The High Court
Case Details
1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.1438/2024 BETWEEN: VENKATESH S/O PATTELLAPPA AGED ABOUT 57 YEARS RESIDING AT NO.393 (SY. NO.126) N.H.207, BEERASANDRA DEVANAHALLI TALUK BENGALURU – 560 102. … PETITIONER (BY SRI. H.MALLAN GOUD, ADVOCATE) AND: M/S. YELAHANAKA MERCHANTS FINANCE CO., BYPASS B.B.ROAD, YELAHANKA BENGALURU – 560 064 REPRESENTED BY GPA HOLDER SMT. GIRIJA. … RESPONDENT (BY SRI. M. SUBRAMANI, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 20.09.2024 PASSED IN CRL.A.NO.1614/2019 ON THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU WHICH IS PRODUCED AT ANNEXURE A AND TO SET ASIDE THE CONVICTION ORDER DATED 24.06.2019 ON THE FILE OF XXV ACMM AT BENGALURU IN C.C.NO.25057/2016 WHICH IS PRODUCED AT ANNEXURE B AND ETC. 2 THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 26.03.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER This revision petition is filed by the petitioner/accused challenging the judgment of conviction and sentence dated 24.06.2019 passed in C.C.No.25057/2016 by the Trial Court and the judgment of confirmation dated 20.09.2024 passed in Crl.A.No.1614/2019 by the First Appellate Court. 2. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of the case of the complainant before the Trial Court that the complainant being the financial banker had advanced a loan of Rs.1 crore by way of cash to the accused on 22.12.2006 and the accused agreed to repay the same on daily basis through a pigmy collector an amount of Rs.1,000/-. But the accused did not pay the same and hence, on demand, the accused had issued the Cheque and 3
Legal Reasoning
confirmation on 13.03.2007. On presentation of the said Cheque, the same was dishonoured with an endorsement ‘payment stopped by drawer’ on 28.03.2007. Thus, a demand notice was issued on 30.04.2007 to the accused and the same was served since the notice was sent through certificate of posting as well as registered post but the accused did not comply the demand notice. Hence, filed the complaint. 4. The Trial Court took cognizance and thereafter secured the accused and accused did not plead guilty and claims to be tried. In order to prove the case of the complainant, she examined hermself as PW1 and got marked the documents at Ex.P1 to P11. Accused, to rebut the case of the complainant, examined himself as DW1 and got marked the documents at Ex.D1 to D3 during the course of cross-examination of PW1. Accused was subjected to 313 statement. The Trial Court considering both oral and documentary evidence placed on record particularly, the documents at Ex.P2 and P3 that is loan receipt and acknowledgment and also Ex.P4-Cheque comes to the conclusion that the accused had availed the loan of Rs.1 4 crore from the complainant company and not accepted the defence of accused that he did not avail any loan and only he had executed the document for the purpose of availing the loan but no such loan was given. The Trial Court comes to the conclusion that the documents available on record disclose about the transaction and the same has not been rebutted by the accused by placing any cogent evidence and hence, convicted and sentenced the accused to pay an amount of Rs.1,02,10,150/- and out of that amount, an amount of Rs.5,000/- is ordered to pay to the State. 5. Being aggrieved by the said judgment of conviction and sentence, an appeal was filed by the accused in Crl.A.No.1614/2019 and the First Appellate Court having considered the grounds which have been urged in the appeal discussed in detail while re-appreciating both oral and documentary evidence placed on record and comes to the conclusion that loan was sanctioned on 22.12.2006 and to corroborate the same i.e., granting of loan, Ex.P2 and PW3 were produced and the same establishes the issuance of Cheque for 5 the balance amount and also acknowledgment for having received the amount and confirmation of balance amount. Ex.P5 certainly establishes the fact of dishonour of Cheque for the reasons stated and notice was also issued and same was sent through RPAD as well as UCP. The Trial Court also taken note of admission given in the cross-examination of DW1 and those admissions will not help the defence of the accused. The First
Legal Reasoning
Appellate Court also taken the contention of the accused that he gave the Cheque to one Santhosh who was a pigmy collector of the complainant company and the same was also given for availing an amount of Rs.1,00,000/- as loan and extracted the admission given by DW1 in paragraph 24 and did not accept the defence and confirmed the judgment of the Trial Court and dismissed the appeal. Being aggrieved by the said concurrent finding of both the Courts, the present revision petition is filed before this Court by the accused. 