discharge of legally
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enforceable debt and overruled same by referring to admission about due execution and issuance of cheques attracting presumption under Section 139 of NI Act?.
23. It is also noticed that petitioner did not urge
contentions urged herein either before trial Court or before Appellate Court, which would have attracted specific findings. At same time, contentions about failure to urge such
contentions would not by itself be sufficient to discard same as they are questions of law and can be urged even in revision. Point no.1:
24. A bare perusal of order sheet of trial Court would clearly indicate that after conclusion of evidence of complainant, trial Court had apprised accused of incriminating material against them and sought explanation as mandated under Section 313 of CrPC. But, thereafter, when matter had progressed to stage of arguments, application was filed complainant for recalling of PW-1 and for marking of additional documents. Said application was allowed, PW-1 recalled and further evidence recorded, wherein complainant got marked Exs.P23 and Ex.P24. Thereafter, petitioner was provided
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opportunity of cross examination. Subsequently, matter was posted for arguments, without apprising petitioner about incriminating circumstances consequent to recording of further evidence. Admittedly, particular facts of this case do not admit of any order dispensing with recording of statement of accused under Section 313 as provided under proviso to Section 313 (b) of CrPC. Therefore ratio in Sunil Yadav’s case (supra) would not apply. On other hand, as per decision in Shivaji Govekar’s case (supra) where for failure to record statement under Section 313 of CrPC, was held non-fatal and remanded matter back to trial Court to redo proceedings from said stage, would appear attracted.
25. But, learned counsel for respondent has contended that petitioner cannot impugn concurrent
judgment of conviction on ground of violation of Section 313 of CrPC unless he establishes a case of prejudice by relying on decisions in case of Suresh Chandra Bahri, Shobit Chamar and Keya Mukherjee’s cases (supra). 26. In case of Suresh Chandra Bahri, referring to three judges decision in case of Shivaji Sahabrao Bobade v.
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State of Maharashtra, reported in (1973) 2 SCC 793, it is held, failure to apprise every incriminating material need not vitiate trial unless accused is able to establish case of prejudice. Similar view is echoed in Shobit Chamar and Keya Mukherjee’s cases (supra). In view of ratio laid down by Hon'ble Supreme Court, it would require for petitioner to establish prejudice caused to vitiate finding recorded by trial Court. 27. Perusal of trial Court records reveals that there is sufficient compliance with requirement of Section 313 of CrPC except insofar as Exs.P23 and 24. While Ex.P23 is covering letter for issuance of audited report of petitioner society, Ex.P24 is audited report. While passing judgment, trial Court has not relied or referred to said documents. When there is substantial compliance with Section 313 of CrPC, it has to be concluded that petitioner did not suffer any prejudice due to non-compliance insofar as Ex.P23 and 24. Point no.1 is answered in negative. - 21 -
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Point no.2:
28. In instant case, complainant arrayed – Shree Basaveshwar Urban Credit Souhard Sahakari Niyamit represented by its Manager, Sri VS Hanabar as accused no.1; Shree Basaveshwar Urban Credit Souhard Sahakari Niyamit represented by its Manager, Sri NM Narasingagol as accused no.2; and Shree Basaveshwar Urban Credit Souhard Sahakari Niyamit represented by its CEO, Sri BK Kamagoudar as accused no.3. 29. To establish compliance with requirement of Section 138 (b), complainant relies on Ex.P3 – notice. Admittedly it is addressed to “The Manager, Shree Basaveshwar Urban Credit Souhard Sahakari Niyamit, Sankeshwar, Mahanteshnagar Branch, Belagavi” i.e. accused no.1 and is delivered in person. 30. While passing impugned judgment, trial Court held acknowledgement issued by Society on Ex.P3 amounted to notice to society and on its failure to pay cheque amount, offence under Section 138 was established.
It noticed that during cross examination, main defenses set-up by petitioners was not about non-receipt of notice, but dispersed such as
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cheque being issued for security purposes, secondly that it was not issued to complainant but it was misused and thirdly by confronting PW-1 with Exs.D1 to D3 contending that maturity amounts in FDRs were paid and acknowledged. Complainant did not dispute signature on Exs.D1 to D3 but contended only thereafter cheque was issued. 31. When CEO of society is arraigned as accused no.3 and does not raise defence about non-receipt of notice, especially in present case, where seal of society is affixed acknowledging receipt of Ex.P3 notice. Trial Court has taken note of same and held sufficient compliance with requirement of notice under Section 93 read with Section 138 of NI Act. 32. In instant case, even accused no.1, at whose branch, notice was received, chose to reply pointing out authority authorized to receive notices on behalf of society or deny liability of cheque. It relied on decision in case of Jain Associates v. Deepak Chaudhary & Co., reported in 1999 SCC OnLine Del 269, to conclude that acknowledgment of Ex.P3 notice would amount to deemed notice to Society. - 23 -
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33. In Appeal, specific contention taken is about arraigning accused no.3 without issuing specific notice as he had not signed cheque. Accused no.3 herein is CEO of Society. 34. One of grounds urged in these revision petitions by petitioners is that accused no.3 is only authorized person to act on behalf of Society for issuing cheque by referring to Section 31 (2) (c) of Act read with bye-law no.55 of Society.
When, deposit of money by complainant is not in dispute, maturity of said deposits for payment is not in dispute, issuance of cheque is not shown to be towards any other transaction, It is rather unfortunate for Society to harass it depositor by taking such cantankerous contentions to dilate proceedings and shirk its responsibility of discharging its legal debt, by urging one technical pleas after another. 35. As noted by both Courts, there is no action taken by Society for protecting itself against liability under lost cheques if they were genuinely lost. Likewise, absolutely no material is placed on record about context in which petitioner had issued cheque as security. For foregoing reasons, point no.2 is also answered in negative. - 24 -
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36. In view of same, point no.3 is answered in negative. Consequently, following:
ORDER Criminal Revision Petitions are dismissed.
SD/- (RAVI V.HOSMANI) JUDGE
GRD CT:PA List No.: 1 Sl No.: 22