Sathyanarayana Jetty vs Shivalingaiah
2022 Latest Caselaw 5068 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 21ST DAY OF MARCH, 2022

                          BEFORE

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

          CRIMINAL REVISION PETITION NO.558/2013

BETWEEN:

SATHYANARAYANA JETTY
P.C. 6100, ACP OFFICE
KAMAKSHIPALYA
BENGALURU-560079

RESIDENTIAL ADDRESS:
NO.1, 17TH 'B' CROSS
BDA ROAD, AGRAHARA DASARAHALLI
BANGALORE
                                            ... PETITIONER

(BY SRI. S SURESH, ADVOCATE)

AND:

1. SHIVALINGAIAH
S/O SIDDE GOWDA
AGED ABOUT 64 YEARS
SINCE DECEASED, REP. BY
LEGAL REPRESENTATIVES

2. SMT. GOWRAMMA
W/O LATE SHIVALINGAIAH
AGED ABOUT 63 YEARS

3. M.S.R. GOWDA
S/O LATE SHIVALINGAIAH
AGED ABOUT 44 YEARS
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4. SMT. M.S. SHIVAKUMARI
D/O LATE SHIVALINGAIAH
AGED ABOUT 40 YEARS

5. MR. M.S. SHIVAKUMAR
S/O LATE SHIVALINGAIAH
AGED ABOUT 37 YEARS

ALL ARE R/A #750/1, II FLOOR
4TH MAIN, 9TH CROSS,
M.C. LAYOUT
BENGALURU-560040
                                              ... RESPONDENTS

(BY SRI B PAPEGOWDA, ADVOCATE FOR R2 TO R5;
R1 IS DECEASED)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 CR.P.C PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCE AND FINE IMPOSED DATED
20.12.2011 PASSED BY THE XXI A.C.M.M., BANGALORE IN
C.C.NO.31627/2006 AND ETC.

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


                            ORDER

Heard the learned counsel appearing for the petitioner and

the learned counsel appearing for the respondents.

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

herein had approached the complainant during the first week of

November 2005 and requested for hand loan of Rs.2 lakh to

meet his business commitments. Accordingly, the complainant

agreed to pay the amount of Rs.2 lakh and paid the same on

06.11.2005 with a condition to repay the same within three

months along with the interest at the rate of 12% p.a. and the

accused had issued a post dated cheque dated 06.02.2006

stating that the loan amount will be cleared on the said date. On

the assurance of the accused, the complainant had presented

the said cheque for encashment and the same was returned with

an endorsement 'funds insufficient'. Hence, the legal notice was

issued to the petitioner herein through registered post as well as

certificate of posting. Inspite of service of notice, he did not

comply with the demand. Hence, the complaint was filed under

Section 200 of Cr.P.C for the offence pus 138 of N.I.Act.

Thereafter, the Trial Court taken cognizance and complainant in

order to substantiate his contention examined himself as PW1

and got marked the doc at Ex.P1 to P11. On the other hand, the

petitioner herein was examined as DW1 and not marked any

document. The defence of the petitioner herein before the Trial

Court is that he was not aware of the complainant and he had

issued the cheque in favour of the complainant's son in order to

stand as guarantor for his loan since he is in need of money.

The Trial Court after considering the oral and documentary

evidence available on record, convicted the petitioner and

ordered to pay fine of Rs.3 lakh as against the cheque amount of

Rs.2 lakh and default sentence also imposed. Hence, an appeal

was preferred by the petitioner in Crl.A.No.60/2012. The

Appellate Court also on re-appreciation of evidence, dismissed

the appeal and confirmed the order of the Trial Court. Hence,

the present revision petition is filed.

3. The learned counsel appearing for the petitioner

would submits that the Trial Court at the first instance acquitted

the petitioner and thereafter he had filed an appeal in

Crl.A.No.465/2010 and the matter was ordered for retrial and

after the retrial, the petitioner was convicted for the offence

punishable under Section 138 of N.I.Act and thereafter, an

appeal was filed. The counsel further submits that the

complainant was not having any source of income to lend the

amount of Rs.2 lakh and not produced any document before the

Trial Court. The counsel also would submit that no cheque was

issued in favour of the complainant and cheque was issued in

favour of the complainant's son since he was in need of money

in order to avail the loan, he had issued the said cheque. The

counsel would submit that there was a delay in lodging the

complaint and delay was condoned without giving any notice.

