Sri Thimmaiah vs Sri Eshwarappa
2022 Latest Caselaw 6018 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 4TH DAY OF APRIL, 2022

                          BEFORE

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

     CRIMINAL REVISION PETITION NO.590/2020

BETWEEN:

SRI THIMMAIAH
ALSO KNOWN AS POST THIMMAIAH
SON OF LATE CHIKKALAKKAIAH
AGED ABOUT 66 YEARS
RESIDING AT THORREMAVINAKERE
VILLAGE, BELLURU HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT-571432.                      ... PETITIONER

    (BY SRI IRFANA NAZEER, ADVOCATE [THROUGH V.C.])
AND:

SRI ESHWARAPPA
SON OF LATE HUCCHEGOWDA
AGED ABOUT 68 YEARS
RESIDING AT THORREMAVINAKERE
VILLAGE, BELLURU HOBLI
NAGAMANGALA TALUK
MANDYA DISTRICT-571432.                    ... RESPONDENT

               (BY SRI N.S.BHAT, ADVOCATE)


     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 13.02.2020 PASSED BY THE II
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ADDITIONAL DISTRICT AND SESSIONS JUDGE AT MANDYA IN
CRL.A.NO.179/2019 (ANNEXURE-B) AND TO SET ASIDE THE
CONVICTION AND THE SENTENCE IN THE JUDGMENT DATED
26.09.2019 PASSED BY THE ADDITIONAL CIVIL JUDGE AND
JMFC., NAGAMANGALA IN C.C.NO.527/2013 FOR AN OFFENCE
P/U/S.138 OF N.I ACT.


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


                              ORDER

This matter is listed for admission.

2. Heard the learned counsel appearing for the

petitioner and the learned Counsel appearing for the respondent.

3. The factual matrix of the case of the

complainant/respondent is that the complainant and the accused

are close friends. The petitioner herein had approached for

financial assistance of Rs.2 Lakhs for the purpose of his tractor

business and discharge the hand loans availed from others. On

15.04.2013, the complainant had paid Rs.2 Lakhs to the accused

at Bellur in the presence of witnesses, while receiving the

amount; the accused had promised the complainant to return

the same within three months. On the very same day, he had

issued post-dated cheque dated 10.07.2013 in favour of the

complainant. The petitioner did not repay the said loan amount

within time. When the cheque was presented, it was returned

with an endorsement as "Funds Insufficient". A legal notice was

issued on 24.07.2013 and the accused did not reply to the said

legal notice. Hence, a complaint is registered. The Trial Court

took cognizance and thereafter secured the petitioner, he did not

plead guilty.

4. The complainant in order to prove his case examined

himself as P.W.1 and got marked the documents as Exs.P1 to

P7(a). On the other hand, the petitioner/accused did not choose

to enter the witness box and adduced any defense evidence,

except cross-examining P.W.1.

5. The Trial Court after considering both oral and

documentary evidence convicted the accused for the offence

punishable under Section 138 of the N.I.Act and sentenced to

pay a fine of Rs.3 Lakhs. In default to pay fine the accused shall

undergo simple imprisonment for a period of one year. Being

aggrieved by the judgment of conviction and order on sentence,

an appeal is filed in Crl.A.No.179/2019 before the Appellate

Court. The Appellate Court on re-appreciation of both oral and

documentary evidence placed on record, confirmed the judgment

of conviction and order on sentence passed by the Trial Court

and dismissed the appeal. Hence, the present revision petition is

filed before this Court.

6. The learned counsel appearing for the petitioner

would vehemently contend that no opportunity was given to this

petitioner and the learned counsel also would submit that there

is preponderance of probability in favour of the petitioner. The

learned counsel also would submit that the very defense before

the Trial Court is that the cheque was given in favour of one

Kumaraswamy in connection with chit fund. During the course

of cross-examination, P.W.1 admitted that in the legal notice

both himself and the said Kumaraswamy, have signed. The

learned counsel also would submit that the cheque in question is

not a valid cheque in terms of the guidelines issued by the RBI

and the matter has to be remanded to the Trial Court to take the

specific defense and rebut the evidence of the complainant.

7. Per contra, the learned counsel appearing for the

respondent would submit that the cheque in question i.e., Ex.P1

is not denied and he admits the signature. Apart from that, the

legal notice was issued and no reply was given and also no

rebuttal evidence. In spite of an opportunity was given, the

same was not utilized. Hence, both the Courts have not

committed any error and even the Appellate Court also

considered the contention that no opportunity was given and in

detail discussed in the order for having given an opportunity and

the said opportunity was not utilized. Hence, the learned counsel

would submit that no grounds are made out to exercise the

revisional jurisdiction.

