The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.574/2021 BETWEEN: 1 . SMT. P.S. RAJASREE W/O N.V.SREEDHARAN NAMBOOTHRI AGED ABOUT 47 YEARS R/AT NARAYANA MANGALATHU ILLAM CHERUKOL VILLAGE KATTOOR POST, RANNY TALUK PATHANAMTHITTA DISTRICT KERALA STATE PIN CODE – 689 650. … PETITIONER (BY SRI. KARTHIK K.S., ADVOCATE FOR SMT. BABY BALAN, ADVOCATE ) AND: 1 . SMT. SHEEBA JAYACHANDRAN W/O JAYACHANDRAN AGED ABOUT 46 YEARS R/AT NO.16, 2ND MAIN ROAD KANAKA LAYOUT KADIRENAHALLI BSK II STAGE BENGALURU PIN CODE – 560 070. … RESPONDENT (BY SRI. C.R.BHASKAR, ADVOCATE [ABSENT]) 2 THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 11.06.2020 BY THE HON’BLE LXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU, WHEREIN THE APPEAL WAS DISMISSED AND TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION DATED 21.05.2018 PASSED BY THE LEARNED 16TH ADDITIONAL CHIEF METROPOLITAN IN C.C.NO.313/2016. MAGISTRATE, BENGALURU THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 27.03.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
Legal Reasoning
was subjected to 313 to statement. Having considered both oral and documentary evidence available on record, convicted and sentenced the accused and hence, an appeal was filed before the First Appellate Court and in the appeal also the First Appellate Court on re-appreciation of oral and 4 documentary evidence available on record, confirmed the same. Hence, the present revision petition is filed before this Court. 3. The main contention of counsel appearing for the revision petitioner that the complainant’s husband Sri.Jayachandra also filed the case under Section 138 of N.I Act against the petitioner’s husband in C.C.No.16054/2013 on the file of XXI Addl. And XIX ACMM, Bengaluru city (SCCH-23) for recovery of Rs.9,00,000/- and in that case, the complainant’s husband admitted that he had received in total Rs.7,00,000/- from the petitioner’s husband and petitioner’s husband clearly stated the above said case disputed Cheque was issued by the petitioner for the security purpose of petitioner’s husband loan purpose and the same is misused by the respondent. 4. The counsel would vehemently contend that after full trial, the Court acquitted the petitioner’s husband and dismissed the respondent’s husband case on the 5 ground that amount was repaid which were reflected by the bank’s statement produced by the defense and the respondent preferred an appeal before this Court which is pending for consideration. The counsel also would vehemently contend that the order passed by the Trial Court and also the First Appellate Court is not based on the material available on record and ought to have held that the respondent/complainant failed to prove the case to invoke Section 138 of N.I Act. 5. The counsel also would vehemently contend that both the Courts erred in taking note of the petitioner being a resident of Kerala was not being well informed about the Stages and dates of case by the counsel and hence, the accused did not get the opportunity to cross–examine in full and led her defense evidence and same was also not taken note of by the both the Trial Court as well as the First Appellate Court. The very same grounds which have been urged in the revision petition also canvassed by the counsel 6 appearing for the revision petitioner and brought to notice of this Court particularly discussion made in paragraph No.25 and paragraph No.26 as well as paragraph No.28 and contend that the reason given by the Trial Court that in order to substantiate the defense version except the self assertion made by the accused, there is no corroborative piece of evidence is erroneous and the Trial Court also made an observation in paragraph No.31 with regard to the payment made by way of D.D and the very reasoning is not correct and the First Appellate Court also failed to consider the same and erroneously answered the point for consideration in coming to the conclusion that the very contention of the petitioner that there was no existing liability and erroneously answered the point as negative, though respondent is represented through counsel, the counsel for the respondent not pursued the matter diligently inspite of opportunity is given and also earlier made it clear that it will be heard in his absence and not 7 shown any interest and hence, argument of the respondent is taken as nil. 6. Having heard the arguments of the learned counsel for revision petitioner and also on perusal of finding of Trial Court and First Appellate Court, the point that would arise for consideration of this Court are: 1) Whether the revision petitioner has made out the ground to exercise the revisional jurisdiction and it requires interference? 2) What Order? 7. Having considered the grounds urged in the revision petition and also oral submission of counsel for revision petitioner, this Court has to re-assess the material within the ambit and scope of revisional jurisdiction. 