Mr K Puneeth vs Smt Nirmala
2022 Latest Caselaw 3669 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 04TH DAY OF MARCH, 2022

                        BEFORE

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

   CRIMINAL REVISION PETITION NO.806/2020

BETWEEN:

MR. K.PUNEETH,
S/O S. KUMAR,
AGED ABOUT 37 YEARS,
R/AT:NO.23, 7TH MAIN,
10TH CROSS, AGRAHARA,
DASARAHALLI,
BENGALURU-560 023.
                                       ... PETITIONER

(BY SRI PRASANNA D.P., ADVOCATE)

AND:

SMT. NIRMALA,
W/O PRABHAKAR,
AGED ABOUT 31 YEARS,
R/AT:NO.29, 1ST, FLOOR,
13TH CROSS, 4TH MAIN,
AGRAHARA, DASARAHALLI,
BANGALORE-560 023.
                                      ... RESPONDENT


(BY SRI LAKSHMIKANTH K., ADVOCATE)


     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., PRAYING TO SET ASIDE
THE JUDGMENT AND CONVICTION PASSED BY THE IV
SMALL CUASES COURT AND XXX A.C.M.M., AND SCCH-6
BENGALURU IN C.C.NO.1662/2018 DATED 01.08.20218
AND CONFIRMED BY THE LVI ADDITIONAL CITY CIVIL AND
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SESSIONS JUDGE, BENGALURU, IN CRL.A.NO.1733/2018
DATED 06.01.2020 FOR THE OFFENCE P/U/S 138 OF THE
N.I ACT AND ACQUIT THE PETITIONER AND ETC.,


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

                        ORDER

Heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent. This matter is listed for admission.

2. The factual matrix of the case is that the

respondent herein had filed a private complaint under

Section 200 of Cr.P.C., for the offence punishable

under Section 138 of Negotiable Instruments Act,

wherein the allegation is made against this petitioner

that he has borrowed an amount of Rs.9,50,000/- and

for repayment of the said loan amount, he has issued

cheque dated 06.02.2018. When the said cheque was

presented, the same was dishonored. Hence, the

complaint is filed. The complainant/respondent herein

in order to prove her case examined one Muniraju as

P.W.1 and got marked the documents at Exs.P.1 to

P.12. The petitioner herein cross-examined P.W.1, but

not led any defence evidence.

3. The trial Court after considering both the

oral and documentary evidence accepted the case of

the complainant and not accepted the defence of

revision petitioner herein and hence, convicted the

petitioner herein and ordered to pay fine amount of

Rs.9,45,000/-. Being aggrieved by the same,

Crl.A.No.1733/2018 was filed before the Appellate

Court. The Appellate Court on re-appreciation of both

the oral and documentary evidence confirmed the

judgment of conviction and order of sentence passed

by the trial Court and dismissed the appeal. Hence, the

present revision petition is filed before this Court.

4. The main argument of learned counsel

appearing for the petitioner before this Court is that

first of all the very affidavit filed before the trial Court

is not sustainable in the eye of law. It is in the name of

one Muniraju, not in the name of the complainant. The

other contention of learned counsel for the petitioner is

that the findings given by the trial Court are perverse,

illegal and erroneous. The learned counsel vehemently

contended that before issuance of subject matter of

the notice, notice was issued against the respondent

herein claiming that only an amount of Rs.80,000/-

was borrowed from the husband of respondent herein.

The trial Court as well as the Appellate Court have

failed to take note of the notice issued by the petitioner

herein in terms of Ex.P.5. Hence, both the courts below

have passed the perverse order.

5. Per contra, learned counsel appearing for

the respondent submits that, though, defence was

taken that only an amount of Rs.80,000/- is borrowed

from the husband of the respondent, the same has not

been proved except taking the defence that nothing on

record to substantiate the contention of the petitioner

herein. The petitioner herein has not rebutted the case

of the complainant either by examining himself or

effected cross-examination of P.W.1 and defence

remains as defence. In the absence of any material to

accept the theory of defence, this Court cannot come

to the conclusion that perverse order is passed as

contended by the petitioner's counsel. Hence, there are

no grounds to admit the petition.

6. Having heard the respective counsel and

also on perusal of material on record, no doubt, the

affidavit filed before the trial Court is in the name of

one Muniraju and the respondent is Smt. Nirmala. On

perusal of sworn testimony of the

complainant/respondent, though, it is mentioned the

name as Muniraju and the same is signed by

Smt.Nirmala and also the factual aspects narrated in

the affidavit pertains to the contents of the complaint.

Hence, it is clear that it is cut and paste of mentioning

the name of the deponent, but factual aspects

corroborates the contents of the complaint and the

sworn testimony is also by the petitioner and only on

the technicality, this Court cannot discard the evidence

available on record for the mistake of the advocate

who prepared the affidavit. Hence, the very first

contention of the petitioner's counsel that the very

affidavit is not sustainable in the eye of law cannot be

accepted. The Court has to take note of substantive

justice and not technicality.

7. The second limb of argument before this

Court is that he has given the notice to the respondent

prior to the issuance of notice to the petitioner herein.

On perusal of records, no doubt, the legal notice was

issued on 03.02.2018 and reply was given by the

respondent herein to the counsel for the petitioner on

16.02.2018, wherein specific denial was made with

regard to taking loan of Rs.80,000/- from the husband

of the respondent and simultaneously, legal notice

dated 16.02.2018 was given based on the subject

matter of cheque to the petitioner herein. The

respondent has categorically denied the said

transaction in the legal notice and admittedly, legal

notice dated 16.02.2018 issued by the respondent

herein was also served and acknowledged the same on

17.02.2018 itself, but no reply was given by the

petitioner. If really the petitioner has not borrowed an

amount of Rs.9,50,000/- as contended in the legal

notice-Ex.P3, the petitioner would have given the reply

and has not given any reply and apart from that even

not led any rebuttal evidence before the trial Court

except taking the defence that only an amount of

Rs.80,000/- was borrowed from the husband of the

respondent herein. All these aspects was considered by

the trial Court and in the absence of any rebuttal

evidence by the petitioner herein, there is a

presumption under Section 139 of N.I.Act. It is already

pointed out that no reply was given and not led any

defence evidence and the petitioner has come up

before this Court by filing a revision petition

contending that the order passed by the trial Court is

perverse. Hence, the very contention of the petitioner's

counsel cannot be accepted and it is not a fit case to

admit the matter, since there is no rebuttal evidence

before the trial Court and also no reply was given and

not denied even the claim made by the respondent

herein by causing notice and even after receipt of

notice also, no reply was given and only defence was

set up owing to the fact that only Rs.80,000/- was

borrowed from the husband of the respondent herein.

Hence, it is not a fit case to admit the petition.

8. In view of the discussions made above, I

pass the following

ORDER

Criminal revision petition is dismissed.

Sd/-

JUDGE

PB