Sri Hari E vs Sri Shankar
2022 Latest Caselaw 5906 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 1ST DAY OF APRIL, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

         CRIMINAL REVISION PETITION NO.1419/2021

BETWEEN:

SRI HARI E
S/O ERASHETTY
AGED ABOUT 42 YEARS
R/AT NO.141, 1ST MAIN ROAD
1ST CROSS, SWATHANTRA NAGAR
SRI RAMPURAM
BENGALURU-560021.                      ... PETITIONER

            (BY SRI LAKSHMIKANTH K., ADVOCATE)

AND:

SRI SHANKAR, S/O DEVAIAH
AGED ABOUT 51 YEARS
R/AT NO.54/3, 1ST MAIN ROAD
SWATHANTRA NAGAR
SRI RAMPURAM
BENGALURU-560021                           ... RESPONDENT

          (BY SRI VINAYAKA KAMATH N., ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 RW SECTION 401 OF CR.PC PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF SENTENCE PASSED BY
THE XII ADDL. AND ACMM, BENGALURU (SCCH-8) IN
C.C.NO.5814/2019 DATED 29.02.2020 AND ETC.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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                             ORDER

Heard the learned counsel appearing for the petitioner and

the learned counsel appearing for the respondent.

2. The factual matrix of the case of the

respondent/complainant before the Trial Court is that the

petitioner had approached the respondent for hand loan of

Rs.3,00,000/- and executed the loan agreement in this regard.

The petitioner in terms of the said agreement, agreed to repay

the amount and subsequently revalidated the agreement on

15.05.2019 and in the month of June 2019, the petitioner paid a

sum of Rs.50,000/- and for repayment of the balance amount of

Rs.2,50,000/-, he had issued two cheques of Rs.1,25,000/- each

to the respondent. The respondent presented the cheques but

bankers gave an endorsement that 'drawer signature differs'.

Hence, the respondent approached the petitioner and demanded

for the repayment of the borrowed amount, but the petitioner

failed to repay the amount and hence, legal notice was issued

and the same was duly served and the petitioner did not reply to

the said notice. Hence, the respondent had filed separate two

complaints since the petitioner had issued separate cheques for

an amount of Rs.1,25,000/- each. The Trial Court took the

cognizance and registered the case in C.C.No.5814/2019. In

order to prove the case, the respondent examined himself as

PW1 and got marked the documents at Ex.P1 to P5 and inspite

of an opportunity was given, the counsel for the petitioner has

not cross-examined PW1 and even not led any defence evidence

and hence, the Trial Court convicted the petitioner and

sentenced to pay a fine of Rs.1,50,000/-. Being aggrieved by

the said order, an appeal was preferred in Crl.A.No.142/2021

and the Appellate Court after re-appreciation of both oral and

documentary evidence confirmed the judgment of the Trial

Court. Hence, the present revision petition is filed.

3. The learned counsel appearing for the petitioner

would vehemently contend that both the Courts have committed

an error in convicting the petitioner and not applied its mind and

the very reply given by the bank that the signature differs has

not been considered by the Trial Court as well as the Appellate

Court. The counsel also would vehemently contend that when

the cheques were returned with the endorsement, the Trial Court

ought not to have entertained the complaint. Hence, it requires

interference of this Court.

4. Per contra, the learned counsel appearing for the

respondent would submit that even though the cheques were

returned with an endorsement as 'drawer signature differs' this

petitioner not disputed the said cheques that whether cheque

belongs to his bank and also not sent the document to the

handwriting expert disputing the signature and even not cross-

examined PW1 and also not led any defence evidence. Hence,

the revision petition cannot be entertained.

5. Having heard the respective counsel appearing for

the parties and also on perusal of the material available on

record, the point that would arise for consideration of this Court

is:

(1) Whether the Trial Court as well as the Appellate Court

have committed an error in convicting the petitioner for

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

whether this Court can exercise the revisional

jurisdiction?

(2) What order?

6. Having heard the respective counsel appearing for

the parties and also on perusal of the material available on

record, it is the case of the respondent/complainant that the

petitioner had availed the loan of Rs.3,00,000/- from the

respondent and also entered into an agreement to repay the

same and out of Rs.3,00,000/-, an amount of Rs.50,000/- was

repaid and in respect of the remaining amount, the petitioner

had issued two separate cheques for an amount of Rs.1,25,000/-

each. In order to prove that there was an agreement with

regard to the loan transaction, Ex.P6-loan agreement was

produced before the Trial Court in C.C.No.5813/2019. The Trial

Court considering the evidence of the respondent rightly came to

the conclusion that the respondent had proved the case taking

note of loan agreement Ex.P6 produced in the connected matter

and the cheque which was subject matter of the petition. No

doubt, the endorsement was issued that 'drawer signature

differs', in order to substantiate the same, the petitioner has not

stepped into the witness box and the evidence of PW1 was

unchallenged and hence, the very contention of the petitioner

that drawer signature differs cannot comes to the aid of the

petitioner since the same is not proved before the Trial Court

examining himself. The Appellate Court on re-appreciation of

material on record, in paragraph 14, taken note of the

averments of the complaint regarding payment of Rs.50,000/-

and for balance amount, issued separate two cheques and also

taken note of witnesses who have not been cross-examined and

looking into the documentary evidence and also the evidence of

PW1 in paragraph 18, came to the conclusion that notice was

also issued calling upon the petitioner to pay the balance amount

but no reply was given to the said notice and it is not the case of

the petitioner that no such notice was given. Here it is not the

case of the petitioner that cheques were not belongs to him. If it

is true, he would have given reply immediately after the receipt

of the notice and the same was also not done. When such being

the material available on record, I do not find any error

committed by the Trial Court as well as the Appellate Court in

convicting and sentencing the petitioner to pay a fine of

Rs.1,50,000/- towards the subject matter of the cheques for

Rs.1,25,000/- each and the fine imposed by the Trial Court is

not exorbitant and the same is commensurate with the cheques,

since the transaction is of the year 2018. Hence, I do not find

any reason to interfere with the order of the Trial Court.

Accordingly, the revision petition is dismissed.

Sd/-

JUDGE

SN