H A Veerachari vs Manjappa
2021 Latest Caselaw 1328 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF JANUARY 2021

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.562 OF 2012

BETWEEN:

H.A. Veerachari,
S/o. Neelakantachari,
Age 59 years,
Occ: Employee in KPCL,
SVP Colony, Jog Falls
Sagar Taluk 577 401.
                                                    ..Petitioner
(By Sri. S.V. Prakash, Advocate)

AND:

Manjappa,
S/o. Ningaiah
Age: 47 years
R/o. Marati Keri,
SVP Colony, Jog Falls,
Sagar Taluk 577 401.
                                                    .. Respondent
(By Sri. Ganapathi, Advocate)

                                   ****

      This Criminal Revision Petition is filed under Section 397 of
the Code of Criminal Procedure, 1973, praying to call for the
records and set aside the judgment dated 05-03-2012 in
Criminal Appeal No.45/2009 passed by the Court of Fast Track -
Sagar, and also the judgment dated 04-04-2009 passed by the
Additional Civil Judge (Sr.Dn.) and J.M.F.C. Sagar, in
C.C.No.14/2004, etc.
                                               Crl.R.P.No.562/2012
                                 2


      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this
day, the Court made the following:

                           ORDER

The present petitioner as the accused was tried by the

Court of the learned Additional Civil Judge (Sr.Dn.) and J.M.F.C.

at Sagar (hereinafter for brevity referred to as the "Trial Court")

in C.C.No.14/2004, for the offence punishable under Section 138

of the Negotiable Instruments Act, 1881 (hereinafter for brevity

referred to as the "N.I. Act") and was convicted for the said

offence by its judgment of conviction and order on sentence

dated 04-04-2009.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the Fast Track Court, Sagar (hereinafter

for brevity referred to as the "Sessions Judge's Court") in

Criminal Appeal No.45/2009.

The appeal was contested by the respondent who was the

complainant in the Trial Court. The Sessions Judge's Court in its

order dated 05-03-2012 dismissed the appeal, confirming the

judgment of conviction and order on sentence passed by the

Trial Court in C.C.No.14/2004.

Crl.R.P.No.562/2012

Aggrieved by the said judgment, the accused has preferred

this revision petition.

2. The summary of the case of the complainant in the

Trial Court is that, himself and accused were known to each

other, since about six to eight years. Prior to the filing of the

complaint, the accused had transactions with the complainant

and was borrowing money whenever he was requiring the same.

Likewise, the accused borrowed loan of a sum of `90,000/-

from him on 06-06-2004 in order to meet his family necessities

and to meet his medical expenses. He had agreed to repay the

said loan amount together with interest thereupon at the rate of

`1.5%, within a month. Since he did not repay the said loan

amount, on the demand made by complainant for its repayment,

he issued a cheque bearing No.0390655 dated

02-08-2004, in favour of the complainant, for a sum of

`90,000/-, drawn on Canara Bank, Kargal Branch. When the

said cheque was presented for its realisation, the same came to

be returned dis-honored, with the banker's Shara 'funds

insufficient'. Thereafter, the complainant issued a legal notice,

demanding the payment of the cheque amount. However, the

accused instead of repaying the cheque amount, has issued an Crl.R.P.No.562/2012

untenable reply, which constrained the complainant to institute a

criminal case for the offence punishable under Section 138 of the

N.I. Act against the accused.

3. The accused appeared in the Trial Court and contested

the matter through his counsel. He pleaded not guilty and

claimed to be tried, as such, the Trial Court proceeded to record

the evidence wherein the complainant got himself examined as

PW-1 and got marked documents from Exs.P-1 to P-4. From the

accused's side, the accused was examined as DW-1 and as many

as thirty-nine documents were got marked from Exs.D-1 to

D-39.

4. The Trial Court after recording the evidence led before

it, by its impugned judgment of conviction dated 04-04-2009

convicted the accused for the offence punishable under Section

138 of the N.I. Act and sentenced him to pay a fine of

`1,20,000/-, in default, to undergo simple imprisonment for six

months.

Challenging the same, the accused preferred an appeal in

Criminal Appeal No.45/2009 before the learned Session's Judge's

Court, which after hearing both side, by its judgment dated Crl.R.P.No.562/2012

05-03-2012, dismissed the appeal, while confirming the

judgment of conviction passed by the Trial Court. Being

aggrieved by the same, the accused has preferred this revision

petition.

