K S Srinivasa vs K B Ravi
2022 Latest Caselaw 4975 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 17TH DAY OF MARCH, 2022

                         BEFORE

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

       CRIMINAL REVISION PETITION NO.318/2021

BETWEEN:

K.S.SRINIVASA
S/O SANNANANJAIAH,
AGED ABOUT 46 YEARS,
R/O KALLABORNAHALLI VILLAGE,
DANDINASHIVARA HOBLI,
TURUVEKERE TALUK,
TUMAKURU DISTRICT-572 227.                ...PETITIONER

            (BY SRI NARAYAN M. NAIK, ADVOCATE)
AND:

K.B.RAVI
S/O BASAVARAJU,
AGED ABOUT 45 YEARS,
R/O KALLABORNAHALLI VILLAGE,
DANDINASHIVARA HOBLI,
TURUVEKERE TALUK,
TUMAKURU DISTRICT-572 227.               ...RESPONDENT

           (BY SRI JAMADAGNI P.S., ADVOCATE FOR
            SRI M.B.CHANDRACHOODA, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER PASSED BY THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, TIPTUR DATED
20.01.2021 IN CRIMINAL APPEAL NO.10008/2018 CONFIRMING
THE JUDGMENT AND ORDER OF CONVICTION PASSED BY THE
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LEARNED CIVIL JUDGE AND JMFC, TURUVEKERE                  DATED
08.02.2018 PASSED IN C.C.NO.413/2008.

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

                           ORDER

This matter is listed for admission.

This criminal revision petition is filed to set aside the

judgment and order passed by the V Additional District and

Sessions Judge, Tiptur dated 20.01.2021 in Criminal Appeal

No.10008/2018 confirming the judgment and order of conviction

passed by the learned Civil Judge and JMFC, Turuvekere dated

08.02.2018 passed in C.C.No.413/2008.

2. Heard the learned counsel for the petitioner and the

learned counsel for the respondent.

3. The factual matrix of the case of the respondent-

complainant is that he is well known to the petitioner and also a

close friend and they are living in the same village. This

petitioner borrowed a loan of Rs.84,000/- from the complainant

on 06.01.2007 for legal necessity and agreed to repay the same

within first week of December, 2007. But, he has not repaid the

same. When the complainant insisted for payment, the

petitioner has issued the subject matter cheque and when the

cheque was presented, the same has been returned with an

endorsement 'Exceeds Arrangement'. Hence, notice was issued

and no reply was given and thereafter, complaint was filed and

the Trial Court took cognizance for the same.

4. The respondent, in order to prove his case,

examined himself as P.W.1 and also other four witnesses as

P.Ws.2 to 5 and got marked the documents as Exs.P1 to P27.

On the other hand, the petitioner herein examined himself as

D.W.1 and got marked the documents as Exs.D1 and D2.

5. The Trial Court, after considering both oral and

documentary evidence placed on record, convicted the petitioner

for the offence punishable under Section 138 of Negotiable

Instruments Act ('N.I. Act' for short) and sentenced him to

undergo simple imprisonment for a period of 6 months and also

directed to pay compensation of Rs.90,000/-.

6. Being aggrieved by the judgment of conviction and

sentence, appeal is filed before the Appellate Court and the

same is numbered as Crl.A.No.10008/2018. The Appellate

Court, on re-appreciation of the evidence, confirmed the

judgment of the Trial Court. Hence, the present revision petition

is filed before this Court.

7. The main argument of the learned counsel for the

petitioner before this Court is that the complainant was not

having any financial capacity to advance the amount. The

counsel would also submit that the cheque is disputed by the

petitioner and he had lost the cheque and therefore, he gave a

complaint to the bank. The counsel would further submit that

model seal and signature particularly in Ex.P26 is different and

the Trial Court failed to take note of the evidence of D.W.1 and

also the document Ex.D1-bank endorsement and the same is not

accepted. Hence, it requires interference of this Court.

