Mr. Mohammed Ismail vs Sri Manjunath @ Manju
2022 Latest Caselaw 4876 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 16TH DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.412/2019

BETWEEN:

MR. MOHAMMED ISMAIL,
S/O AZHAR PASHA,
AGED ABOUT 32 YEARS,
RESIDING AT NO.1/4, RAJANNA LAYOUT,
4TH CROSS, 3RD BLOCK, JAYANAGAR,
BENGALURU-560 011.

AND ALSO AT C/O.UMA MANJUNATH,
NO.7, PAPAIAH STREET,
DODDAMAVALLI,
BENGALURU-560 004.                          ... PETITIONER

           (BY SRI VISHALAXA KADIWAL, ADVOCATE)

AND:

SRI MANJUNATH @ MANJU,
S/O. VEERABHADRAPPA,
AGED ABOUT 49 YEARS,
RESIDING AT NO.38/4,
KRUMBIGAL ROAD,
DODDAMAVALLI,
BENGALURU-560 004.                        ... RESPONDENT

             (BY SRI K.B.K. SWAMY, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 READ WITH 401 OF CR.P.C. PRAYING TO SET
ASIDE THE ORDER AND JUDGMENT PASSED BY THE HON'BLE
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XXI A.C.M.M., BENGALURU IN C.C.NO.30006/2011 ON
22.11.2016 AND CONFIRMED IN CRL.A.NO.1477/2016 ON THE
FILE OF THE LXIV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU CCH-65 ON 07.02.2019, BY ALLOWING
THIS CRL.R.P.

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

                          ORDER

Heard the learned counsel for the petitioner and the

learned counsel for the respondent.

2. The factual matrix of the case of the respondent/

complainant is that this petitioner had received an amount of

Rs.15 lakhs to meet his financial commitments. The petitioner

had promised to repay the amount within eight months and at

the time of availing the loan from the complainant, it was

understood that the accused would give some filled and some

blank signed cheques, so that the accused would at the

appropriate day intimate the complainant either to present the

filled cheques or to present cheques on such date for such

amount. But when he did not repay the amount, the cheques

were presented and the same were dishonoured. The petitioner

gave the complaint to Central Crime Branch and case was

registered and raid was conducted in the house of the

complainant and got the complainant arrested and the cheques

were seized by the police. The accused admitted having

borrowed an amount of Rs.15 lakhs in the complaint itself. The

subject matter of the cheque, when presented was returned with

an endorsement "insufficient funds." Hence, legal notice was

issued and the petitioner did not comply with the demand and

the complaint was filed. The complainant got examined himself

as P.W.1 and got marked the documents at Exs.P.1 to 22. The

petitioner examined himself as D.W.1 and got marked the

document at Ex.D.1. The Trial Court after considering both oral

and documentary evidence placed on record, convicted the

petitioner directing him to pay an amount Rs.15,10,000/- as fine

and in default to undergo simple imprisonment for a period of

ten months. Being aggrieved by the judgment of conviction and

sentence, an appeal was filed in Crl.A.No.1477/2016. The

Appellate Court, on re-appreciation of the evidence available on

record, dismissed the appeal. Hence, the present revision

petition is filed before this Court.

3. The main contention of the petitioner before this

Court is that he has given the complaint and based on the

complaint, raid was conducted to the house of the

complainant/respondent and subject matter of the cheque was

seized. He took the specific defence before the Trial Court that

he has already repaid the entire amount and the same has not

been considered by the Trial Court and the Appellate Court.

Hence, both the Courts have committed an error in not

considering the material available on record.

4. Per contra, the learned counsel for the respondent

would submit that when the document Ex.P.20 is looked into,

the petitioner has categorically admitted that he borrowed an

amount of Rs.15 lakhs and though he claims that he has repaid

Rs.9 lakhs, no documents are placed before the Court and only

oral evidence is adduced and hence both the Courts have come

to the conclusion that for having repaid the amount, there is no

material.

5. Having heard the learned counsel for the petitioner

and the learned counsel for the respondent and also on perusal

of the material on record, in Ex.P.2 the petitioner himself has

admitted categorically that he has borrowed an amount of Rs.15

lakhs from the respondent/complainant. The only allegation is

that the respondent was charging interest at the rate of 10%

and he has paid the interest to the tune of Rs.9 lakhs. It is

specifically mentioned in the complaint that when the petitioner

went near the house of the complainant to pay the money with

interest, he made galata even though he requested him he will

pay the principal amount and interest amount as soon as

possible and he did not hear the words of the petitioner. An

allegation is also made that the respondent was collecting penal

interest and hence requested to take action against him. When

the document Ex.P.2 is looked into, the petitioner has

categorically admitted that he took time to pay the principal

amount and interest amount, but the respondent is not hearing

the words of the petitioner. When such admission is available in

terms of Ex.P.2, the admitted fact need not be proved under

Section 58 of the Evidence Act and it is his defence that he has

repaid the amount. In order to substantiate the same, no

material is placed before the Trial Court and both the Courts

have taken note of the same and considering the contents of

Ex.P.2, the very contention of the learned counsel for the

petitioner that the petitioner repaid the entire amount cannot be

accepted. On the basis of Ex.P.2, raid was conducted to the

house of the complainant and it is not the case that subsequent

to Ex.P.2, the petitioner has repaid the amount. When such

being the contents of Ex.P.2, both the Courts have taken note of

the oral evidence of D.W.1 regarding repayment is concerned

and when documents are not placed before the Trial Court for

having repaid the amount, both the Courts have given the

concurrent findinga. Hence, I do not find any substance in the

contention of the learned counsel for the petitioner that both the

Courts have committed an error. Having taken note of Ex.P.2

and oral evidence of the petitioner, it is not a fit case to exercise

the powers under Sections 397 read with 401 of Cr.P.C. to

interfere with the findings of the Trial Court and hence it is not a

fit case to invoke revisional jurisdiction.

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

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

MD