The High Court
Case Details
- 1 - NC: 2025:KHC:3914 CRL.RP No. 1512 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO.1512 OF 2019 BETWEEN: SRI R VENKATARAMA NAIK S/O. NARAYANA NAIK, AGED ABOUT 50 YEARS, R/AT NO.81, NAGARABHAVI 2ND STAGE, 8TH BLOCK, BANGALORE-560 072. (BY SRI VEERESH MAHANTHAPPA, ADVOCATE) AND: …PETITIONER Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA SRI S PRAKASH RAO S/O. SHAMA RAO, AGED ABOUT 39 YEARS, R/AT NO.72, MAHALAKSHMIPURAM, 2ND STAGE, BANGALORE-560 086. (V/O DT.08.01.2025, SERVICE OF NOTICE TO RESPONDENT H/S) …RESPONDENT THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE PASSED BY THE XX ACMM, BENGALURU IN C.C.NO.49793/2010 DATED 10.03.2015 AND ETC. - 2 - NC: 2025:KHC:3914 CRL.RP No. 1512 of 2019 THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL ORDER This revision petition is filed challenging the order of conviction and sentence passed by the XX ACMM, Bangalore in
Legal Reasoning
C.C.No.49793/2010 dated 10.03.2015 and confirming the same by 55th Additional City Civil and Sessions Judge, Bangalore in Crl.A.No.522/2015 dated 14.08.2019. 2. Heard the learned counsel appearing for the petitioner and though respondent is served with Court notice, he did not choose to appear before this Court. 3. The factual matrix of the case of the complainant before the Trial Court is that this petitioner/accused availed a loan of Rs.2,50,000/- on 25.05.2006 agreeing to repay the same within two years and also executed a indemnity bond in favour of the complainant and when he did not repaid the amount as agreed, the complainant demanded this petitioner for return of the amount and on demand, the petitioner/accused had issued a cheque dated 08.12.2009 for - 3 - NC: 2025:KHC:3914 CRL.RP No. 1512 of 2019 Rs.2,50,000/- and on presentation of the said cheque, it dishonoured for the reason that ‘Account Closed’ and thereafter, the complainant issued a notice calling upon the accused to repay the loan amount but this petitioner gave evasive reply to the said notice and hence, without any other alternative, the respondent/complainant filed the complaint. 4. The Trial Court taken the cognizance of the offence and thereafter secured the accused and the accused denied the issuance of cheque and hence, proceeded for trial. The complainant in order to prove his case, examined himself as PW1 and got marked the documents at Ex.P1 to P6(a). On the other hand, accused also examined himself as DW1 and marked the document at Ex.D1 i.e., the copy of the complaint lodged with the police with regard to misplace of cheques. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the complainant established his case on the fact that the cheques bears the signature belongs to the accused and apart from that Ex.P5 - Indemnity Bond executed by the accused also not in dispute and on perusal of Ex.P5 and P6, it discloses that the case of the complainant appears to be genuine and the reason - 4 - NC: 2025:KHC:3914 CRL.RP No. 1512 of 2019 set out by the accused that he lost the cheques which has issued to the complainant is without any merits and also on comparison of Ex.P5 with Ex.P1, it is clear that the case of the complainant inspires confidence of the Court whereas the defence set up by the accused is imaginary and unnatural and taking note of the facts into consideration, the Trial Court and convicted the accused and sentence is also passed. 5. The First Appellate Court also having considered both oral and documentary evidence placed on record comes to the conclusion that after the closure of the account, a complaint was lodged with an intention to defeat the claim of the complainant and also the accused did not deny execution of Ex.P5 in favour of the complainant and held that the accused committed the offence and confirmed the order of the Trial Court. Being aggrieved by the order of the Trial Court as well as the First Appellate Court, the present revision petition is filed before this Court by the petitioner/accused. 6. The main contention of the learned counsel for the petitioner that both the Courts have committed an error in not considering the document of Ex.D1 and cheque is subsequent - 5 - NC: 2025:KHC:3914 CRL.RP No. 1512 of 2019 to Ex.D1 and complaint was given on 13.06.2008 and subject matter of cheque was issued in the year 2009 and said fact was not considered. If really, accused has given the cheque in the year 2009, what made him to give the complaint on 13.06.2008 and both the Courts have not considered the said fact into consideration. 