M G Nanjappa vs T K Jayaram
2022 Latest Caselaw 4979 Kant

                            1



       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.176/2019

BETWEEN:

M.G.NANJAPPA
S/O LATE GURUSIDDAPPA,
AGED ABOUT 61 YEARS,
R/O SIDDESHWARA NILAYA,
9TH CROSS, SIT EXTENSION,
NEAR WATER TANK,
TUMAKURU CITY-572 103
                                           ...PETITIONER

        (BY SRI YOGESH V. KATEMATH, ADVOCATE FOR
             SRI VIRUPAKSHAIAH P.H., ADVOCATE)
AND:

T.K.JAYARAM
S/O LATE KEMPARAMAIAH,
AGED ABOUT 57 YEARS,
BEHIND D.C.BUNGALOW,
NOW R/O PATTANAYAKANAHALLI,
SIRA ROAD,SIRA GATE,
TUMAKURU-572 135                         ...RESPONDENT

        (BY SRI CHANDAN SANJAY BHAT, ADVOCATE FOR
             SRI AMITH DESHPANDE, ADVOCATE )

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND CONVICTION ORDER PASSED BY THE II
ADDITIONAL CIVIL JUDGE AND JMFC, AT TUMAKURU IN
C.C.NO.5448/2015 DATED 05.08.2017 AND ETC.
                                 2




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


                           ORDER

This matter is listed for admission. Heard the learned

counsel appearing for the petitioner and the learned counsel

appearing for the respondent.

2. The factual matrix of the case is that this petitioner

had borrowed an amount of Rs.6 lakh for the purpose of

educational expenses of his children as they are studying in the

courses of Engineering and Agricultural in the month of July

2014 and agreed to repay the said amount within a period of one

year by selling his landed property. But he did not repaid the

said amount as agreed and on insisting, he had issued a post

dated cheque. When the said cheque was presented, the same

was returned with an endorsement 'funds insufficient'. Hence,

legal notice was issued to this petitioner and inspite of the said

notice, he was not replied to the same. Hence, the complaint

was filed under Section 200 of Cr.P.C for the offence punishable

under Section 138 of N.I.Act and the Court has taken the

cognizance and summon was issued to the petitioner and the

petitioner pleaded not guilty and the respondent/complainant

was examined as PW1 and got marked the documents at Ex.P1

to P9 and also examined two witnesses as PW2 and PW3 and on

the other hand, the petitioner herein also examined as DW1 and

got marked the documents at Ex.D1 to D6. The Trial Court after

considering both the oral and documentary evidence, convicted

the petitioner for the offence punishable under Section 138 of

N.I. Act and directed the petitioner to pay a fine of Rs.5,25,000/-

and the said order was challenged before the Appellate Court in

Crl.A.No.19/2017 and the Appellate Court also on

reconsideration of the material on record and also the oral and

documentary evidence, dismissed the appeal. Hence, the

present revision petition is filed before this Court.

3. The learned counsel appearing for the petitioner

would submit that both the Courts have committed an error in

considering the material available on record and particularly, the

defence which has been taken by this petitioner that he was not

having any financial constrains as on the date of the alleged

advancing of the loan amount. The counsel also would submit

that Ex.D1 to D3 are not considered by both the Courts and

those documents were also pertaining to the petitioner herein.

The counsel would submit that the very contention of the

petitioner is that the cheque in question is not belonged the

signature of the petitioner and this defence is also not

considered by both the Courts. Hence, it requires interference of

this Court

4. Per contra, the learned counsel appearing for the

respondent would submit that though the signature of the

petitioner herein is disputed stating that the same is not

belonged to him, he has not taken any steps to send the said

document to the hand writing expert and apart from that he had

made two payments and the same was suggested in the cross-

examination but he denies the same. But the documents

disclose that he had paid the amount of Rs.50,000/- twice. The

counsel also would submit that the legal notice was issued when

the cheque was bounced and the same has also been

acknowledged and not replied to the said notice and only an

after thought, these defences are taken and both the Courts

have appreciated the material on record and there is no ground

to invoke the revisional jurisdiction.

5. Having heard the respective counsel appearing for

the parties and also on perusal of the material available on

record it is clear that though the petitioner disputed his signature

at Ex.P1-cheque contending that the same is not belonged to

him, in order to prove his defence, he has not sent the said

document to the hand writing expert. The person who ascertain

the same has to prove the same. The other limb of argument is

that, no such transaction was taken place between the petitioner

and the respondent. But Ex.P9-Bank Statement discloses that

he has repaid the amount of Rs.50,000/- twice on 20.07.2015

and on 10.08.2015 but in the cross-examination of DW1 when

the suggestion was made in this regard, he denies the same. It

is also important to note that when the legal notice was issued

against this petitioner, the same has been acknowledged and not

replied to the same and there is no explanation from the

petitioner's counsel in this regard and apart from that it is a case

of the respondent that the petitioner had availed the loan in

order to pursue the education of his children and in support of

this contention, Ex.P4 to P6 - certificates are produced before

the Court. When the petitioner has not given any reply to the

notice and only during the course of the trial, he took the

defence that cheque was not belonged to him and also

suggestion was made that the cheque was stolen but he has not

given any complaint which clearly shows that the said defence is

an after thought defence.

6. The Trial Court after considering the defence of the

petitioner herein and also both the oral and documentary

evidence and the cross-examination portion of PW1 wherein he

categorically admit that in his daughter's account the amount is

not more than Rs.1 lakh and so also in the account of his son-

Siddesh not more than Rs.2 lakh. The transaction was to the

tune of Rs.6 lakh and Ex.P8- certified copy of sale deed was also

executed on 07.07.2015 which clearly discloses that in the said

year, the petitioner was in need of money wherein there is

recital to that effect and Ex.P8 also taken note by the Trial Court

as it is also the evidence of PW1 that he had drawn the amount

from the account of his wife and paid the same in favour of this

petitioner and Ex.P7-Bank Passbook also discloses that on

16.07.2014, Rs.6 lakh was drawn from the complainant's wife

account. Having considered all these materials it is clear that

there is presumption in favour of the respondent to convict the

petitioner herein for the offence punishable under Section 138 of

N.I.Act. The Appellate Court also on re-appreciation of material

available on record particularly in paragraph 21 taken note of the

defence of the petitioner herein and also considered the specific

defence of the accused that he had financial relationship with the

complainant and as such he used to contact the complainant

with respect to legal issues and thereby the complainant took

the said cheque for verification and kept in his custody and

subsequently misused the same. It is also observed that the

accused had not taken any steps against the complainant for

having misused the cheque or he has issued reply to the legal

notice. The Appellate Court also on re-appreciation of the

material on record stated that either complaint was given for

misusing the cheque or reply to the legal notice and hence,

dismissed the appeal.

7. Having considered the material on record and the

submission of the respective counsel for the parties, I am of the

opinion that both the Courts have considered the evidence of the

respondent as well as the petitioner herein and also given finding

that as no effort is made out by the petitioner herein to prove his

defence either by sending the disputed document - Ex.P1 to the

hand writing expert and also not given any complaint when the

cheque was misused and apart from that inspite of receipt of the

notice, no reply was given. Hence, I do not find any reasons to

interfere with the findings of both the Courts and the scope of

the revision is very limited and this Court can exercise the

revisional power only if the material is not properly considered

by the Trial Court and any perverse finding given by the Trial

Court and unless there is any perversity in the findings of both

the Courts, the question of invoking the revisonal jurisdiction

does not arise. hence, it is not a fit case to admit and

accordingly, the revision petition is dismissed.

Sd/-

JUDGE

SN