5. Learned counsel for the revision petitioner/accused is

appearing through video conference and learned counsel for the

respondent/complainant is appearing physically before the

Court.

6. The Trial Court and Sessions Judge's Court's records

were called for and the same are placed before this Court.

7. Heard the arguments from both side. Perused the

materials placed before this Court including the Trial Court and

Sessions Judge's Court's records.

8. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

9. During the pendency of this matter and at the stage of

arguments, the revision petitioner/accused has filed an

Interlocutory Application No.1/2021, under Section 482 of the Crl.R.P.No.562/2012

Code of Criminal Procedure, 1973 (hereinafter for brevity

referred to as the "Cr.P.C."), seeking permission to produce

additional documents, which are the certified copies of the

plaint and written statement in Original Suit No.91/2007 on the

file of the Additional Senior Civil Judge and J.M.F.C., Sagar, the

certified copy of the judgment and decree dated 25-02-2010 in

the O.S.No. 91/2007 and a certified copy of the judgment and

decree dated 21-02-2014 in R.A.No.159/2010 passed by the

learned Presiding Officer, Fast Track Court, Sagar.

10. The respondent/complainant has not filed his

objections to the said Interlocutory Application. Though this

Court specifically asked whether the respondent is willing to file

his statement of objections to the said Interlocutory Application

No.1/2021, learned counsel submitted that, he would not file the

statement of objections, however, he opposes the said

application orally. Still, he submits that the documents sought to

be produced under the interlocutory application are the certified

copies of the litigation which were pending adjudication between

the parties with respect to the same transaction.

Crl.R.P.No.562/2012

11. In the light of the above submission of the parties,

the points that arise for my consideration in this revision petition

are:

[i] Whether I.A.No.1/2021 filed under Section 482 of the Code of Criminal Procedure, 1973, deserves to be allowed?

[ii] Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court?

12. It is not in dispute that the parties are acquainted with

each other. In that regard, both PW-1 and DW-1, in their

respective evidence, have stated that, both of them were

acquainted with each other and that the complainant was

running a Provisions Store. The contention of the complainant is

that, on 06-06-2004, the accused had availed a hand loan of a

sum of `90,000/- from him. The accused has specifically denied

the same, both in the cross-examination of PW-1 as well in his

evidence as DW-1. On the other hand, the accused has taken a

specific contention that, it was in the year 1998, when he had to

undergo a heart surgery, he had availed a loan of a sum of

`6,000/- from the complainant, at which point of time, the

complainant had collected a blank, but duly signed cheque from

him as security and also several National Savings Certificates Crl.R.P.No.562/2012

(NSCs) as security. But without returning the said cheque, even

after clearance of the said loan amount, the complainant has

misused it. The suggestion made to PW-1 in that regard has not

been admitted as true by PW-1. However, the accused, as

DW-1, in order to support his contention has got marked

documents from Exhibits D-1 to D-39.

13. Learned counsel for the revision petitioner, in his main

point of argument, canvassed a point that, the accused has

seriously disputed the alleged financial capacity of the

complainant to lend the alleged sum of `90,000/- which was a

huge amount in the year 2004. However, the complainant has

nowhere produced any material to show that he had financial

capacity to lend so much of money. Thus, the presumption

formed in favour of the complainant stands successfully

rebutted.

He further submitted that the complainant has admitted

that, the accused had given him the National Savings Certificates

(NSCs) and their maturity amount of a sum of more than

`17,000/- was also given to him. That would further go to show

that the alleged transaction was only in the year 1998, that too,

with respect to an alleged loan of a sum of `6,000/- only, but the Crl.R.P.No.562/2012

alleged loan transaction of a sum of `90,000/- said to have been

taken place in June 2004, is only an imaginary one.

He further submits that the four documents now sought to

be produced through the present Interlocutory Application

No.1/2021 also goes to show that, with respect to the very

same alleged transaction of the alleged loan of `90,000/-

between the parties, a money recovery suit instituted by the

present complainant in O.S.No.91/2007 in the Court of the

learned Senior Civil Judge at Sagar, came to be dismissed on its

merit by its judgment dated 25-02-2010 and the appeal filed by

the plaintiff therein (complainant herein) in R.A.No.159/2010

before the learned Fast Track Court Judge at Sagar, also came to

be dismissed by its judgment dated 21-02-2014.

