The High Court
Case Details
- 1 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO.1503 OF 2019 BETWEEN: SRI SHEIK RAFEEQ S/O SHEIK PAKEER SAHEB AGED ABOUT 36 YEARS R/AT ODALA HOUSE UJIRE VILLAGE AND POST BELTHANGADY TALUK D K DISTRICT-575219 (BY SRI JEEVAN K, ADVOCATE) AND: MR MANJUNATHA GOWDA S/O B S LAKSHMANA GOWDA AGED ABOUT 48 YEARS R/AT SURALI HOUSE BERALU POST AND VILLAGE BELTHANGADY TALUK D K DISTRICT-575 219 Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA …PETITIONER (BY SRI DEEPAK WAGLE, ADVOCATE FOR SRI A KESHAVA BHAT, ADVOCATE) …RESPONDENT - 2 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 DATED THIS CRL.RP IS FILED U/S 397 (1) R/W 401 CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION IN C.C.NO.244/2015 BY THE COURT OF PRL. SENIOR CIVIL AND JMFC, BELTHANGADY AND THE JUDGMENT AND ORDER DATED 31.10.2019 MADE IN CRL.A.NO.111/2018 BY THE COURT OF PRL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU AND ETC. 31.10.2018 MADE 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 judgment and order of conviction dated 31.10.2018 passed in C.C.No.244/2015 and the judgment and order dated 31.10.2019 passed in Crl.A.No.111/2018. 2. This petition is listed for admission. Heard the
Legal Reasoning
learned counsel appearing for the respective parties. 3. The learned counsel for the revision petitioner/accused would vehemently contend that the Trial Court committed an error in not considering the documentary evidence for having made the payment of - 3 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 Rs.1,30,000/-. It is the specific case of the petitioner/accused is that he had borrowed only Rs.1,30,000/- and he has repaid the said amount and the same is evident from the records at Ex.D1 and D2. The counsel also would vehemently contend that PW1 categorically admitted in the cross-examination that except this transaction, there is no other transaction between the petitioner and the respondent and inspite of the said defence, the Trial Court committed an error in coming to the conclusion that evidence of DW1 corroborates the case of the complainant that the accused is in the habit of issuing Cheques without sufficient funds in the account which is the main ingredient to attract Section 138 of N.I. Act and did not accept the defence of the petitioner. The counsel also would vehemently contend that the Trial Court comes to the conclusion that the accused from his own evidence has failed to rebut the presumption even by preponderance of probabilities and the very approach of the Trial Court is erroneous and committed an error in convicting the petitioner for the - 4 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 offence punishable under Section 138 of N.I. Act. The counsel also would vehemently contend that the First Appellate Court also failed to take note of the material available on record even though discussed the evidence of PW1 wherein PW1 has admitted in his cross-examination that it was the only transaction he had, cannot be read in isolation and this stray admission cannot be misused by the accused/appellant nor it rebuts the legal presumption available under Section 139 of the N.I. Act. The very reasoning given by the First Appellate Court is also erroneous. The counsel also would vehemently contend that when the material evidence available before both the Courts, both the Courts have committed an error in convicting the petitioner for the offence punishable under Section 138 of N.I. Act. Hence, this Court can interfere with the finding of both the Courts exercising the revisional jurisdiction since the very observations made by both the Courts are erroneous. - 5 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 4. Per contra, the learned counsel appearing for the respondent/complainant would vehemently contend that the Court has to take note of the evidence DW1 wherein he categorically admitted in the cross-examination that he had started the transaction in terms of Ex.C1 in the year 2012-2013 and account is also is in existence and he cannot tell how many Cheques he has given and how many Cheques are dishonoured and also categorically admits that some of the Cheques were dishonoured and also he admitted that he had maintained two accounts in Karnataka Bank. The counsel also brought to notice of this Court the suggestion made to DW1 that Ex.D1 and D2 are in respect of earlier transaction between the parties to the case and not in respect of repayment of the loan amount and hence, both the Courts have considered the material available on record in a proper perspective and hence, it doesn’t require any interference. 5. Having heard the learned counsel appearing for the respective parties and also on perusal of the material - 6 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 available on record, the points that would arise for the consideration of this Court are: 1. Whether the Trial Court and the First Appellate Court committed an error in appreciating the material available on record and the finding of both the Courts are against the material available on record and whether this Court can exercise the revisional jurisdiction? 2. What Order? Point No.1: 6. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, it discloses that the learned counsel for the petitioner brought to notice of this Court that in the complaint, nowhere stated that on what date, the amount was borrowed, except stating that the accused had borrowed the amount of Rs.2,00,000/- from the complainant and the complainant had demanded for repayment of the loan amount and the petitioner had - 7 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 issued the subject matter of cheque in the month of May 2015 and the same was dishonoured. No doubt, notice was also issued by the complainant and the accused did not reply to the said notice. It is the specific defence of the petitioner that he had borrowed an amount of Rs.1,30,000/- in the year 2013 and he had issued the subject matter of the cheque and he had repaid the amount of Rs.90,000/- as well as Rs.40,000/- in terms of Ex.D1 and D2 and the complainant did not return the subject matter of the cheque and misused the same. 7. It is important to note that in the cross- examination of PW1, he categorically admitted that there is no other transaction except this transaction between the complainant and the accused and both of them are friends having acquaintance between them from last 8 to 10 years. This admission of PW1 is not only a stray admission as observed by the First Appellate Court since on three occasions, he made it clear that there is no any other transaction between the petitioner and the respondent. It - 8 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 is important to note that complainant also admitted the receipt of Rs.1,30,000/- in terms of Ex.D1 and D2. But only suggestion was made in the cross-examination of DW1 that the said payment in terms of Ex.D1 and D2 is in respect of earlier transaction and the said suggestion is also contrary to the admission given by PW1 in the cross- examination wherein specific answer was given by PW1 that except the subject matter of transaction, no other transaction was took place between them. It is important to note that the Trial Court also while passing an order made an observation that the accused though took the specific defence of repayment, did not rebut the evidence of complainant and the said observation is also erroneous. In paragraph 17, the Trial Court made an observation that the accused from his own evidence failed to rebut the presumption even by preponderance of probabilities. The very observation is erroneous when the accused placed the document of Ex.D1 and D2 and also took the specific defence that he had only availed the loan of Rs.1,30,000/- and he repaid the said amount in terms of Ex.D1 and D2. - 9 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 8. The First Appellate Court also committed an error in coming to the conclusion that it is only a stray admission and the same cannot be a stray admission. I have already pointed out that on three occasions, PW1 gave the answer that except this loan transaction, no other transaction between the petitioner and the respondent. When the accused has rebutted the evidence by placing the documentary evidence, ought to have appreciated the same in a proper perspective. Apart from that in the complaint, nowhere stated that on what date, this loan transaction was taken place and in the cross- examination of PW1, he says that loan transaction was taken place in the month of January, 2015. But the subject matter of cheque at Ex.C1 is dated 19.05.2015 and the said evidence is also contrary to the document at Ex.C1. When PW1 deposed that he made the payment in the month of January, 2015, what made him to receive the amount of Rs.40,000/- in terms of Ex.D2 on 01.01.2015 and there is no explanation on the part of the complainant to the documents at Ex.D1 and D2 except - 10 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 making the suggestion in the cross-examination that the same is in respect of earlier transaction. When there is clear admission on the part of PW1 that there was no other transaction except the subject matter of loan transaction, the very explanation on the part of the complainant is also not acceptable and hence, the petitioner has made out preponderance of probabilities by placing the documents at Ex.D1 and D2 for having made the payment of Rs.1,30,000/- by placing rebuttal evidence. It is the specific case of the petitioner that he had borrowed only Rs.1,30,000/- and the same was repaid and PW1 also categorically admits that there are no other transaction except the subject matter of loan transaction since they are friends from last 8 to 10 years. When such material is available on record, this Court is of the opinion that the petitioner has made out a ground to exercise the revisional powers in coming to the conclusion that both the Courts have not appreciated the material available on record in a proper perspective and there is perversity in - 11 - NC: 2025:KHC:65 CRL.RP No. 1503 of 2019 the finding. Accordingly, I answer the above point as affirmative. Point No.2: 9. In view of the discussions made above, I pass the following:
Decision
ORDER The criminal revision petition is allowed. The judgment and order dated 31.10.2018 passed in C.C.No.244/2015 by the Trial Court and the judgment and order dated 31.10.2019 passed in Crl.A.No.111/2018 by the First Appellate Court are set aside. Consequently, the petitioner/accused is acquitted for the offence punishable under Section 138 of N.I. Act. If any amount is deposited by the petitioner, the same is ordered to be refunded in favour of the petitioner on proper identification. Sd/- (H.P.SANDESH) JUDGE SN