Sri Dodde Gowda vs Smt Drakshayani
2021 Latest Caselaw 2513 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 30TH DAY OF JUNE, 2021

                            BEFORE

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

     CRIMINAL REVISION PETITION No.3 OF 2019

BETWEEN:

Sri. Dodde Gowda
S/o. Mudde Gowda,
Aged about 60 years,
MPM Employee,
Fire Department,
Paper Town,
Bhadravathi,
Pin: - 577302.
                                                    ..Petitioner
(By Sri. K. Vijaya Kumar, for K V K Law Info.,)

AND:

Smt. Drakshayani,
W/o. H. Devendra Kumar,
Aged about 50 years,
R/a House No.257,
Suragitopu, 2nd Cross,
Bhadravathi,
PIN - 577 302.
                                                    .. Respondent
(By Sri. B.S. Prasad, Advocate)

                                  ****
      This Criminal Revision Petition is filed under Section 401 of
the Code of Criminal Procedure, 1973, praying to call for the
records in Criminal Appeal No.5023/2016 on the file of IV
Additional District and Sessions Judge, Shimoga, sitting at
Bhadravathi, and set aside the order dated 01-12-2018 passed in
                                                   Crl.R.P.No.3/2019
                                   2


Criminal Appeal No.5023/2016 on the file of the IV Additional
District and Sessions Judge, Shimoga, sitting at Bhadravathi and
also the order passed in C.C.No.4134/2010 passed by the
Principal Civil Judge and JMFC at Bhadravathi dated 31-08-2016
and allow the revision petition, by acquitting the petitioner for
the offence punishable under Section 138 of the N.I. Act, in the
interest of justice.

      This Criminal Revision Petition coming on for Admission,
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 Principal Civil Judge and Judicial Magistrate

First Class, at Bhadravathi, (hereinafter for brevity referred to as

the "Trial Court") in C.C.No.4134/2010, 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 31-08-2016.

Aggrieved by the same, the accused preferred a Criminal

Appeal in the Court of the IV Additional District and Sessions

Judge, Shimoga, sitting at Bhadravathi, (hereinafter for brevity

referred to as the "Sessions Judge's Court") in Criminal Appeal

No.5023/2016.

Crl.R.P.No.3/2019

The appeal was contested by the respondent who was the

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

order dated 01-12-2018 allowed the appeal in part, modifying

the order on sentence and fine passed by the Trial Court and

convicting and sentencing the accused to pay a fine of

`1,10,000/- within 30 days from the date of the said judgment

and in default, to undergo simple imprisonment for a period of

two months.

Aggrieved by the said judgments, the accused has

preferred this revision petition.

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

Trial Court is that, towards the repayment of the loan borrowed

by him, the accused had issued a cheque bearing No.026614

dated 06-09-2010, for a sum of `2,00,000/- drawn on

Corporation Bank, Jannapura Branch, Bhadravathi, Shimoga

District, to the complainant. The said cheque, when presented

by the complainant through her banker for realisation, returned

unpaid with the banker's shara "funds insufficient". It is

thereafter the complainant got issued a legal notice to the

accused, calling upon him to pay the cheque amount, however, Crl.R.P.No.3/2019

the accused did not respond. This made the complainant to

institute a criminal case against the accused for the offence

punishable under Section 138 of the N.I. Act in the Trial Court.

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 herself examined as

PW-1 and got marked documents from Exs.P-1 to P-7(a). From

the accused's side, the accused was examined as DW-1 and no

documents were got marked from his side.

4. The Trial Court after recording the evidence led before

it, by its impugned judgment of conviction dated 31-08-2016

convicted the accused for the offence punishable under Section

138 of the N.I. Act and sentenced him to undergo simple

imprisonment for a period of three months and also to pay a fine

of `2,75,000/- within thirty days, in default of payment of fine,

to undergo simple imprisonment for a period of fifteen days.

Challenging the same, the accused preferred an appeal in

Criminal Appeal No.5023/2016 before the learned Session's

Judge's Court, which after hearing both side, by its judgment Crl.R.P.No.3/2019

dated 01-12-2018, allowed the appeal in part, modifying the

order on sentence and fine passed by the Trial Court and

convicting and sentencing the accused to pay a fine of

`1,10,000/- within 30 days from the date of the said order and in

default, to undergo simple imprisonment for a period of two

months.

Being aggrieved by the same, the accused has preferred

this revision petition.

5. Learned counsel for the revision petitioner/accused and

the learned counsel for the respondent/complainant are

appearing through video conference.

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

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

7. Though this matter was listed for admission, however,

as desired by the learned counsels from both side, the

arguments on the main matter itself were heard from both side.