8. It is the case of the complainant that the complainant and accused are friends and known to each other and accused availed loan of Rs.2,00,000/- from the complainant on 15.04.2011 and agreed to repay the same 8 on or before February-2013 and he did not repay the amount and hence, on insistence, issued the Cheque and also it is the case of the complainant that even Ex.P6 is also executed, the Cheque was dishonored and notice was given and the same was served and but no reply was given. The complainant in order to prove his case, examined himself as PW1 and also marked the document Ex.C1-Cheque and signature of the accused is also marked as Ex.C1(a) and also bank memo is marked as Ex.C2 and also the legal notice as Ex.C3, Ex.C4 and Ex.C5 and receipt as Ex.C6. Having perused the original documents available on record, the complainant relied upon the document dated 15.04.2011 wherein in the receipt, it is specifically mentioned that having received the hand loan by two demand drafts for an amount of Rs.1,00,000/- as well as for an amount of Rs.89,000/- and also a sum of Rs.11,000/- by way of cash. 9 9. It is also important to note that wherein also clearly admitted that the amount will be repaid on or before February-2013 and the said receipt is also signed by accused as well as her husband and this document is not disputed and also the Cheque is also marked as Ex.C.1 and the signature is marked as Ex.C1(a) and no doubt at the first instance, witness was not cross – examined PW1, but later filed an application and opportunity was given and suggestion was made that Ex.C6 was not signed but the same was denied and witness volunteers that she has signed the same before her and even husband was also present and says that she has signed the same in the office of her husband. It is also evident from the record that herself, Sridhar and Nambiyar and the husband of the accused are from the same place that is Katuru in Kerala. 10. It is important to note that in the cross – examination, suggestion was made that he had collected the Cheque in dispute from the accused for the purpose of 10 security when he had lent the loan to husband and hence, there is a clear admission that Cheque was given but only contention that when the amount was lent to her husband Cheque was collected and even witness says with regard to the document Ex.C6 that the same was brought by accused also. Even in further cross – examination also it is elicited that 6-7 years they are known to each other. In the cross - examination suggestion was made that her husband had availed loan for an amount of Rs.1,42,000/- and the same was denied and nothing is elicited in the cross - examination of PW1 and there is an admission also and even in the 313 statement also issuance of legal notice was also admitted, but only defense was taken that never received any amount and when such defense was taken that not received any amount the accused ought to have let in her evidence as defense evidence and except taking the defense, nothing is placed on record and no cogent evidence is placed on record and the Trial Court also taken 11 note of the said fact into consideration while convicting the accused, particularly in paragraph No.36 taken note of the fact that accused has taken up the plea of forgery for signature on the said document and no fault could be found with the evidentiary value of the said document at Ex.C6 and though denies that signature was not of the accused and when the complainant relies upon the same and not taken the same to any handwriting expert if disputing the document and recital of the document Ex.C6 is very clear for having received the money by way of D.D and cash and even the First Appellate Court also on re-appreciation in paragraph No.12 taken note of the fact that the complainant has produced Ex.C6, Ex.C3 and even zerox copies of D.D and counter file for purchasing D.D are produced and there is no any rebuttal evidence and even First Appellate Court also taken note of admissions given in the statement under Section 313 of Cr.P.C that certainly establishes the fact that complainant has lent the money as 12 stated in the complaint and no defense evidence. Having considered both oral and documentary evidence available on record as well as material on record, both the Trial Court and First Appellate Court taken note of material on record and also the payment is made by way of D.D and also cash and also the same is evident in the very document of loan dated 15.04.2011 itself and also the case of complainant is that the subject matter of Cheque was given subsequently on insisting the repayment of money and the same is dated 19.03.2013 that is subsequent to February and Ex.C6 is also very clear that agreed to repay the same in the month of February and subsequent to the February, Cheque was issued and hence, I do not find any perversity in the finding of Trial Court in passing the conviction as well as confirmation for the offence punishable under Section 138 of N.I Act and within the scope and ambit of revision and I do not find any grounds to exercise the revisional jurisdiction. Hence, I answer the point as ‘Negative’. 13 11. In view of the discussions made above, I pass the following:
Arguments
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER 1. This revision petition is filed against the judgment passed in C.C.No.313/2016 dated 21.05.2018 wherein revision petitioner is convicted under Section 138 of N.I Act directing to pay fine of Rs.2,25,000/- and in default undergo simple imprisonment and also the order passed in Crl.A.No.1136/2019 dated 11.06.2020 confirming the judgment of the Trial Court. 2. The factual matrix of case of the complainant before the Trial Court that complainant and accused are friends and known to each other and availed loan of 3 Rs.2,00,000/- from the complainant on 15.04.2011 agreeing to repay the same on or before February-2013 since the accused has not repaid the amount till February- 2013, the complainant demanded for repayment for which the accused issued a Cheque in the month of last week of February-2013 assuring the complainant that the same may be honored, when the Cheque was presented, returned with an endorsement ‘insufficient fund’ and notice was sent and no reply was given and hence, filed the complaint. The Trial Court taken the cognizance and secured the accused and he did not plead guilty and hence, complainant examined himself as PW1 and got marked the document Ex.C1 to Ex.C6. The accused not led defense evidence, however, he
Decision
ORDER The Revision Petition is dismissed. Sd/- (H.P. SANDESH) JUDGE RHS