8. Per contra, learned counsel for the respondent would

submit that, though it is the defence of the petitioner herein that

signature does not belong to him, the same is not proved by

sending the same to a handwriting expert. Apart from that, he

himself went and gave the letter to the bank not to honour the

cheque. The witness, who has been examined before the Trial

Court comes and deposes before the Court that no such letter

was given in terms of Ex.D1. The counsel would also submit

that no reply was given to the notice and he claims that no such

notice was served on him. The complainant has examined the

post office official, who categorically deposes that notice was

served on the petitioner. With regard to the financial capacity is

concerned, the complainant has placed the document regarding

his capacity and the Trial Court also, while considering the

matter on merits, comes to the conclusion that the respondent

was having financial capacity to lend the loan.

9. In reply to the arguments of the learned counsel for

the respondent, learned counsel for the petitioner would submit

that, it is the specific case of the petitioner that cheque was lost

and the same was taken when the complainant visited the house

of the petitioner for carpentry work and the said aspect is also

not considered by both the Trial Court as well as the Appellate

Court.

10. Having heard the respective counsel and also on

perusal of the material on record, the points that would arise for

consideration of this Court are:

(i) Whether both the Courts have committed an error in convicting the petitioner for the offence punishable under Section 138 of N.I. Act and whether it requires interference by exercising revisional jurisdiction?

(ii) What order?

Point No.(i)

11. Having heard the respective counsel and also on

perusal of the material on record, the main contention of the

learned counsel for the petitioner before the Trial Court is that

the petitioner lost the blank cheque and the same does not

contain his signature. The petitioner also disputed the signature

found on Ex.P2-cheque. It is also his evidence before the Trial

Court that there was no transaction between the complainant

and the petitioner and no notice was given to him and the

respondent has created the document and also gave the letter to

the bank not to honour the cheque and relies upon the document

at Ex.D1-bank endorsement.

12. In the cross-examination, he categorically admits

that he is having acquaintance with the complainant. He also

admits that there were two cheque bounce cases against him

and both the cases are disposed of and in those two cases, they

have compromised. He also admits that he availed the loan of

Rs.20,000/- from the bank and he did not repay the same.

Hence, property was brought to sale. He also admits that he

filed a suit in O.S.No.33/2006 and also admits that the said suit

was dismissed. He also admits that respondent contested in the

panchayath election against him and he lost in the said election.

He also admits that he had obtained the cheque book from the

bank, but he cannot tell in which year he obtained the same.

But, he claims that he gave complaint to the Bank Manager. He

denied the suggestion that he did carpentry work in respect of

the house of the respondent. However, he admits that after

partition, he went and did the carpentry work. He also admits

that, complainant took the cheque when he did the carpentry

work. He has not given the complaint immediately in 2007, but

he only gave the complaint after he came to know about loss of

cheque and admits that the address mentioned in Ex.P2 belongs

to him. He also admits that, he has not mentioned the date on

which he lost the cheque in Ex.D1.

13. Further, in the cross-examination of P.W.1, he also

admits that he is not having any document for having lent loan

and he gave the money without collecting any documents. He

has not mentioned the date of notice in the complaint. It is his

claim that he made the payment in the presence of

Sri Raghupathy and suggestion was made that no such payment

was made in the presence of said Raghupathy and the same was

denied. He admits that on 22.01.2007, he also gave the money

to others through cheque. It is suggested that, he does the

financial business of lending money and the same was denied,

but, admits that he is engaged in the business of selling dry

coconut.

14. P.W.2 is the Manager of Vijaya Bank with regard to

the loan transaction is concerned. P.W.3 is a Manager of the

Karnataka Industrial Commercial Co-operative Bank in respect of

the cheque-Ex.P2. P.W.4 is the Postmaster, who comes and

deposes before the Court that notice issued against the

petitioner was served. The other witness is P.W.5, who comes

and says that no such Ex.D1 was given to the bank and he

volunteers to state that on 03.01.2008, no such letter was given

and by that time, he was working as Accountant.