Perused the materials placed before this Court including the Trial

Court and Sessions Judge's Court's records.

Crl.R.P.No.3/2019

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

henceforth referred to as per their rankings before the Trial

Court.

9. After hearing the learned counsels for the parties, the

only point that arise for my consideration in this revision petition

is:

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

10. Learned counsel for the petitioner/accused in his

argument submitted that, he would not dispute the fact that the

complainant and accused were known to each other and that the

cheque at Ex.P-1 was drawn by the accused which returned

unpaid for the reason of insufficiency of funds as per the

banker's endorsement at Exhibit P-3. He also submitted that,

he would not dispute the issuance of legal notice by the

complainant to the accused at Ex.P-4, though the contention of

the alleged non-service of notice was taken by the accused in the

Trial Court.

He voluntarily submitted that, the ingredients of Section

139 of N.I. Act required to form a presumption about the Crl.R.P.No.3/2019

existence of a legally enforceable debt in favour of the

complainant would not be disputed by him.

11. In the light of the above submission of the learned

counsel for the petitioner/accused, drawing of the cheque at

Exhibit P-1 by the accused and dishonour of the said cheque by

the banker and also the issuance of the legal notice by the

complainant to the accused, demanding the payment of the

cheque amount, need not be discussed once again, taking

recourse to the evidence led by the parties. Still, the evidence of

the complainant as PW-1 corroborated by the documentary

evidence at Exhibits P-1 to P-7(a) would go to show that, the

complainant, as payee in the cheque and which cheque was

drawn by the accused had presented the said cheque for

realisation through her banker, however, the said cheque came

to be returned unpaid by her banker with the reason of

insufficiency of funds in the account of the drawer of the

instrument, as evidenced in the banker's endorsement at Exhibit

P-3. The copy of the legal notice at Exhibit P-4 coupled with

Certificate of Posting (UCP) at Exhibit P-6, postal receipt at

Exhibit P-5 would go to show that, the said notice at Exhibit P-4

was sent to the accused, both by registered post as well Under Crl.R.P.No.3/2019

Certificate of Posting (UCP). However, as could be seen from the

returned postal cover at Exhibit P-7, the notice sent to the

accused under registered post has been returned to the sender

with the postal endorsement "addressee has remained absent

during delivery time, hence return to sender". Still, considering

the fact that the said notice was also sent under Certificate of

Posting, which, according to the complainant (PW-1), has been

duly served upon the addressee and also in view of the fact that

the said statement of PW-1 has not been specifically denied from

the accused's side.

Further, more importantly, since the learned counsel for

the petitioner/accused submitted that, he would not dispute the

question of service of notice upon the accused, it has to be taken

that, the notice demanding the payment of the cheque amount

was issued by the complainant to the accused and despite which,

the accused admittedly has not met the demand made in the

notice. Thus, the presumption about the existence of a legally

enforceable debt forms in favour of the complainant. However,

the said presumption is rebuttable.

Crl.R.P.No.3/2019

12. In order to rebut the presumption formed in favour of

the complainant, the accused examined the complainant (PW-1)

extensively and also got examined himself as DW-1. In the

cross-examination of PW-1 as well in his examination-in-chief,

the accused as DW-1 contended that, there was no alleged loan

transaction between the complainant and himself at any point of

time. However, the cheque in question was issued by the

accused to one Smt. Devamma, his elder sister and she had, as

a security towards the financial transaction with the complainant,

given it to the complainant which was misused by her. However,

the complainant as PW-1 has denied the suggestions made to

her in the cross-examination in this regard. The evidence of

DW-1, in this regard, was denied from the complainant's side in

the cross-examination of DW-1. Therefore, in the light of the

evidence of the parties, both oral and documentary, the matter

has to be analysed.

13. Learned counsel for the petitioner/accused in his

argument submitted that, the complaint, the legal notice as well

the evidence of the complainant as PW-1 in the form of

examination-in-chief are all bald, vague and do not mention as

to when and how much the loan amount was given by the Crl.R.P.No.3/2019

complainant to the accused. He further submitted that, if the

alleged loan amount is for a sum of `1,00,000/-, then, how come

the accused issues a cheque for a sum of `2,00,000/- to the

complainant, is also unbelievable. Further, the complainant has

also failed to show her financial capacity to lend such a huge

amount as loan to the accused. Thus, these suspicions in the

case of the complainant rebuts the presumption formed in her

favour.

14. Learned counsel for the respondent/complainant in his

argument submitted that, the date and quantum of the loan

amount though have not been specifically mentioned either in

the complaint or in the examination-in- chief of PW-1, however,

the same has been elicited by the accused himself in the cross-

examination of PW-1. As such, the details as to the date and

quantum of loan amount has come on record.