The counsel would submit that the complainant was not aware of

the address of the petitioner and he had issued notice to two

addresses and notice was also not served and inspite of all these

material contradictions, the Trial Court committed an error in

convicting the petitioner for the offence punishable under

Section 138 of N.I.Act. The counsel further submits that the

Appellate Court also failed to re-appreciate the material available

on record and not considered the grounds which have been

urged before the Appellate Court and committed an error in

confirming the order of the Trial Court. Hence, it requires

interference of this Court.

4. Per contra, the learned counsel appearing for the

respondent/complainant would submit that regarding service of

notice is concerned, the Trial Court in paragraph 11 of the

judgment discussed in detail that where the petitioner was

working. The petitioner also not disputed the fact that he was in

the said address and definite finding was given with regard to

the service of notice. The counsel would submit regarding delay

is concerned and same was questioned since the matter was

attained its finality and now he cannot raise the issue with

regard to the delay in filing the complaint.

5. The learned counsel for the respondent would submit

that issuance of cheque is admitted. The counsel would submit

that the amount was paid out of his savings since he retired in

the year 2001 itself and also he was having agricultural income.

In order to prove the said fact also, he had produced the

documents before the Trial Court to show that he was having

source of income i.e., Ex.P11-pension payment order book,

Ex.P10-patta book, Ex.P9- RTC extracts. All these documents

show that he not only having the pension benefit but also having

the agricultural income. The counsel would submit that the very

contention of the petitioner is that the cheque was given as

security and in order to prove the said fact that he had issued

the cheque as security, the petitioner has not taken any steps

when the cheque was not returned since he contend that the

cheque was given as security and no step or action was taken

even against the son of the complainant in whose favour the

cheque was given and hence, both the Trial Court as well as

Appellate Court have not considered the defence of the petitioner

and hence, there is no grounds to entertain the requirement of

the revisional jurisdiction.

6. In reply to the arguments of respondent counsel, the

counsel for the petitioner would submit that, the order was

passed on 19.03.2010 in respect of the delay is concerned and

within a span of four days, an order of acquittal was passed and

he did not challenge the same.

7. Having heard the respective counsel appearing for

the parties and also on perusal of the material available on

record the point that would arise for consideration are:

(1) Whether the Trial Court had committed an

error in convicting and sentencing the petitioner

and whether the Appellate Court also committed

an error in confirming the order of the Trial Court

and whether it requires interference of this Court

exercising the revisional jurisdiction?

(2) What order?

Point No.1:

8. Having heard the respective counsel appearing for

the parties and also on perusal of the material available on

record it discloses that the issuance of cheque is not in dispute.

The very contention of the counsel for the petitioner is that the

said cheque was issued in favour of the son of the complainant

in order to get the loan from the bank. In order to substantiate

the fact that the cheque was issued as security to the

complainant's son, there was a cross-examination by the

complainant's counsel and during the cross-examination, DW1

categorically admits that while obtaining the loan from any bank,

loan application has to be signed even by the guarantor and the

same is admitted that he has not signed any such loan

application. But he only claims that when he was received the

summons from the Court, he came to know about the dishonour

of the cheque but he admits that since then, he has not given

any notice to the complainant's son to return the cheque. He

categorically admits that he has not registered any criminal case

against him when he did not return the cheque. He also admits

that even after appearance before the Court also he has not filed

any objections stating that for what purpose he gave the

cheque. He claims that the complainant's son was intended to

avail the loan from SBI, Basaveshwaranagar Branch to the tune

of Rs.2 lakh and hence, he gave the cheque as surety. Having

admitted the fact that he has not signed any loan application

while taking the cheque and also he has not taken any action

against the son of the complainant for having misused the

cheque. Hence, it is clear that no criminal case is also registered

against the son of the complainant for misusing the said cheque.

It is also important to note that this petitioner is working in the

police department as police constable and when the cheque was

misused, he would have given the complaint either to the police

or to any other authority and even not given any letter to the

bank stating that 'not to honour the cheque' when the cheque

was misused and hence, the first contention that the cheque was

given in favour of the son of the complainant and no action was

taken against him cannot be accepted since the petitioner has

not proved the said defence.

9. The second contention of the learned counsel for the

petitioner is that there is no source of income to pay the amount

of Rs.2 lakh to the respondent. Admittedly, the complainant is a

retired person and he was getting the pension and in order to

prove the same he had relied upon the document at Ex.P11 to

show that he is a pensioner. The other contention of the

petitioner's counsel is that the respondent is getting the pension

only to the tune of Rs.1,000/- but the contention of the

respondent's counsel is that out of his retirement benefit, he had

made the payment in favour of the petitioner and apart from

that the complainant also relied upon the document at Ex.P9 -

RTC extracts eight in numbers and also Ex.P10-patta book to

show that he is also an agriculturist. When such being the

factual aspects of the case, the very contention of the petitioner

that respondent is not having source of income cannot be

accepted and the same has been disputed by the Trial Court.