15. Having considered the evidence of P.Ws.1 to 5 as

well as D.W.1, it is not in dispute that the petitioner disputes the

cheque which was issued and also claims that the signature on

the cheque does not belong to him. It is important to note that

cheque was dishonoured for the reason that 'Exceeds

Arrangement' and not for the reason that signature varies.

Apart from that, the petitioner has not taken any steps to prove

the fact that the signature not belongs to him by sending the

same to handwriting experts and the person who asserts that

the signature not belongs to him has to prove the same and

mere assertion will not come to the aid of the petitioner. The

petitioner has taken the very same defence that unsigned

cheque was lost. When the cheque was lost and was not signed,

why the petitioner gave the letter to the bank in terms of Ex.D1

that if any cheque is presented, not to honour the same, no

explanation. But, the Bank Manager has deposed before the

Court that no letter in terms of Ex.D1 was given to the bank.

Hence, the Trial Court also comes to the conclusion that Ex.D1 is

not proved since, the Bank Manager deposed that no such

document is given.

16. The other contention of the learned counsel for the

petitioner is that model seal and signature particularly in Ex.P26

varies from each other and there is a force in the contention of

the learned counsel for the petitioner. When the petitioner

admits that cheque belongs to his bank and he has taken the

cheque from the bank, he did not prove the defence that cheque

does not contain his signature and no efforts are made and only

in order to prove, he has produced Ex.D1. However, the Bank

Manager says that no such letter was given to the bank.

17. It is also important to note that according to the

petitioner, he lost the cheque but, he has not given any

complaint to the police or initiated any proceedings against the

respondent, except relying upon Ex.D1 and the same is also not

accepted by the Trial Court and the Trial Court comes to the

conclusion that the same is a created one.

18. It is also important to note that the petitioner also

took the defence that no notice was served. It is the contention

of the respondent that notice was served and he has not given

any reply. When the defence of no notice was served was taken

by the petitioner, in order to prove the service of notice, the

complainant also examined P.W.4-Postmaster, who deposed that

notice was served on such date.

19. When these materials are available on record, it is

clear that petitioner took several defence, however, those

defence are not proved by leading any cogent evidence. Apart

from that, signature found on Ex.P2 and also the original loan

documents which he executed in favour of P.W.2-Bank is clear

that signatures are one and the same. The original admitted

signature available in Ex.P25 and also the cheque-Ex.P2 is one

and the same. This Court can even compare the signature under

Section 73 of the Evidence Act.

20. Having taken note of all these material on record,

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

material on record and the very contention that both the Courts

have not considered the material on record cannot be accepted.

The very defence has not been proved by the petitioner by

placing any cogent evidence before the Trial Court and the

Appellate Court also in the appeal, on re-appreciation of the

material, particularly in paragraph Nos.9 to 12 discussed in

detail the evidence of D.W.1 and also considered the case of the

respondent in paragraph No.12 of the judgment and given

anxious consideration to the material on record and confirmed

the judgment of the Trial Court.

21. Having considered the grounds urged in the petition,

it is seen that the petitioner has not taken any steps to send the

document to Handwriting Expert and also deposed before the

Court that no notice was served on him. However, the

complainant proved the same by examining P.W.4 and his

evidence is clear that notice was served. In respect of the

defence that he gave the letter in terms of Ex.D1, the Bank

Manager also deposed that Ex.D1 is not given to the Bank, both

the Courts have taken note of Ex.D1 and comes to the

conclusion that the document of Ex.D1 is created. When such

being the factual aspects and material on record, I do not find

ground to invoke revisonal jurisdictional to come to an other

conclusion, when the judgment of the Trial Court and the

Appellate Court are not perverse and based on the material on

record, finding was given. In the absence of any perversity,

question of invoking revisional jurisdiction does not arise.

Point No.(ii)

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

following:

ORDER

(i) The Criminal Revision Petition is dismissed.

Sd/-

JUDGE

ST