He further submitted that, the financial capacity of the

complainant to lend the loan amount has been clearly explained

by the complainant as PW-1, which source revealed by her has

not been denied or disputed from the accused's side.

Crl.R.P.No.3/2019

15. The complainant, neither in her evidence nor in her

examination-in-chief as PW-1, has stated as to when the alleged

loan was given by her to the accused and how much of the

amount was given as loan. She has only stated that, towards

the repayment of the loan taken by him, the accused issued the

cheque at Exhibit P-1 to her. Even in the legal notice at Exhibit

P-4 also, the complainant has not stated as to when the loan was

given to the accused. However, in the legal notice at Exhibit

P-4, it is mentioned that, the loan availed by the accused was a

sum of `2,00,000/-.

The details as to the date of the alleged loan and quantum

of the loan have come out in the cross-examination of PW-1,

wherein she has stated that, the loan amount was for a sum of

`1,00,000/- given to the accused in cash. Thus, according to

the evidence of the complainant (PW-1), the loan amount was

only for a sum of `1,00,000/-. However, as already observed

above, the legal notice issued to the accused on behalf of the

complainant, a copy of which is at Exhibit P-4 mentioned the loan

amount as a sum of `2,00,000/-. Thus, between the legal

notice and the evidence of the complainant, there is a great

variation regarding the alleged loan amount.

Crl.R.P.No.3/2019

16. As to the date when the alleged loan was given to the

accused, the complainant, neither in her complaint nor in the

legal notice at Exhibit P-4 nor even in the examination-in-chief as

PW-1 has stated anything in that regard. However, in her cross-

examination, she has stated that it was on 6th or 7th day of

September-2010, the accused has taken loan from her.

However, eight days prior to that date, he had approached her

and made a request for the loan. Thus, according to the

complainant, the date of the alleged loan was either 6th or 7th of

September-2010. In the very same cross-examination, at not

less than three places, the complainant as PW-1 has stated that,

the accused had brought the cheque duly filled by him while

taking the loan amount. Thus, according to the complainant,

the cheque at Ex.P-1 was given to her by the accused

simultaneously when the accused is said to have collected a sum

of `1,00,000/- in cash from her as loan. However, even

according to the complainant (PW-1), the accused had taken the

loan from her, promising to repay the same in fifteen days,

which means, the alleged loan would have become due for

repayment only after fifteen days of the loan, i.e. not before

21-09-2010. However, admittedly, the cheque at Ex.P-1 was Crl.R.P.No.3/2019

presented by the complainant for its realisation much earlier to

that date. According to complainant (PW-1), she had submitted

the cheque to her banker for its realisation on 06-09-2010

itself, which means, on the very same date of the alleged loan

said to have been given to the accused in a sum of `1,00,000/-,

the complainant has presented the cheque said to have been

given by the accused which was for a sum of `2,00,000/-. Since,

even according to the complainant (PW-1), the period for

repayment of the alleged loan was fifteen days, the date of

presentation of the cheque was much earlier to the repayment

becoming due. Therefore, a serious doubt arises in the case of

the complainant regarding the loan transaction.

17. Secondly, as observed above, though the legal notice

at Exhibit P-4 mentions the loan amount as a sum of `2,00,000/-

, but, the complainant (PW-1) in her cross-examination as PW-1,

has specifically stated that the loan given to the accused was for

a sum of `1,00,000/-. No where she has stated as to how come

for a loan of a sum of `1,00,000/- which was repayable in

fifteen days, the loanee could bring a cheque for repayment of a

sum of `2,00,000/, that too, duly filled by him at the time of

availment of the loan. The evidence of PW-1 nowhere gives any Crl.R.P.No.3/2019

answer to this doubt, which doubt arises by a reading of the

evidence of the complainant (PW-1).

18. Thirdly, it is not the case of the complainant that the

alleged loan was attracting any interest payable by the accused

to the complainant. Thus, the alleged loan said to have been

availed by the accused was repayable by him in fifteen days and

only the principal amount without any interest thereupon was

required to be repaid. In such an event, how come the accused

bring a cheque as pre-prepared for double the amount of the

alleged loan amount and hand it over to the complainant

simultaneously while availing the alleged loan, has remained

un-answered by the complainant.