8. Having heard the respective counsel and also on

perusal of the material available on record, admittedly, no

dispute with regard to the signature available on document -

Ex.P1. But only the defense before the Trial Court is that the

cheque was given to one Kumaraswamy in connection with chit

fund. No doubt, the learned counsel for the petitioner brought to

the notice of this Court that in the admission, P.W.1 says that

both the complainant as well as Kumaraswamy have signed the

legal notice. On perusal of the document-Ex.P3, which does not

contain the signature of the complainant as well as the said

Kumaraswamy and the petitioner also not placed any material

before the Court for having received the notice which contains

the signature of the said Kumaraswamy and the complainant.

Merely because the said admission of stray sentence that it

contains the signature and the document does not contain the

signature of Kumaraswamy. Hence, the said contention cannot

be accepted.

9. The other contention is that no opportunity was

given and admittedly P.W.1 was cross-examined and 313

statement of accused was also recorded. Thereafter, an

opportunity was given to the petitioner to adduce defense

evidence. From March to July, no such effort is made to lead any

rebuttal evidence and even not examined the said

Kumaraswamy to prove the defense. When such being the case,

both the Trial Court as well as the Appellate Court considered the

evidence available on record in order to consider the

preponderance of probability also there must be a material

before the Trial Court. Except the said answer elicited, no

worthwhile cross-examination found in the cross-examination of

P.W.1. No doubt, it is settled law that the rebuttal of the case of

the complainant by way of two options. One is by effective cross-

examination of complainant and another by leading cogent

rebuttal evidence before the Court. In the case on hand, no

probable rebuttal evidence is adduced while cross-examining

P.W.1. I have already pointed out in the cross-examination of

P.W.1, no effective cross-examination with regard to the

defense, which was set out before the Trial Court. Hence, the

preponderance of probability also not in favour of the petitioner

since the petitioner has not probabilised the case as contended

by the learned counsel for the respondent. Having considered

the material available on record, the Trial Court also while

considering the matter on merits discussed the evidence

available on record, particularly, in paragraph No.18, discussed

with regard to cross-examination of P.W.1. In paragraph No.19

also, the Trial Court held that it is the burden shifted on the

accused to prove how the cheque - Ex.P1 gone to the hands of

the complainant, the same is also not been proved. In paragraph

No.20, drawn the presumption invoking Sections 118 and 139 of

the N.I.Act and the presumption also not rebutted while

adducing any cogent evidence. Hence, rightly comes to the

conclusion that the complainant has proved the case. The

Appellate Court also on re-appreciation of evidence available on

record, particularly, in paragraph No.15, taken note of the

evidence of P.W.1 and documentary evidence. In paragraph

No.16, taken note of the issuance of the legal notice and no

reply was given and comes to the conclusion that the

presumption is in favour of the complainant and the same is not

rebutted and in paragraph No.17 considered the total evidence

and not accepted the defense of the petitioner. Hence, I do not

find any error committed by both the Trial Court as well as the

Appellate Court. While exercising the revisional powers, the

Court has to look into the appreciation of matter both by the

Trial Court as well as the Appellate Court. If any perversity is

found in the appreciation of evidence, then, the Court can

exercise the revisional jurisdiction. The Trial Court as well as the

Appellate Court have not considered the cogent evidence

available on record, then, also with regard to the correctness of

the order of the Trial Court, the revisional Court can exercise the

powers. Hence, I do not find any such circumstances warranted

in the case on hand since no effective cross-examination of

P.W.1. Apart from that, no rebuttal evidence on the part of the

petitioner to rebut the case of the respondent/complainant.

With regard to, no opportunity was given also, the same is

against the records; in spite of opportunity was given the said

opportunity is not utilized by the petitioner. Hence, question of

remanding the matter as sought for by the learned counsel for

the petitioner does not arise. It is the matter of the year 2013

and the case was also disposed of before the Trial Court in the

year 2019; almost a decade has been elapsed and no meaning in

remanding the matter almost after a decade to give an

opportunity to the petitioner/accused to adduce evidence.

Hence, I do not find any merit to admit the revision petition.

10. In view of the discussions made above, I pass the

following:

ORDER

The Revision Petition is dismissed.

Sd/-

JUDGE

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