6. The learned counsel for the petitioner would vehemently contend that first of all, PW1 was not having any authority to depose before the Court. It is also contend that in 6 substitution of PW1, a power of attorney was given to another and the same is elicited in the cross-examination of PW1 and inspite of it, the Trial Court committed an error in accepting the evidence of PW1 and ought not to have consider the evidence of PW1. The First Appellate Court also fails to take note of the said fact and committed an error. The counsel would vehemently contend that one Smt. Girija was examined before the Trial Court but earlier that, there was an authorization to her but substitution was made with one Smt. Anitha, but she was not examined. But the earlier power of attorney holder was examined. The order sheet dated 15.02.2018 discloses regarding substitution and the same has not been considered by both the Courts. The counsel also would vehemently contend that specific defence was taken by the revision petitioner that blank cheques are obtained by one Santhosh who was working as pigmy collector and no loan was sanctioned and even though no notice was served, the Trial Court committed an error in convicting the petitioner. There was no any cause of action to file the case. The cross-examination of PW1 probablises the case of the accused. The counsel would vehemently contend that blank 7 Cheque which has been obtained is conceded and there was no any payment of Rs.1 crore by way of cash. It is contend that an application was given only for loan of Rs.1,00,000/- and for availing of said loan of Rs.1,00,000/-, cheque was given to Santhosh and the same was not appreciated by the Trial Court. 7. Per contra, the learned counsel appearing for the respondent would vehemently contend that Smt. Girija had filed the complaint based on the power of attorney and the said power of attorney is also marked as Ex.P1. Both the Courts have given proper finding considering the evidence of both the complainant as well as the accused and even discussion was made with regard to eliciting the answer from PW1 as well as DW1 and categorical admission given by DW1 also considered by both the Courts. The counsel also would vehemently contend that while cross-examination of PW1, a suggestion was made to PW1 by the counsel for the accused. The counsel also would vehemently contend that DW1 admits the issuance of Cheque but payment was stopped and no reason was given and also not produced any document to show that what reason was given to 8 stop the payment. The counsel also would vehemently contend that Ex.P2 and P3 are the vital documents wherein acknowledged the receipt of Rs.1 crore and also the balance amount as on the date of issuance of document at Ex.P2. Once admitted the receipt of Rs.1 crore and execution of the document of Ex.P2 and confirmed the balance in terms of Ex.P3, no explanation was given by the accused for having executed the said documents the same will takes away the case of the accused. The Trial Court properly appreciated the same and the First Appellate Court also on re-appreciation of evidence considered the same. In paragraphs 24 and 25 of the judgment, the First Appellate Court taken note of admission of DW1 wherein he contends that the pigmy collector collected the Cheque and the same was discussed and even extracted the evidence of DW1 wherein he categorically admits the signature available in Ex.P3 and reasons are given and even signature on the Cheque also admitted by DW1 and same is discussed in paragraph 25 of the judgment and the First Appellate Court also given the reason while re-appreciating the evidence and held that no error is committed by the Trial Court. The counsel would 9 vehemently contend that when both the Courts have given finding based on the material on record, the question of interfering with that findings by exercising revision powers does not arise since the scope of revision is very limited. 8. In reply to the arguments of the learned counsel for the respondent, the learned counsel for the petitioner would vehemently contend that there is no any discussion about the authorization and collecting of blank Cheque is admitted and the same is also for advancing a loan of Rs.1,00,000/- and not for Rs.1 crore and hence, contend that this Court has to exercise the revisional jurisdiction. 9. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record as well as the grounds urged in the revision petition and the oral submission of the respective counsel, the points that would arise for the consideration of this Court are: 1. Whether both the Courts have committed an error in convicting and sentencing the accused for the offence punishable under Section 138 10 of N.I. Act and whether the order of both the Courts requires interference of this Court by exercising the revisional jurisdiction? 2. What order? Point No.1: 10. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that this Court has to take note of the very case of the complainant. The case of the complainant that the accused had approached the complainant for financial assistance and availed a loan of Rs.1 crore on 22.12.2006 and agreed to repay the same and though agreed to repay the same, did not repay the same. On repeated requests and demand, the accused issued the subject matter of Cheque dated 13.03.2007. It is also the case of the complainant that having availed the loan, document of Ex.P2 was executed and confirmed the balance amount as Rs.1,02,10,150/- by issuing the document at Ex.P3. It is also the case of the complainant that when the Cheque was 11 presented, surprisingly, came to know that payment was stopped. 11. The complainant in order to substantiate her case, she relied upon the document at Ex.P4-Cheque as well as Ex.P1 to P3. No doubt, in the cross-examination, it is elicited that on 29.01.2018, substitution application was filed under Section 256 regarding change of GPA and Smt.Anitha was given GPA to give evidence and the same is admitted and even the Trial Court also extracted the same in the discussion at paragraph 8 of the judgment and also taken note of the answer elicited from the mouth of DW1. Though he contend that one Santhosh was a pigmy collector of complainant firm that he has taken the Cheque with an intention to repay the same on the basis of Rs.1,000/- per day. However, taken note of cross-examination of DW1 wherein he admits issuance of Cheque and also admits that if such cheques are issued, the same will be noted in the books of accounts and the same was not produced before the Court. However admits that Cheque belongs to the Tanu Enterprises and also admits his signature in the said Cheque and 12 also admits that he was in need of money but says that Cheque was given for loan of Rs.1,00,000/- and also admits his signature available in Ex.P2 and P3 wherein receipt is issued for having received the money and also taken note of signature existing on consideration receipt as well as the letter issued along with confirmation of balance. The Trial Court taken note of these documents particularly Ex.P2 to P4. In view of answer elicited from the mouth of PW1 also taken note of by the Trial Court with regard to the capacity to make the payment, the Trial Court comes to the conclusion that though accused has been examined as DW1 who got marked Ex.D1 to D3, an unequivocal admission of DW1 during the course of cross-examination takes away the defence of accused and comes to the conclusion that presumption can be drawn and the same has not been rebutted. 12. The First Appellate Court also having reassessed the evidence available on record, particularly as pointed out by the counsel for the respondent/complainant, in paragraph 22 taken note of date of loan as well as issuance of Ex.P2 and P3 and comes to the conclusion that the same establishes the issuance 13 of Cheque and also the confirmation and issuance of notice. The Trial Court even extracted the admission given by PW1 regarding giving an authorization. Though PW1 admits that not produced any document for having fund of Rs.1 crore but taken note of very consideration receipt and confirmation letter of Ex.P2 and P3 and comes to the conclusion that the said admission will not come in the way of appreciation of evidence. 13. It is also important to note that in paragraph 24 of the judgment, the First Appellate Court also discussed with regard to the issuance of Cheque in favour of pigmy collector Santhosh and also the said Santhosh has not examined before the Trial Court. When the accused took the specific defence that he gave the Cheque for Rs.1,00,000/- in favour of Santhosh but there was no any document for having given a loan application for Rs.1,00,000/-. Apart from that stop payment instruction was given but no reasons are assigned as contended and First Appellate Court and the First Appellate Court also extracted the admission given by DW1 in paragraph 24 so also taken note of the fact that in the course of cross-examination, he has 14 specifically admitted the signature on Ex.P4 as well as Ex.P2 and P3 which clearly discloses for having received the amount of Rs.1 crore and also confirmation and also taken note of the presumption which has been discussed in paragraph 32 of the order of the Trial Court. 14. Having reassessed the evidence for the limited purpose of exercising the revisional jurisdiction, though PW1 admits that GPA was given to Smt. Anitha and also the amount was advanced on 22.12.2006 to different persons, both the Courts taken note of the documents at Ex.P2 and P3. The suggestion made to PW1 that they have collected the signed Cheque and other contents are filled up by them and the same was denied. Except this, nothing is elicited in the cross- examination. But the fact is that GPA which is marked as Ex.P1 is clear with regard to giving of authorization and though it is elicited that substitution was made, but, nothing is elicited in the cross-examination of PW1 that this power of attorney was withdrawn while substituting and only power of attorney given to 15 Smt.Anitha and that will not make disentitle PW1 to give evidence before the Court. 