Sri Sharanabasavaraja vs Sri Mahanthesh Arali
2022 Latest Caselaw 4119 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 10TH DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.69/2016

BETWEEN:

SRI SHARANABASAVARAJA
S/O MADIVALAPPA,
AGEDABOUT 40 YEARS,
R/A VIJAYA KLENN
NO.207/A, DOOR NO.B02, 5TH MAIN
PAVL CHINNAPPA LAYOUT,
BIKSAIPURA, NEAR ISRO LAYOUT
BENGALURU - 67.                             ... PETITIONER

            (BY SRI R. HEMANTH RAJ, ADVOCATE)
AND:

SRI MAHANTHESH ARALI
S/O SHANTHAPPA ARALI,
AGED ABOUT 30 YEARS,
R/AT NO.34, RUDRA NILAYA,
GRUHALAKSHMI COLONY,
1ST STAGE, BASAVESHWARANAGAR,
BENGALURU - 79.                             ... RESPONDENT

                (BY SRI B.J.MAHESH, HCGP)


       THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF
CONVICTION DATED 23.02.2015 PASSED BY THE XXII ACMM,
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BENGALURU IN C.C.NO.18483/2012 AND ALSO SET-ASIDE THE
ORDER DATED 30.11.2015 PASSED BY THE COURT OF LXIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN
CRIMINAL APPEAL NO.432/2015 AND ALLOW THIS CRL.R.P.


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

                                 ORDER

This petition is filed under Section 397 of Cr.P.C., praying

to call for the records and set aside the order of conviction dated

23.02.2015 passed by the XXII Additional Chief Metropolitan

Magistrate, Bengaluru in C.C.No.18483/2012 and the order

dated 30.11.2015 passed by the Court of LXIII Additional City

Civil and Sessions Judge, Bengaluru in Criminal Appeal

No.432/2015.

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

respondent/complainant is that this petitioner approached the

complainant in the month of July 2011 and requested the

complainant to lend a loan of Rs.2 Lakhs to cope with the

financial constraints with an assurance to repay the same in a

span of 2 to 3 months, but he did not repay the amount. Hence,

issued the cheque dated 17.09.2011. When the cheque was

presented, the same was returned with an endorsement as

"Insufficient Funds". In spite of the demand he did not comply

with the same. Hence, a complaint is filed, took the cognizance

by the Trial Court. The accused was secured. The

complainant/respondent examined himself as P.W.1 and got

marked the documents Exs.P1 to P6. The 313 statement of the

accused is also recorded. The petitioner/accused has examined

himself as D.W.1. After remand of the case, he was not cross-

examined. Subsequent to the remand, he adopted the cross-

examination has made earlier. The Trial Court considering both

oral and documentary evidence placed on record convicted the

petitioner for an offence punishable under Section 138 of the

N.I.Act and also ordered to pay a sum of Rs.2,05,000/-, in

default of payment of the compensation amount, the accused

shall undergo simple imprisonment for a period of one year.

Being aggrieved by the said judgment of conviction passed on

23.02.2015, the petitioner has filed an appeal in

Crl.A.No.432/2015.

4. The Appellate Court on 30.11.2015 on re-

appreciation of both oral and documentary evidence placed on

record confirmed the judgment of conviction, sentence and

dismissed the appeal. Being aggrieved by the said conviction

and sentence and also confirmation, the present revision petition

is filed before the Court.

5. The learned counsel appearing for the petitioner

would vehemently contend that it is not in dispute that earlier an

order of conviction was passed and the same has been

challenged and the Appellate Court remanded the matter setting

aside the order on the ground that no evidence was adduced

only affidavit is filed by the accused/petitioner herein. The

learned counsel would vehemently contend that after the

remand, no cross-examination was done. In spite of it, the Trial

Court accepted the case of the complainant and erroneously

convicted the petitioner herein. The learned counsel also would

submit that the Appellate Court on re-appreciation of the

evidence committed an error and failed to take note of non

cross-examination of the complainant. Hence, the order passed

by the Trial Court is perverse and it requires an interference of

this Court by exercising the revisional jurisdiction.

6. Per contra, the learned counsel appearing for the

respondent would submit that he also not disputes the fact that

earlier there was a conviction and the matter was remanded.

The learned counsel also submit that after the remand the

petitioner herein was examined but on the same day, the

respondent herein adopted the cross-examination which was

recorded earlier by the Trial Court. The learned counsel also

would submit that the said adoption is also not disputed. Hence,

now he cannot contend that there was no cross-examination.

The petitioner herein kept quiet when the cross-examination

made earlier was adopted and now only on technicality he is

raising the objection and the Court has to do the substantial

justice not on the technicality. The learned counsel also would

submit that earlier affidavit was filed i.e., only in respect of chief

evidence and cross-examination was done on oath. Hence, the

same cannot be discarded as contended by the learned counsel

for the petitioner.

7. Having heard the learned counsel appearing for the

petitioner and the learned Counsel appearing for the respondent

and on perusal of the material available on record, the points

that would arise for consideration of this Court are:

(i) Whether the Trial Courts have committed an error in convicting, sentencing and confirming the order of sentence for an offence punishable under Section 138 of the N.I.Act and whether it requires invoking of the revisional jurisdiction as contended by the learned counsel for the petitioner?

