The High Court
Case Details
- 1 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 691 OF 2016 BETWEEN: 1. SMT. PARIMALA W/O MOHAN AGED ABOUT 39 YEAS RESIDING AT NO.162, 5TH CROSS, II MAIN ROAD, PRAKASHNAGAR, BANGALORE-560 021. (BY SRI. NEHRU P., ADVOCATE) …PETITIONER AND: 1. SMT. G. LAKSHMI W/O GANESH AGED ABOUT 53 YEARS NO.319/8, 5TH CROSS, 1ST MAIN, PRAKASHNAGAR, BANGALORE-560 021. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA …RESPONDENT (BY SRI. RAMACHANDRA NAIK R., ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ENTIRE IMPUGNED ORDER AND JUDGMENT PASSED BY THE XIII ADDL. C.M.M, BENGALURU IN C.C.NO.19174/2014 DATED 02.09.2015 AND THE ORDER DATED 27.04.2016 PASSED BY THE LXVI ADDL. CITY CIVIL AND IN CRL.A.NO.1239/2015. BENGALURU SESSIONS CCH-67, JUDGE, - 2 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 THIS PETITION COMING ON FOR THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
Legal Reasoning
having perused the material available on record, the point that would arise for consideration of this Court are: 1) Whether the Courts below have committed an error in convicting and - 8 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 sentencing and whether this Court can exercise revisional jurisdiction for coming to other conclusion? 2) What Order? 9. Having heard the revision petitioner’s counsel and also the counsel appearing for respondent, it is not in dispute that the Cheque Ex.P1 contains the signature of the revision petitioner and it is also not in dispute that when the Cheque was presented and the same was dishonored and bank was issued endorsement in terms of Ex.P2. It is also not in dispute that notice was issued to the revision petitioner and the same was served on the revision petitioner and reply is given in terms of the Ex.P6. Having perused the Ex.P6-reply notice, it is categorically stated that revision petitioner has approached the complainant in the year 2012 and sought for a hand loan of Rs.30,000/- with an assurance that the said amount will be returned to client but could not repay the same as agreed. It is also the contention that he was paying interest to the complaint regularly at the rate of 3% p.m. - 9 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 No doubt the reply was given and specific defense was taken and also contend that interest was paid at the rate of 3% p.m and no such material is placed before the Court for having paid the interest also. It is also important to note that in the cross-examination of DW1 categorically admitted that the DW2 is none other than daughter of the complainant and she speaks about only giving assistance to the mother. Apart from that when the PW1 was examined before the Trial Court, no doubt in the cross- examination she admits that she was working as a tailor. She is getting an income of Rs.6,000/- per month and also she says that she is paying rent of Rs.6,000/- to that house and she is not having any F.D amount in any of the bank. It is her case that she is keeping the money of Rs.2,50,000/- in order to get the house for lease and when the accused demanded the money from her, she paid the money of Rs.2,50,000/-. No doubt she also admits that she did not obtain any promissory note or any other documents and regarding the very defense of the revision petitioner that she had availed an amount of Rs.30,000/- - 10 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 in the year 2012, nothing is elicited from the mouth of PW1 when the Cheque is admitted and also on perusal of the document of Ex.P1 and also the defense if really the revision petitioner was paying the interest as agreed from 2012 ought to have placed any material for having paid the interest and nothing is placed on record and when the Cheque is admitted, Court can draw the presumption under Section 139 of N.I Act. No doubt when the presumption is drawn in favour of complainant and having admitted the Cheque, burden shifts on the revision petitioner to rebut the evidence of the complainant. In order to rebut the contention of the revision petitioner, except saying that she had borrowed only an amount of Rs.30,000/- and not Rs.2,50,000/-, nothing is elicited and also even not examined any witnesses with regard to the lending of money only Rs.3,000/- to Rs.5,000/- by the complainant to the revision petitioner and also the very case of the revision petitioner that the Cheque was given earlier and the same was misused. In order to substantiate the contention that for misusing of the - 11 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 Cheque also nothing is placed on record except producing the document of Ex.D1 i.e., order sheet. No doubt a complaint is filed invoking Section 420 of IPC and in order to substantiate the same also with regard to the misusing of the Cheque, nothing is placed on record and the revision petitioner ought to have placed the material of preponderance of probabilities and with regard to the earlier transaction is also concerned, no document is placed before the Court. It is also the case of the revision petitioner that earlier she used to receive the money Rs.3,000/- to Rs.5,000/-, but the very contention that she had availed the loan of Rs.30,000/- is not disputed, but only contention that instead of Rs.30,000/- made use of Cheque and misused the same for an amount of Rs.2,50,000/- and unless any preponderance of probabilities are placed before the Trial Court, I do not find any error committed by the Trial Court and also the First Appellate Court in appreciating the evidence, only self styled statement that he had borrowed only Rs.30,000/- cannot be accepted and the fact that borrowed the money - 12 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 is not in dispute and only dispute is with regard to the quantum of amount is concerned and only contention that borrowed Rs.30,000/- and not an amount of Rs.2,50,000/- and the same is also not substantiated by placing any preponderance of probability and admitted that no complaint is given when the Cheque was misused and no steps also taken, when such being the case, I do not find any error committed by the Trial Court in appreciating both oral and documentary evidence placed on record and the very contention and defense of the revision petitioner’s counsel cannot be accepted. Hence, I answer the point as negative. 10. In view of the discussions made above, I pass the following:
Arguments
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER 1. Heard the learned counsel for revision petitioner and the learned counsel for the respondent. 2. This revision petition is filed against the concurrent finding of the Trial Court and also the First Appellate Court for convicting and sentencing the revision petitioner for the offences punishable under Section 138 of Negotiable Instruments Act directing the revision petitioner to pay an amount of Rs.2,55,000/- as against the amount of Rs.2,50,000/-. 3. The factual matrix of case of the complainant before the Trial Court that the accused being known person to the complainant had approached the complainant for financial assistance of Rs.2,50,000/- during the 1st week of the January-2014 to meet her urgent problems, assuring to repay the same within 3 - 3 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 months and believing her words, the complainant had advanced the money in favour of the accused by way of cash. After lapse of the stipulated period, on persistent demand, the accused had issued a Cheque dated 08.05.2014 for a sum of Rs.2,50,000/-, when the said Cheque was presented, the same was dishonored with an endorsement ‘insufficient funds’ and immediately legal notice was issued and notice was served and accused did not comply with the demand but gave evasive reply and hence, filed the complaint. 4. The Trial Court taking cognizance of the offence, allowed the complainant to examine herself as PW1 and got marked Ex.P1 to Ex.P8. The accused subjected to 313 statement and the accused herself examined as DW1. The accused filed an application to examine the daughter of the complainant as Court witness and the Trial Court not treated as court witness but examined her as DW2. The Trial Court having considered the evidence of the PW1 and DW2 and documentary evidence of Ex.P1 to Ex.P6 and also Ex.D1 and also taking - 4 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 into note of the defense of an amount of Rs.30,000/- was received and not the amount of Rs.2,50,000/- and having considered the signature found on the document accepted the case of complainant and disbelieved the case of the petitioner and convicted for the offence punishable under Section 138 of N.I Act and directed to pay an amount of Rs.2,55,000/- and out of that an amount of Rs.2,50,000/- compensation is payable to the complainant. Being aggrieved by the order of the Trial Court, an appeal is filed in Crl.A.No.1239/2015. The First Appellate Court having considered the material on record, re-assessed the same and taken note of the contentions of the revision petitioner that about 5-6 years back, she had received an amount of Rs.3,000 to Rs.5,000/- borrowed from the complainant and at that time the complainant used to take Cheque and issued the cash. Accordingly in the month of October- 2012, she had received an amount of Rs.30,000/- and agreed to repay the same within 6 months. Even after 6 months, she could not repay the loan amount because she has suffered the loss. When she fails to pay the amount of - 5 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 compensation, misusing her signed Cheque and buildup the same and presented the same and filed the false case. The complainant not paid an amount of Rs.2,50,000/- and only amount of Rs.30,000/- was paid and for misusing of Cheque also, filed a separate complaint against the respondent/complainant invoking Section 420 of IPC and document of Ex.P1 is marked. 5. The First Appellate Court having considered the defense which has been taken and also re-assessed the material on record, comes to the conclusion that when the signature was admitted and under circumstances in which the Cheques are given was not established and hence accepted the reasoning given by the Trial Court and dismissed the appeal. 6. The counsel appearing for the revision petitioner would vehemently contend that specific defense is given that the revision petitioner used to take the financial assistance from the complainant earlier and only borrowed an amount of Rs.30,000/- and not an amount of Rs.2,50,000/-. The counsel also would contend that when - 6 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 the notice was issued, immediately reply was given setting forth the defense. The counsel would contend that complainant admitted that she is doing tailoring business and getting the income of Rs.6,000/- and highly impossible to make the payment of Rs.2,50,000/- in favour of the accused. The counsel would contend that the evidence of DW2 who has been examined only says that they were helping the mother, but no substantial material is placed for helping the mother to advance the amount of Rs.2,50,000/-. The Trial Court ought not to have convicted the petitioner only on the basis of Cheque which is not disputed. The very evidence of complainant is that daughter is working in ITPL and in the cross-examination DW2 says that she is a freelancer. These are the contradictions not taken note of by the Trial Court. 7. Per Contra, the counsel appearing for the respondent/complainant would contend that both the complainant and accused are having acquaintance with each other is not in dispute. Apart from that the very revision petitioner clearly admits that petitioner used to - 7 - NC: 2025:KHC:2365 CRL.RP No. 691 of 2016 take financial assistance and only defense taken is that the Cheque which was taken earlier was misused for an amount of Rs.2,50,000/- and no such payment was made cannot be accepted. When the complainant has examined, nothing is elicited from the mouth of the complainant with regard to the misusing of the Cheque which was given earlier and those suggestions are given and the same has been denied. It is also contend by the counsel that a complaint under Section 420 of IPC is filed only after the issuance of notice against the revision petitioner herein and not prior to the filing of the complaint. Hence, marking of document Ex.D1 cannot be a ground to comes to a other conclusion and hence, it does not requires any interference. 8. Having heard the revision petitioner’s counsel and also the learned counsel for the respondent and also
Decision
ORDER The Revision Petition is dismissed. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 81