The High Court
Case Details
- 1 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 704 OF 2020 BETWEEN: 1. SRI. K. SHABBIR AHMED S/O. KHASIM SAB AGED ABOUT 65 YEARS R/O. 2ND CROSS KOTE AREA, OLD TOWN BHADRAVATHI-577 245. (BY SRI. MALLIKARJUN C. BASAREDDY, ADVOCATE) …PETITIONER AND: 1. SMT. N. BHARAMARAMBA W/O. LATE SHANMUKHAPPA AGED ABOUT 60 YEARS R/O. SAVI NILAYA SIDDARODA NAGARA OLD TOWN BHARAVATHI-577 245. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA …RESPONDENT (BY SRI. B.V.VEERA ARAVIND, ADVOCATE – [ABSENT]) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 17.02.2020 IN C.C.NO.749/2019 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND JMFC AT BHADRAVATHI, WHICH CONFIRMED IN CRL.A.NO.5006/2020 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT BHADRAVATHI. - 2 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL ORDER
Legal Reasoning
1. Heard the learned counsel for revision petitioner and also the learned counsel for the respondent is absent and this Court earlier made it clear that if counsel does not appear in the next date of hearing, the matter will be heard in his absence. 2. The factual matrix of case of the complainant before the Trial Court that this petitioner has availed sum of Rs.2,00,000/- on 12.02.2013 for discharging his debts towards the construction of his house. The accused also issued the post dated Cheque dated 10.12.2014 for a sum of Rs.2,00,000/- and agreed to pay the interest at 18% per annum. When the Cheque was presented in view of non payment of the amount as agreed, the same was dishonoured with an endorsement that ‘Funds insufficient’. The notice was issued and postal authority had issued the - 3 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 intimation to the accused regarding the above legal notice and with dishonest intention he awarded repayment and the same was returned after 7 days he enquired and intimation was given and hence he did not pay the amount on demand and hence filed the complaint and cognizance was taken before the Trial Court. The accused was secured and he did not plead guilty and claims trial and hence, the Trial Court examined the complainant as PW1 and got marked the documents Ex.P1 to Ex.P7 and accused also examined himself as DW1 and also examined wife as DW2 and got marked Ex.D1 and Ex.D2. 3. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the case of the complainant is probable than the accused. The Ex.D1 is very clear that the complainant was not doing any chit business and he has denied the suggestion that her husband had issued the Ex.P1 for discharging loan borrowed by him for Rs.2,00,000/- on 12.02.2013 agreeing to repay the same with interest at the rate of 18% and also comes to the - 4 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 conclusion that DW1 and DW2 cross-examination is clear that accused has fail to connect issuance of Cheque Ex.P1 with alleged chit business. The DW1 and DW2 have clearly admitted that they have not taken any legal action against the complainant for misusing the Cheque issued by them as per Ex.D2 and also comes to the conclusion that accused has not replied to the legal notice issued by the complainant. Apart from that the complainant produced the document of Cheque and also produced the Ex.P6 which clearly discloses that earlier there was a transaction between the parties and also presumption under Section 118 and 139 of N.I Act not been rebutted by placing any preponderance of probabilities and statutory presumption was drawn in favour of complainant in coming to the conclusion that except legal necessity, no other reasons are found for having issued the Cheque Ex.P1 which is not disputed and hence convicted the accused and ordered to sentence and the same has been challenged in the criminal appeal and in the criminal appeal also the First Appellate Court having re-assessed the material available - 5 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 on record, comes to the conclusion that no dispute with regard to the issuance of Cheque. The Trial Court has observed that all these decisions are not applicable and there is no error committed by the Trial Court in considering the material on record. The First Appellate Court also taken note of Section 27 of General Clauses Act regarding service of notice is concerned, when the notice was sent to the correct address and also taken note of the notice sent by the complainant was returned with an endorsement as he has enquired 7 days and not found and hence returned to the sender. When there is no dispute with regard to the issuance of Cheque and also the document Ex.P6 clearly discloses that there were transaction between both of the complainant and his wife and also accused has signed the document for having received the amount of Rs.1,00,000/- earlier in the year 2004 which evidence the fact with regard transactions between the complainant and accused. Hence, confirmed the judgment of the Trial Court. - 6 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 4. Being aggrieved by the concurrent finding the present revision petition is filed before this Court. The main contention of the revision petitioner that once Ex.P1 was executed and also DW1 categorically admitted that the said amount was not paid. The said transaction is in respect of 2004 and what made to execute the Cheque in the year 2014 and the same has not been considered by the Trial Court. The counsel also would vehemently contend that the material is very clear that there was a chit transaction between the complainant and wife of the accused and in that connection, the Cheque was given as security and defense of the accused also probabilized inspite of both the Courts committed an error in coming to the conclusion that Cheque was issued discharging of legal liability for having received the amount. The Courts below comes to the conclusion that DW2 who is the wife of the petitioner admitted the issue of Cheque to the respondent and convicted the petitioner which is against the procedure of law since the DW2 clearly given stating that the Cheque was issued regarding the chit transaction as a security and - 7 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 not for the present case and the same has not been considered by both the Courts. 