10. The other contention of the petitioner's counsel is

that notice was issued to the two address and no doubt, notice

was issued to the two addresses and in the notice, PC number is

also mentioned and also the petitioner not disputes the fact that

he was working in Kamakshipalya police station as PC and when

such being the facts of the case, notice is given to the working

place and notice also issued through both UCP as well as

registered post and registered post was returned with an

endorsement 'intimation was delivered' and the Trial Court also

considered the said aspect in paragraph 11 of the judgment and

came to the conclusion that there was proper service of notice.

Hence, this contention cannot be accepted. Both the Trial Court

and Appellate Court have considered the aspect regarding

issuance of notice is concerned. It is not the case of the

petitioner that he was not working at Kamakshipalya police

station at the time of issuance of notice and when such being the

fact that notice was given to the correct address in which he was

working as PC. The contention of the petitioner in this regard

also cannot be accepted.

11. The other contention of the learned counsel for the

petitioner that there was a delay in lodging the complaint and no

notice was given before condoning the delay. The counsel for

the respondent would submit that the matter has been attained

its finality and now he cannot contend that no notice was given.

Admittedly, the petitioner submits that the order of delay

condonation was passed and immediately within four days, he

was acquitted and same is not challenged. But the fact is that,

the said order was challenged before the Appellate Court by the

respondent herein and the Appellate Court remanded the matter

in Crl.A.No.465/2010 setting aside the order of acquittal. When

the matter was remanded to the Trial Court, the petitioner ought

to have been raised the very same objection before the Trial

Court and the same has not been done and already when the

matter was attained its finality, the question of entertaining he

application for condonation of delay in entertaining the complaint

does not arise. When said facts are in the knowledge of the

petitioner, now he cannot contend that delay was condoned

without giving any notice and hence, the said argument is also

cannot be accepted.

12. Having considered both the oral and documentary

evidence available on record and the defence of the petitioner

before the Trial Court is that he has given the cheque in favour

of the son of the complainant and not in favour of the

complainant and in this regard, no effective cross-examination

was made and it is elicited that in order to get the loan, the

guarantor also has to sign the loan application and no such loan

document is signed as admitted by DW1 and apart from that he

has not taken any action against the son of the complainant

when he did not return the cheque and counsel also would

submit that son of the complainant was not examined since

admitted by PW1 that he was no more. But the fact is that when

he had given the cheque to get the loan from the bank when he

intended to avail loan from the bank and if no such loan was

taken and cheque was not returned, the petitioner ought to have

taken steps but no steps has been taken as rightly contended by

the learned counsel for the respondent and the very theory of

defence of the petitioner cannot be believed. Admittedly, the

cheque-Ex.P1 was issued by the petitioner and in order to

substantiate his defence, no rebuttal evidence is available before

the Court except examining himself as Dw1, no documentary

evidence is placed before the Court to consider that he had

issued the cheque as security in order avail loan from the bank

to the son of the complainant and the material goes against the

petitioner herein. Hence, I do not find any error committed by

both the Courts in appreciating both the oral and documentary

evidence. This Court can exercise the revisional jurisdiction only

when this Court finds the perversity in the judgment of the Trial

Court as well as the Appellate Court in not considering the

cogent evidence available before the Court. When such being

the factual aspects, this Court is of the opinion that both the

Courts have properly considered the material available on

record. Hence, it is not a fit case to exercise the revisional

jurisdiction.

13. The counsel for the petitioner would submit that the

Trial Court imposed the fine of Rs.3 lakh though the cheque

amount was Rs.2 lakh which is higher side and the same is not

commensurate with the loan transaction between the petitioner

and the respondent. Hence, it may be modified. The counsel for

the respondent would submit that though fine amount was

imposed as Rs.3 lakh, only awarded an amount of Rs.2,75,000/-

in favour of the respondent and Rs.25,000/- shall vest with the

State.

14. Having taken note that the transaction is of the year

2005, almost 17 years has been lapsed and the Trial Court also

imposed only default sentence in view of the fine amount and

not awarded any substantive sentence against the petitioner.

When such being the factual aspects, it is not a fit case even to

modify the fine amount. Hence, I do not find any grounds to

invoke revisional jurisdiction to entertain the petition.

Point No.2:

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

following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

SN