With this, he submits that, the said aspect and finding of

the learned Senior Civil Judge's Court given after due trial also

would go to show that, the alleged loan transaction dated

06-06-2004 is not proved by the plaintiff (complainant herein)

before it. As such, the alleged loan transaction is an imaginary

transaction and that the complainant has misused the cheque

given to him in the year 1998 by the accused.

                                              Crl.R.P.No.562/2012



     14.     Per    Contra,     learned    counsel     for    the

respondent/complainant who has not denied or disputed the

correctness or authenticity of the documents now sought to be

produced by the applicant through the present interlocutory

application, i.e. I.A.No.1/2021, submits that, though he admits

that the present complainant as a plaintiff had made a futile

attempt to obtain a decree against the present accused by

instituting a civil suit and the present complainant also having

failed in his attempt before the first appellate Court also, he

submits that in the instant case, it is a criminal case and since

the accused has not denied or disputed that the cheque at Ex.P-1

is issued by him bearing his signature, the Trial Court as well

the Sessions Judge's Court have rightly convicted the accused for

the offence punishable under Section 138 of the N.I. Act.

15. The complainant who got himself examined as PW-1,

in his support, got marked copy of the returned cheque at Ex.P-1

and got marked the signatures of the accused therein at

Ex.P-1(a) and (b), the endorsement issued by the banker while

returning the cheque, at Ex.P-2, copy of the legal notice said to

have been sent to the accused at Ex.P-3 and the postal

acknowledgement at Ex.P-4. The accused has not denied these Crl.R.P.No.562/2012

exhibits. On the other hand, he has admitted that Ex.P-1 is

shown to have been issued by him, but specifically contended

that the said cheque was not issued as a repayment towards the

alleged loan dated 06-06-2004 of alleged sum of `90,000/-, but

it was issued in its blank form in the year 1998 when he had

availed a loan of `6000/- from the complainant to undergo heart

surgery, the expected medical expenditure of which was more

than a lakh of rupees. However, the complainant has not

admitted the suggestions made to him in that regard in his

cross-examination as true. Thus, the aspect that the drawer of

the instrument at Ex.P-1 is the accused and when it was

presented by the complainant has returned without realisation

but with an endorsement that there was no sufficient funds in

the account of the drawer( accused), thereafter the complainant

has issued a legal notice to the accused, demanding the cheque

amount forms a statutory presumption in favour of the

complainant under Section 139 of the N.I. Act. However, the

said presumption is rebuttable.

16. In order to rebut the said presumption, the accused,

at the earliest point of time, is claimed to have sent a reply to

the legal notice to the complainant, wherein, he has taken a Crl.R.P.No.562/2012

contention that no loan transaction as alleged in the complaint

has ever taken place and the cheque in question was issued only

in the year 1998. Apart from the same, the accused herein has

also produced the copies of the National Savings Certificates

(NSCs.) from Exs.D-1 to D-19, alleging that those National

Savings Certificates were given to the complainant as a security

for the alleged loan transaction. The complainant has not

specifically denied that those National Savings Certificates were

given to him by the accused in the year 1998. Apart from the

same, the accused has also produced a copy of his complaint

said to have been lodged with the Police alleging that the

complainant was harassing him to pay a sum of `90,000/-, when

in fact he had not taken the loan. The complainant, in his cross-

examination as PW-1, has admitted that the accused had lodged

a Police complaint in that regard and the Police had summoned

him to the Police Station and had recorded his statement. In that

regard, the accused has also produced a copy of the complaint at

Ex.D-20 and endorsement given by the Police at Ex.D-21.

In order to further draw the attention of the Court that the

complainant was in the habit of lending money to various people

and used to collect blank cheques from them and also used to Crl.R.P.No.562/2012

harrass them for repayment of the higher amount than what

was actually lent, several suggestions were made to PW-1 in his

cross-examination giving the instances of several alleged loan

transactions said to have taken place between the complainant

and other different persons, but, PW-1 (complainant) has not

admitted those suggestions as true. However, PW-1 has stated

in his cross-examination that, for three or four persons he might

have given the loan. However, in order to further prove that the

complainant is also making use of the religious sentiments of the

people and himself in order to make unlawful gain from the

alleged loan transaction, the accused attempted to bring out

from the evidence of the complainant that, he has approached

various temples and made votive offerings towards the alleged

loan transaction, which suggestion was admitted as true by the

witness. In that regard, the accused has confronted several

letters said to have been written by the complainant to the

temple authorities and the reply by the temple authorities and

got them marked at Exs.D-25 to D-28.