5. The learned counsel for the petitioner relied upon the judgment reported in (2019) 5 SCC 418 in the case of BASALINGAPPA vs MUDIBASAPPA wherein the Apex Court held with regard to the source of income is concerned and standard of proof, while prosecution must establish its case beyond reasonable doubt, accused to prove a defence must only meet standard of preponderance of probabilities. 6. The learned counsel for the petitioner also relied upon the judgment of this Court passed in R.F.A.No.565/2010 dated 14.06.2019 wherein also discussion was made with regard to presumption as to negotiable instruments of consideration of Section 138 and brought to notice of this Court paragraph 14 wherein discussion was made with regard to answer elicited from the mouth of witnesses regarding the documents. 7. Having heard the learned counsel appearing for the petitioner and considering the principles laid down in - 8 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 the judgments referred supra, the points that would arise for consideration of this Court are: i) Whether both the Courts committed an error in convicting and sentencing the accused for the offence punishable under Section 138 of NI Act and it amounts to any perversity in the finding and suffers from its legality and correctness? ii) What order? Point No.1: 8. Having heard the learned counsel appearing for the petitioner and also on perusal of the material on record, it discloses that this petitioner availed a loan of Rs.2,00,000/- in the year 2013 from the complainant and gave posted dated Cheque in the month of December 2014, when the said Cheque was presented, it got dishonoured and hence, legal notice was issued and the said notice was returned with an endorsement that ‘postman visited the house of the petitioner seven days’, thereafter returned the same as ‘not known’. It is the fact - 9 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 that the petitioner did not dispute issuance of Cheque at Ex.P1 but his only defence is with regard to the chit transaction is concerned and his wife has given the said Cheque which was signed by the petitioner. However, in the cross-examination, DW1 admits that his wife has given the said Cheque towards chit transaction but his wife – DW2 deposed in her cross-examination that Cheque was signed by her husband in order to withdraw the retirement benefit amount and same was given to the complainant and hence, the version of DW1 and DW2 is contrary to each other. 9. It is important to note that Ex.P6 clearly discloses that there were money transaction between the complainant and accused family and the documents also reveal that in the year 2004 also accused availed the amount of Rs.1,00,000/- and the accused and his wife have signed the said document. When said document is placed before the Court, it evident the fact that there is a financial transaction between the complainant and accused. The theory of Cheque was given in respect of - 10 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 chit transaction is concerned, same has not been proved. The fact that there was a chit transaction between the wife of the accused and complainant and same is not in dispute since document at Ex.D1 was confronted to the complainant and the complainant admitted the same. The fact that wife of accused only gave the said Cheque. However, accused also showed the document at Ex.D2 and DW1 categorically admits that the said Cheque is in his custody and same is also not utilized by any of the parties. When such being the case, mere production of Ex.D2 also not probabilize the case of the petitioner. Once the petitioner admits that he has issued the Cheque, though contend that it is in respect of chit transaction is concerned, the very evidence of DW1 and DW2 is contrary to each other and DW2 not says that the said Cheque was not given by her husband towards security as contended by DW1 and answer given by DW1 and DW2 is contrary to each other. 10. The counsel in support of his arguments relied upon BASALINGAPPA’s case referred supra. The - 11 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 complainant in her evidence categorically stated that she is having building and getting the rent of Rs.30,000/- per month and though not produced the receipt for having received the amount, DW1 categorically admitted that the complainant having three storey building. When such evidence is given by the complainant and same has been admitted by the accused, now, the petitioner cannot contend that not having any source of income. The other judgment relied upon by the counsel for the petitioner is with regard to the contents of the document is not in the handwriting of the accused and same cannot be a ground to allow the revision petition since the Apex Court recently held that once issuance of blank Cheque is admitted, later on cannot contend that same is not in his handwriting when authorization was given to the complainant to fill up the Cheque and the accused cannot contend that said Cheque was misused. In the case on hand also when the defence was taken that Cheque was misused but no complaint was given and same is admitted by the witness before the Trial Court. When such being the material on - 12 - NC: 2025:KHC:5699 CRL.RP No. 704 of 2020 record, I do not find any perversity in finding of both the Courts and this Court can exercise the revision jurisdiction only when the finding of both the Courts suffers from its legality and correctness. Hence, no grounds are made out in this revision petition to exercise the revisional jurisdiction by this Court. Accordingly, the above point No.1 is answered as ‘Negative’. Point No.2: In view of the discussions made above, I pass the following:
Decision
ORDER The Revision Petition is dismissed. RHS,SN List No.: 1 Sl No.: 40 Sd/- (H.P.SANDESH) JUDGE