Smt V Jayalakshmi vs Sri Dhanashekar K
2022 Latest Caselaw 5541 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 28TH DAY OF MARCH, 2022

                         BEFORE

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

         CRIMINAL REVISION PETITION NO.1257/2021

BETWEEN:

SMT. V. JAYALAKSHMI,
AGED ABOUT 61 YEARS,
W/O SRI K. SUNDARESHAN,
R/AT NO.88, "NENAPU,"
BRIGHTWAY LAYOUT SCHOOL,
1ST CROSS, 2ND MAIN,
VASANTHAPURA,
BENGALURU-560061.                           ...PETITIONER

             (BY SRI SUDHARSHAN L, ADVOCATE)

AND:

SRI DHANASHEKAR K.,
MAJOR,
S/O LATE R. KUPPASWAMY,
R/AT "GURUKRUPA",
3RD CROSS, JNANAKSHI LAYOUT,
PATTANAGERE, RAJARAJESWARINAGARA,
BENGALURU-560098.                         ...RESPONDENT

          (BY SMT. G.K. SREE VIDYA, ADVOCATE FOR
              SRI T.N. VISHWANATH, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 READ WITH 401 OF CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE FOR
THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT
PASSED IN C.C.NO.7470/2017 DATED 16.03.2019 ON THE FILE
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OF XVI ADDL.C.M.M., BENGALURU AND IN CRL.A.NO.850/2019
PASSED BY THE LXVII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, (CCH-68), BENGALURU DATED 03.02.2021, FOR THE
OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.

    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 for the petitioner and the learned counsel for the

respondent.

2. The factual matrix of the case of the

respondent/complainant before the Trial Court is that the

petitioner/accused had approached the respondent in the second

week of March 2015 and sought for financial help of

Rs.5,00,000/- for a period of 20 months. The petitioner also

assured him that she would repay the said amount to him with

interest at the rate of 1.5% per annum. Believing the words, the

complainant paid an amount of Rs.5,00,000/- and the accused

had issued the post dated cheque as security for the amount

borrowed, but she did not repay the amount with interest. When

the cheque was presented, it was returned with an endorsement

"funds insufficient". The legal notice was issued and the same

was served and despite the service of notice, the accused neither

replied nor complied with the demand. Hence, complaint was

filed. The Trial Court took the cognizance and the complainant

examined himself as P.W.1 and got marked the documents at

Exs.P.1 to 8. The learned counsel for the petitioner cross-

examined P.W.1, but not led any defence evidence. The Trial

Court after considering both oral and documentary evidence

placed on record, convicted the petitioner for the offence

punishable under Section 138 of the Negotiable Instruments Act

('NI Act' for short) and sentenced to pay fine of Rs.5,25,000/-.

In default of payment of fine to undergo simple imprisonment for

a period of one year. Being aggrieved by the judgment of

conviction, an appeal is filed in Crl.A.No.850/2019 and the

Appellate Court on re-consideration of both oral and

documentary evidence placed on record, dismissed the appeal.

Hence, the present revision petition is filed before this Court.

3. The learned counsel for the petitioner would

vehemently contend that it is elicited that the handwriting and

the signature in the cheque are in different handwriting and

apart from that, specific defence was taken before the Trial

Court that the complainant was not having the capacity to lend

an amount of Rs.5,00,000/-. The learned counsel submits that

cheque was issued in respect of the chit transaction and the

documents which have been relied upon by the complainant for

having withdrawn the amount is only to the tune of Rs.1 lakh

and odd and not Rs.5,00,000/-, which was allegedly lent in

favour of the petitioner. This aspect has not been considered by

the Trial Court and hence it requires interference of this Court

and the matter has to be admitted.

4. Per contra, the learned counsel for the respondent

would submit that the signature on the cheque is not disputed.

The only dispute before the Trial Court is that while cross-

examining P.W.1, it is stated that the cheque was given in

connection with the chit transaction and in order to prove the

said fact, not led any rebuttal evidence. The same has been

considered by the Trial Court as well as the Appellate Court. The

learned counsel brought to the notice of this Court the findings

of the Trial Court in paragraph Nos.21 to 27 wherein it is

discussed with regard to the issuance of the cheque and no

defence evidence has been led. The learned counsel brought to

the notice of this Court the re-appreciation made by the

Appellate Court with regard to the evidence available on record,

particularly in paragraph No.4 considering the grounds urged in

the appeal memo and also the reasoning given in paragraph

Nos.9 to 16 and so also paragraph No.18 with regard to purport

and object of NI Act and dismissed the appeal. Hence, the

learned counsel would contend that there is no merit to admit

the revision petition.

5. Having heard the respective learned counsel and

looking into the material available on record, the complainant in

order to substantiate the claim, examined himself as P.W.1 and

got marked the documents at Exs.P.1 to 8. Admittedly, legal

notice was served on the petitioner in terms of Ex.C.6 postal

acknowledgment and no reply was given. The defence which

was taken before the Trial Court is with regard to the cheque

was issued in connection with chit transaction and in order to

substantiate the same, in cross-examination nothing is elicited

that the transaction is chit transaction and the petitioner has not

led any rebuttal evidence before the Trial Court. Hence, it is

clear that afterthought the defence was taken even though no

reply was given. If really the cheque was given in connection

with chit transaction, the petitioner would have given the reply

immediately after service of notice and the same is not done.

6. The other contention of the learned counsel for the

petitioner is that though the cheque contains the signature,

handwritings are in different handwriting and once the cheque is

admitted and given the authority in favour of the holder of the

cheque to fill up the same, the same cannot be a ground as held

by the Apex Court in the case of BIR SINGH v. MUKESH

KUMAR reported in (2019) 4 SCC 197, wherein it is held that

presumption that cheque, duly signed and voluntarily made over

to payee, was in discharge of debt or liability, arises irrespective

of whether the cheque was post-dated or blank cheque for filling

by payer or any other person, in the absence of evidence of

undue influence or coercion.

7. The other contention of the petitioner is that the

respondent was not having capacity to lend the money. The

learned counsel would contend that the statement was produced

and the same discloses drawing of amount of Rs.1,00,000/- and

odd and the same cannot be a ground and the complainant had

produced the document of sale deed of the year 28.12.2010 for

having sold the property and out of the sale consideration, loan

amount was advanced. When the documents of Exs.P.7 and 8

statement of account and certified copy of the sale deed is

produced, the very contention of the petitioner cannot be

accepted.

8. Having perused the findings of the Trial Court and

the Appellate Court, the Trial Court in paragraph Nos.31 to 33

discussed with regard to the defence taken by the petitioner and

so also in paragraph No.35 with regard to the documents which

have been relied upon by the complainant and also drawn the

presumption in favour of the complainant. The Appellate Court

also on re-appreciation of the material available on record,

discussed in paragraph Nos.15 and 16 regarding Trial Court has

relied upon the documents, particularly bank statement and also

sale deed and apart from that, the case was filed in the year

2017 itself and no reply was given inspite of service of notice

and given the reasoning that the Trial Court has applied its mind

and relied upon both oral and documentary evidence placed on

record. Having considered the findings of the Trial Court and

the Appellate Court and also taking note of the material available

on record, it is not a fit case to admit the appeal and I do not

find any error committed by the Trial Court and the Appellate

Court in appreciating both oral and documentary evidence placed

on record and while exercising the revisional jurisdiction, there

must be perversity in the finding and such finding is not found.

Hence, no merit to admit the revision petition.

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

following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

MD