15. The document at Ex.P2 is very clear that having received the amount of Rs.1 crore wherein also 18% interest also agreed to repay the same and admits the signature as well as issuance of confirmation letter on 23.03.2007 wherein balance amount was also confirmed as Rs.1,02,10,150/- in terms of Ex.P3. Ex.P4 is the Cheque having issued the Cheque on the date of confirmation of balance amount and what made to give these documents at Ex.P2 to P4, nothing is explained by the accused. Ex.P8- notice is very clear for having advanced the amount of Rs.1 crore wherein also specific mention was made that due of Rs.1,02,10,150/-. It is the contention of the counsel for the petitioner that notice was not served. But the fact that notice was sent through RPAD as well as certificate of posting and Ex.P9 and P10 evidence the said fact. 16. It is important to note that in the cross-examination, categorically admits that if such notices are given to the address mentioned in the document, the same will be served and the 16 same was also taken note of by the Trial Court. It is also important to note that letter was addressed to the postal department in terms of Ex.P11 and there is an endorsement on the part of Sub-Post Master having acknowledging the same and hence, the admission given by DW1 takes away his case. He admits the issuance of Cheque so also books of accounts stating that if any Cheque was given, the same will be entered in the books of accounts and no difficulty to produce the same. If such Cheque was not given for liability, he would have produced the same. He also admits that he was in need of money but says that he has given an application for Rs.1,00,000/- and though contend that not having any acquaintance with the complainant but clear admission was given that in connection with loan, having the acquaintance with the complainant and also categorically admits that while signing the document, he would know the contents of the document and then only he would sign the same and admits Ex.P2 and P3 wherein clear statement is made having received the amount of Rs.1 crore and also acknowledging the balance but claims that documents at Ex.P2 and P3 were in printed form and admits that he knows the 17 contents of Ex.P2 and P3 and also he was aware of the same and also categorically admits that if any notice is sent to the particular address, notice will be served to him. When the suggestion was made that while availing the loan also very same address was given but admits that the same address was given as well as another address as 315/8. He categorically admits that he did not take any action against Santhosh when he did not get the loan and also not taken any steps even after the receipt of summons from the Court against the said Santhosh as well as the complainant. All these materials were also taken note of by both the Courts. When such materials were considered by both the Courts, the question of exercising the revisional jurisdiction does not arise since there is no any perversity in the finding of both the Courts. The scope of revision is very limited. Only if any perversity is found, this Court can interfere with the reasoning of both the Courts. 17. The main contention of the counsel for the petitioner that there was no any authorization. But the fact that Ex.P1 is in existence and the same is not in dispute. The only substitution 18 power of attorney was given to Smt. Anitha, but she was not examined. On the other hand, again, the power of attorney holder i.e., PW1 was examined before the Court and she was having acquaintance with the factual aspects of the case. When there is no material to show that Ex.P1 was withdrawn by the complainant company and such material was taken note of by both the Courts and even both the Courts have extracted the admission given by DW1 with regard to the substitution is concerned, the very contention of the counsel for the petitioner that both the Courts have not discussed the same cannot be accepted. 18. Having considered the other ground of the learned counsel for the petitioner that the blank Cheque was given to one Santhosh and not in favour of the complainant and the said contention cannot be accepted for the reason that Ex.P2 and P3 are in respect of execution of the same for having received an amount of Rs.1 crore as well as acknowledgment executed by the petitioner and the same has not been disputed and no probable defence has been raised by the accused. When such 19 material is available on record, the presumption lies in favour of the complainant and the same has not been rebutted by the accused placing any cogent evidence except taking the defence that Cheque was given in favour of Santhosh and this Court already made an observation that the said Santhosh has not been examined before the Trial Court. When such being the case, there are no materials to exercise the revisional jurisdiction since the scope and ambit of the revision is very limited. Hence, I answer the above point as negative. Point No.2: 19. In view of the discussions made above, I pass the following:
Decision
ORDER The revision petition is dismissed. Sd/- (H.P. SANDESH) JUDGE SN