Karnataka High Court
Sri S Nagaraj vs Smt Sowbhagya on 28 February, 2022
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1370/2021
BETWEEN:
SRI S.NAGARAJ
S/O LATE SEENAPPA
AGED ABOUT 59 YEARS
R/AT NO.8, 14TH CROSS
22ND MAIN, RAGHAVENDRA LAYOUT,
CHOWDESHWARI TEMPLE ROAD
PADMANABHANAGAR
BENGALURU - 560 070. ...PETITIONER
(BY SMT.SARITHA A.L., ADVOCATE FOR
SRI S.SHANKARACHAR, ADVOCATE)
AND:
SMT. SOWBHAGYA
W/O S.M.GOWDA
AGED ABOUT 65 YEARS
R/AT NO.98, 2ND MAIN ROAD,
MICO LAYOUT, BTM 2ND STAGE
JAYANAGAR, BENGALURU - 560011. ...RESPONDENT
(RESPONDENT IS SERVED & UNREPRESENTED)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
07.10.2016 IN C.C.NO.30719/2016 ON THE FILE OF XXIII
ACMM, BENGALURU, WHICH IS CONFIRMED BY THE JUDGMENT
DATED 04.10.2021 IN CRL.A.NO.1297/2016 ON THE FILE OF
2
LXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-63), PETITIONER BE ACQUITTED FOR THE
CHARGES AND THIS CRL.RP. BE ALLOWED AS PRAYED FOR.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel appearing for the petitioner.
The respondent though served is unrepresented and not
engaged any counsel.
2. The factual matrix of the case of the prosecution is
that the respondent has filed a private complaint before the
learned Magistrate contending that the accused Nos.1 and 2 are
the husband and wife and they are well acquainted with
complainant and accused Nos.1 and 2 have taken hand loan of
Rs.2,43,000/- from the complainant on different dates for
construction purpose. In this regard, on 28.04.2009, accused
Nos.1 and 2 have executed an agreement in favour of the
complainant. The complainant was in possession of an amount
of Rs.12,50,000/- as she has sold the house site and also she
was getting monthly rent of Rs.30,000/-. The accused, in order
to discharge their liability, issued two blank signed cheques and
the accused had requested the complainant to present one of the
blank cheque. On presentation, the same was returned with an
endorsement 'insufficient funds' and thereafter, legal notice was
issued and the same was acknowledged and no reply was given.
Hence, complaint is filed and the Trial Court also took cognizance
and the accused/petitioner herein denied the very transaction.
3. The complainant/respondent, in order to prove her
case, examined himself as P.W.1 and got marked the documents
as Exs.P1 to P10 i.e., complaint, original cheque, signature found
on the cheque, bank endorsement, legal notice, postal receipt,
UCP receipt, postal acknowledgement card, agreement,
signature of accused No.1 and also bank pass book to show that
she was having money to pay the amount. The complainant
herself, who was examined as P.W.1 also effectively cross-
examined by the accused and confronted the document of Ex.D1
i.e., certified copy of the sale deed. The petitioner herein has
not led evidence before the Trial Court to rebut the case of
respondent.
4. The Trial Court, while convicting the petitioner
herein, in paragraph No.18 has taken note of the cross-
examination of P.W.1. The learned counsel for the accused
himself has suggested that the petitioners herein are responsible
for payment of the amount which has been mentioned in the
said particular cheque. Hence, the Trial Court comes to the
conclusion that the said suggestion itself is enough to hold that
accused No.1 has admitted the claim of the complainant. Apart
from that the Trial Court also taken note of the fact that accused
No.1 has admitted that he has issued blank cheque to the tune
of Rs.2,43,000/-. Hence, convicted the accused.
5. Being aggrieved by the said order of conviction and
sentence, the accused has filed the appeal in
Crl.A.No.1297/2016. The Appellate Court also, having
considered the material available on record, from paragraph
Nos.14 to 17 of the judgment, considering the material on record
on appreciation of entire evidence, comes to the conclusion that
the accused failed to prove the fact that he has not issued the
cheque for discharge of legally enforceable debt. The Appellate
Court also taken note of the contents of Ex.P1 and comes to the
conclusion that no rebuttal evidence on the part of the petitioner
herein.
6. Learned counsel appearing for the petitioner
vehemently argued that the petitioner has disputed the cheque,
agreement and also the postal acknowledgement signature
available on Ex.P7.
7. In order to substantiate the defence of the petitioner
herein, first of all, the respondent has not led any evidence. The
documents i.e., cheque, agreement as well as the postal
acknowledgement card are not sent to Handwriting Expert,
except taking the defence that those documents does not
contain the signature of the petitioner herein. No doubt, P.W.1
has been cross-examined and even in the absence of defence
evidence, the Court can come to the conclusion that there was
no such transaction. But, in the cross-examination, certain
aspects are elicited that she is not aware of stamp paper and
purchasing of stamp paper but, she has given the explanation.
The petitioner herein, before availing the loan, entered into an
agreement i.e., Ex.P8. The complainant has given the
explanation and apart from that, when P.W.1 was cross-
examined with regard to source of income is concerned, she has
categorically stated that she has sold the property and having
the money of Rs.12,50,000/- and the complainant relied upon
the bank statement to evidence the source of income.
8. When such being the factual aspects and reasoning
is given and the complainant also explained with regard to
source of income and both the Courts have taken note of the
material available on record, this Court also cannot invoke
Section 397 read with Section 401 of Cr.P.C. only on the
contention of the revision petitioner that the petitioner has not
led the evidence before the Trial Court and remand the matter.
Apart from that, this Court also cannot remand the matter to fill-
up the lacunae of the learned counsel appearing for the
petitioner. When such being the factual aspects, particularly the
documents of cheque and agreement is also produced before the
Court, it is not a fit case to invoke Section 397 read with Section
401 of Cr.P.C. to reverse the findings of the Trial Court. Hence,
I do not find any merit to allow the revision petition.
9. In view of the discussions made above, I pass the
following:
ORDER
The revision petition is dismissed.
Sd/-
JUDGE
ST