(ii) What order?

Point No.(i):

8. Having heard the respective counsel and on perusal

of the material available on record, the petitioner not disputes

the issuance of cheque, which is marked as Ex.P1. The only

contention raised by the petitioner before the Trial Court is that

one Jeevan has borrowed the loan from the brother of the

respondent herein. But he has issued the cheque on behalf of

Jeevan in favour of the brother of the complainant and he has

not availed any loan from the complainant and also from the

brother of the complainant. It is also his contention that the

said Jeevan repaid the amount. No doubt, in the cross-

examination of P.W.1 in the line of the said defense, cross-

examination was done. A specific suggestion was made that

Jeevan availed the loan from the brother and the same was

categorically denied. He also admits that his brother is now

staying in America. It is suggested that Jeevan availed the loan

of Rs.3 Lakhs from his brother and the said suggestion was

denied saying that he was not aware of the same. He cannot say

the exact date of availing the loan. But he claims that in July

2011, he gave the money just like that. However, he says that

he was having acquaintance with his family and he was a family

friend. Hence, he gave the money when he was having financial

constraints. It is also his evidence that he was having an amount

in his account and drawn an amount of Rs.1 Lakh and also he

was having cash with him. In total, he gave the amount of Rs.2

Lakhs, but he has not produced any document to show that he

was having the amount in his account.

9. On the other hand, D.W.1, i.e., the petitioner herein

though earlier filed affidavit which was discarded, he has been

examined before the Trial Court on oath, wherein also he

reiterated the averments made earlier in the affidavit in his chief

examination. No doubt, subsequent to the remand, he was not

cross examined. When he was examined before the Trial Court in

his chief examination, the learned counsel appearing for the

complainant mentioned before the Trial Court that the cross-

examination, which was done on 18.06.2014, he adopts the

same. The same is accepted. No objections were raised while

adopting the same. It is important to note that on perusal of the

earlier records though affidavit was filed earlier this petitioner

was cross-examined on oath on 18.06.2014. The Appellate Court

also while setting aside the earlier judgment taken note of the

fact that the accused cannot file any affidavit instead of leading

evidence before the Court in view of the judgment of the Apex

Court. When this petitioner was present while adopting the

cross-examination was done on oath on 18.06.2014, when the

petitioner was examined before the Court on oath on

06.02.2015, not disputed the very adoption of the cross-

examination done earlier dated 18.06.2014. Now, the learned

counsel would vehemently contend that when the earlier

evidence was discarded, the cross-examination portion which

was recorded on oath cannot be taken into consideration. The

earlier evidence is also not on oath i.e., only an affidavit filed

before the Court. Hence, the same was not considered in view

of the judgment of Apex Court. But the fact is that he was cross-

examined on oath is also not in dispute and the fact that he gave

the consent for adopting the cross-examination is also not in

dispute. When the submission was made before the Trial Court

that he was going to adopt the cross-examination dated

18.06.2014, on the very day of the examination made by the

petitioner he was very much present before the Court and the

same was accepted by the Trial Court adopting the cross-

examination. Now, the petitioner cannot blow hot and cold

contending that the same cannot be considered. The said

adoption was made with the consent of the petitioner only.

Hence, there is a force in the very contention of the learned

counsel for the respondent is that the earlier cross-examination

was also on oath. The learned counsel also would submit that

any concession on admission given by the counsel on record

against the law cannot be taken into consideration. The said

contention cannot be contended that the earlier evidence is

recorded on oath before the Trial Court and the same is not

against the law, only against the law earlier filing of affidavit by

the petitioner herein. Hence, the said contention also cannot be

accepted.

10. The other contention of the learned counsel for the

petitioner is on merits also both the Courts have not considered

the material on record. I have already pointed out that issuance

of cheque is not disputed and he admits the issuance of cheque

and only his contention is that he gave the cheque on behalf of

Jeevan and what made him to give cheque when the Jeevan

availed the loan particularly from the brother of P.W.1. There is

no explanation and the same is also considered by the Trial

Court as well as the Appellate Court. The petitioner herein has

to explain what made him to give a cheque on behalf of Jeevan

when the Jeevan had availed the loan. Hence, both the Courts

have not accepted the defense theory of the petitioners herein.

The petitioner has to rebut the evidence of the complainant and

mere examination by taking the defense that he had issued the

cheque on behalf of Jeevan cannot be accepted.

11. It is also important to note that the said Jeevan was

also not been examined before the Trial Court in order to

substantiate his contention, whether the said Jeevan was availed

the loan from the brother of complainant or not. In the cross-

examination earlier he categorically admitted that the said

Jeevan is residing at Davanagere. What prevented him in

examining the said Jeevan is also not forthcoming. All these

aspects have been considered by the Trial Court as well as the

Appellate Court. Hence, I do not find any ground to invoke the

revisional jurisdiction to come to a conclusion that both the

Courts have committed an error in appreciating the evidence

available on record. I do not find any perversity in the order

passed by the Trial Court as well as the Appellate Court. Hence,

I answered point No.(i) as 'negative'.

Point No.(ii):

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

following:

ORDER

The Revision Petition is dismissed.

Sd/-

JUDGE

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