No doubt, these statements made by the complainant, at

the maximum, would go to show that the complainant is very

much eager in pursuing his attempt to recover money from the Crl.R.P.No.562/2012

various people including the accused for the alleged recovery of

money. Merely because the complainant is said to have

approached many temples or merely because the complainant is

said to have filed money recovery case or the criminal case for

the alleged bouncing of the cheque against few other people,

from that itself, it cannot be concluded that the alleged

transaction in the present case has not taken place.

17. In the process of rebutting the presumption formed in

favour of the complainant, the accused has also attempted to

show that, the complainant had no financial capacity at the time

of the alleged loan transaction to pay the said huge sum of

`90,000/- in the year 2004. He has also stated that, in the year

2004, he had no occasion or reason to borrow any amount, much

less a sum of `90,000/- from anyone including the complainant.

In that regard, the first point the accused has confronted with

the complainant is about his alleged financial capacity. The

accused has questioned the financial capacity of the complainant

at more than one place in his cross-examination to elicit that the

complainant had no financial capacity to lend the said sum.

Though the complainant has not admitted the said suggestion as

true, but has stated that he was at the relevant point of time, Crl.R.P.No.562/2012

running a Provisions Store with a minimum or moderate business

in it. It is for the said reason, the complainant has stated that

he was also an income-tax assessee, but not filed any income-

tax returns. Thus, the first point, the accused could able to

show that the complainant though claims to have been financially

sound, was having very moderate business in his alleged

Provisions Store and that he was also not an income-tax

assessee.

18. Secondly, in the very same cross-examination of

PW-1, the accused could also able to bring from the mouth of

the complainant that, the complainant himself was a loanee,

having availed loan of a sum of `1,00,000/- from the State Bank

of Mysore at its Jog Branch on 01-04-2005. This goes to show

that, at the relevant point of time, when the complainant claims

that he had lent a huge sum of `90,000/- as loan to the accused,

he himself was not sound in his financial condition, which made

him to avail a loan of a sum of `1,00,000/- from a bank.

19. Thirdly, the complainant in his cross-examination has

also stated that, he has also availed loan from State Bank of

Mysore, Jog Branch, upto a sum of `1,00,000/- and utilised a Crl.R.P.No.562/2012

sum of `25,000/- from it for the purpose of improving the

Provisions Store. This goes to show that the complainant himself

was a regular loanee and has availed loan for his business

purposes.

20. Fourthly, The accused has also elicited in the cross-

examination of PW-1 that, one Sri. Govindaraju was a surety for

one of such loan availed by the complainant and that the

complainant became a defaulter by non-repayment of the said

loan, in which regard, the banker had issued him a notice. The

complainant as PW-1 initially denied the suggestion that he was

a defaulter, however, admitted that Govindaraju was a surety

for the loan availed by him and he admitted Ex.D-33 which is a

copy of the notice issued by the banker, demanding repayment

of the loan amount from the present complainant. PW-1 has

admitted the said notice. Thus, it goes to show that the

complainant himself was in debt trap and even the banker had

issued notice to him.

21. Fifthly, PW-1 in his cross-examination has stated that,

he has documents including the accounts to show that he had

financial capacity to lend `90,000/- to the accused as loan as on Crl.R.P.No.562/2012

06-06-2004. In his cross-examination, he has stated that he can

produce those documents to substantiate his contention.