7. Having heard the learned counsel for the petitioner and also on perusal of the material available on record, the points that would arise for the consideration of this Court are: 1. Whether the order of the Trial Court as well as the First Appellate Court suffers from its legality and correctness and whether it requires interference of this Court exercising the revisional jurisdiction? 2. What order? Point No.1: 8. Having heard the learned counsel for the petitioner and also on perusal of the material available on record, it discloses that it is a case of the complainant that accused borrowed a hand loan of Rs.2,50,000/- on 25.05.2006 agreeing to repay the same within two years and on the same day the - 6 - NC: 2025:KHC:3914 CRL.RP No. 1512 of 2019 accused had executed the indemnity bond in favour of the complainant and subsequently, the accused failed to repay the loan amount and when the complainant demanded for repayment of the loan amount, ad has issued a cheque dated 08.12.2009 for Rs.2,50,000/- in favour of the complainant. It has to be noted that when the accused appeared and took the specific defence that cheques were lost and immediately complaint was lodged in the year 2008 itself that is on 13.06.2008 and document at Ex.D1 is very clear that the complaint was given on 13.06.2008 with the police and there is an acknowledgment regarding having given the complaint on 13.06.2008. 9. It is important to note that transaction was taken place according to the complainant on 25.05.2006 and it is the specific case of the complainant that subject matter of cheque was issued on 08.12.2009 and hence, it has to be noted that the cheque was issued after more than three years i.e., the transaction is on 25.05.2006 and within two years, the accused has not repaid the amount, thus, what made the complainant to wait for more than 3½ years to take action against the accused, no explanation. The subject matter of cheque was - 7 - NC: 2025:KHC:3914 CRL.RP No. 1512 of 2019 given is dated 08.12.2009 and same is time barred cheque and even if any time barred cheque was given and transaction was taken place more than three years back, same is not valid and also the probable defence has been raised by the accused that the cheque is dated 08.12.2009 but the complaint was given on 13.06.2008 itself and there is an acknowledgment to the fact that complaint was given with the police at Ex.D1. 10. It has to be noted that when cheque was presented before the bank, by that time, already account was closed and hence, there is a probable defence of the accused that when accused lost the cheque and has given the intimation to the bank and closed the account even prior to the date of the presentation of the cheque and complaint was given to the police to that effect. No doubt, Ex.P5 was executed on the date of borrowing of loan and the same is also dated 25.05.2006 and within the period of three years, there is no acknowledgment for having debt also. Even considering the document at Ex.P5 as well as cheque at Ex.P1, it is clear that Ex.P1 was issued after three years. When such materials are found, both the Courts have lost sight on Ex.P5 dated 25.05.2006 i.e., on the date of transaction; Ex.D1 is dated - 8 - NC: 2025:KHC:3914 CRL.RP No. 1512 of 2019 13.06.2008 and cheque is dated 08.12.2009 and even the accused admitted the document of Ex.P1 and the same has not been taken note of by the Trial Court as well as by the First Appellate Court. Hence, both the Courts lost sight on the documents at Ex.P1, P5 and Ex.D1 when loan transaction of the year 2006 and cheque was issued in the month of December 2009, the same is time barred and Ex.P5 also not save the transaction. When such being the case, I am of the opinion that both the Courts have lost sight on the material available on record. When there is no legal evidence and same is not considered by both the Courts, the order suffers from its legality and correctness. Hence, it requires interference of his Court by exercising the revisional jurisdiction. Accordingly, I answer the above point as affirmative. Point no.2: 11. In view of the discussions made above, I pass the following:
Decision
ORDER The revision petition is allowed. The impugned order dated 10.03.2015 passed in C.C.No.49793/2010 by the Trial Court the impugned order - 9 - NC: 2025:KHC:3914 CRL.RP No. 1512 of 2019 dated 14.08.2019 passed in Crl.A.No.522/2015 by the First Appellate Court are set aside. If any amount is deposited by the petitioner, the same is ordered to be refunded in favour of the petitioner on proper identification. SN Sd/- (H.P.SANDESH) JUDGE