19. Lastly, according to the complainant, the date of the

loan was 6th or 7th September 2010. The date of the cheque at

Exhibit P-1 is 06-09-2010. The date of filing of the private

complaint in the Trial Court is admittedly 16-11-2010, which

means, within two months ten days of the alleged loan, the

complainant has filed a private complaint under Section 200 of

the Code of Criminal Procedure, 1973, against the accused,

alleging the offence punishable under Section 138 of the N.I. Act Crl.R.P.No.3/2019

against him. However, the complainant as PW-1 in her cross-

examination dated 07-06-2012, has stated that, since one year

prior to the filing of the complaint against the accused, she was

demanding from the accused for the repayment of the loan

amount. She has also stated that, on several occasions, she was

asking the accused to make the repayment of the loan, however,

the accused has denied that he has issued any cheque to her

(complainant) and stated that she can do whatever she wants.

If the said statement of the complainant that she was

demanding the loan amount from the accused since about one

year prior to the filing of the complaint is taken, then, the entire

case of the complainant falls to the ground on its own, as

demanding the payment of the loan amount which loan is said to

have been given on 06-09-2010 cannot be made about ten

months prior to the loan transaction. This makes it very clear

that, somehow after securing the cheque at Exhibit P-1, which

was signed by the accused, the complainant had misused the

same and filed the present case.

20. The above conclusion that the complainant has not

approached the Court with clean hands further gains support

from the evidence of DW-1, who has in his evidence reiterated Crl.R.P.No.3/2019

the defence taken up by him in the cross-examination of the

complainant (PW-1) and has stated that, his elder sister by name

Smt. Devamma and his brother-in-law - Sri. Dodde Gowda had

chit business and financial transaction with the accused. In that

connection, in July-2004, they had obtained a blank, but duly

signed cheque from the accused and had given the same to the

complainant as a security for their transaction. The said fact was

told to him by none else than his sister and brother-in-law at a

later stage. Though the said statement of the accused (DW-1)

was denied in his cross-examination, still, the various

discrepancies, material variations in the evidence of PW-1 makes

the defence of the accused as probable and thus making out a

case on preponderance of probabilities in his favour, the accused

could able to successfully rebut the presumption formed in

favour of the complainant.

21. However both the Trial Court as well the Sessions

Judge's Court have failed to notice this aspect and they were

carried away only with the statement of the complainant (PW-1)

and the documents marked by her from Exhibits P-1 to P.7(a)

and held the accused guilty of the alleged offence, which finding Crl.R.P.No.3/2019

of the Trial Court and the Sessions Judge's Court is perverse and

erroneous, as such deserves to be set aside.

22. In the light of the above, the alleged financial

incapacity of the complainant to lend the loan as canvassed by

the learned counsel for the petitioner/accused would not come to

the forefront. However, a reading of the evidence led by the

parties, more particularly of PW-1 would go to show that, she

joined by her husband is running a Provision Store wherein she

could able to make out a savings of a sum of `2,000/- per month

and that, she also has got income from her mother's house in

the form of sharing the lease amount of Mango garden being

maintained by her mother, has remained specifically un-disputed

and un-denied. From that evidence, though it can be inferred

that the complainant had financial capacity to lend such a huge

sum to the accused, still, the alleged financial capacity would not

make out a case for her against the accused, proving the alleged

guilt of the accused for the offence punishable under Section

138 of the N.I. Act.

23. Since as analysed above, the accused could able to

successfully rebut the presumption formed in favour of the Crl.R.P.No.3/2019

complainant and as the complainant could not able to prove the

alleged loan transaction with the accused, it has to be held that,

the complainant has failed to prove the alleged guilt against the

accused. Thus, the interference at the hands of this Court in the

impugned judgments is warranted.

Accordingly, I proceed to pass the following:-

ORDER

[i] The Criminal Revision Petition is allowed;

[ii] The impugned judgment of conviction and order

on sentence dated 31-08-2016, passed by the

Principal Civil Judge and Judicial Magistrate First

Class, at Bhadravathi, in C.C.No.4134/2010, holding

the accused guilty of the offence punishable under

Section 138 of the Negotiable Instruments Act, 1881

and sentencing him with imprisonment for a period

of three months and to pay a fine of `2,75,000/-,

and in default of payment of fine, to undergo simple

imprisonment for a period of fifteen days, is set

aside;

Consequently, the judgment passed by the IV

Additional District and Sessions Judge, Shimoga, Crl.R.P.No.3/2019

sitting at Bhadravathi, dated 01-12-2018, in Criminal

Appeal No.5023/2016, modifying the judgment of

the Trial Court is also set aside.

[iii] The accused - Sri. Dodde Gowda, S/o. Mudde

Gowda, Aged about 60 years, MPM Employee, Fire

Department, Paper Town, Bhadravathi, Pin:-577 302,

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*