However, when he was summoned for his further cross-

examination, at a later date on 18-10-2007, he has specifically

stated that he has not brought any documents to produce before

the Court and that he has no documents to show that he had

financial capacity to lend a sum of `90,000/- as on the date of

the loan. These aspects very clearly go to show that the

complainant had no financial capacity to lend a sum of `90,000/-

as on 06-06-2004 to the accused. In such a situation, when the

complainant himself was not financially in a good and sound

condition and he himself was in a debt trap and had invited

notice from the banker, which had lent him money, it is

improbable for him to lend a huge sum of `90,000/- to the

accused on 06-06-2004. In that circumstance, the defence of

the accused that the cheque which is at Ex.P-1 was given to the

complainant in respect of a previous loan transaction taken place

in the year 1998 between them, only as a security, proves to be

more reliable. It is also for the reason that, nowhere in his

evidence, PW-1 has denied the alleged loan transaction between Crl.R.P.No.562/2012

himself and the accused in the year 1998, when the accused is

said to have taken a hand loan of a sum of `6,000/- from him.

22. Added to the above, the complainant was admittedly a

business person knowing the worldly affairs. According to him,

he has lent money not just to the accused but also for other

persons against whom also, he has initiated various litigations

before different Courts of law. If that were to be the case, it is

expected of him in securing any document in support of the

alleged loan transaction said to have taken place on 06-06-2004.

However, PW-1 in his cross-examination has stated that, he has

not obtained any of the documents from the accused and no

writing was made and it is only on belief, he had lent such a

huge sum of money to the accused. The said statement also

does not inspire confidence of this Court to believe in it for the

reason that, when in their previous loan transaction said to have

taken place in the year 1998, the very same complainant had

collected various securities including National Savings

Certificates, copies of which are from Exs.D-1 to D-19, but in the

alleged subsequent loan transaction, alleged to have taken place

in the year 2004, how come he kept quiet without obtaining any

documents or without any documentation for an alleged loan Crl.R.P.No.562/2012

transaction, that too, of a higher amount, compared to their

earlier loan transactions.

These aspects have not been properly appreciated by the

Trial Court as well as the learned Sessions Judge's Court in their

proper perspective. On the other hand, merely by looking at

Ex.P-1 - cheque, cheque return memo at Ex.P-2, and legal

notice at Ex.P-3, both the Courts have jumped to a conclusion

that, the complainant has proved the alleged guilt against the

accused.

23. Since the above analysis now goes to show that, the

accused by leading his evidence and also producing several

documents in exhibit 'D' series and also through cross-

examination of PW-1 could successfully rebut the presumption

formed in favour of the complainant, and on the other hand, the

complainant could not able to prove the alleged loan transaction

dated 06-06-2004 between himself and the accused, it has to be

necessarily held that, the complainant has failed to prove the

alleged guilt against the accused.

In this background, since the respondent herein

(complainant) has admitted the institution of a civil case by him Crl.R.P.No.562/2012

in O.S.No.91/2007 before the learned Senior Civil Judge, Sagar

and the said suit after getting dismissed by the said Court,

preferring an appeal in R.A.No.159/2010 in the Court of the Fast

Track, Sagar, and the said appeal also coming to be dismissed

by the said Fast Track Court, the necessity of allowing the

interlocutory application, i.e. I.A.No.1/2021 does not arise.

24. For these reasons, since the Trial Court as well as the

learned Sessions Judge's Court have erred in appreciating the

evidence placed before them in their proper perspective and

have committed an error, which led them into giving an

erroneous finding in the matter, interference by this Court

through this revision petition is warranted.

Accordingly, I proceed to pass the following:-

ORDER

[i] I.A.No.1/2021 is dismissed;

[ii] The Criminal Revision Petition is allowed;

[iii] The impugned judgment of conviction and order

on sentence dated 04-04-2009, passed by the

learned Additional Civil Judge (Sr.Dn.) and J.M.F.C.,

Sagar, in C.C.No.14/2004, holding the accused guilty Crl.R.P.No.562/2012

of the offence punishable under Section 138 of the

Negotiable Instruments Act, 1881 and sentencing

him for the alleged offence, is set aside;

Consequently, the judgment passed by the

Court of the Fast Track at Sagar, dated 05-03-2012,

in Criminal Appeal No.45/2009, is also set aside.

[iii] The accused - Sri. H.A. Veerachari,

S/o. Neelakantachari, Age 59 years, Occ: Employee in

KPCL, SVP Colony, Jog Falls, Sagar Taluk - 577 401,

is acquitted of the offence punishable under Section

138 of the Negotiable Instruments Act, 1881.

Registry to transmit a copy of this order to both the Trial

Court and also the Sessions Judge's Court along with their

respective records forthwith.

Sd/-

JUDGE

BMV*