S A Shashidhara vs Smt Shwetha S A
2022 Latest Caselaw 5555 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.1006/2011

BETWEEN:

S.A.SHASHIDHARA
S/O ANNAPPA GOWDA
AGED ABOUT 41 YEARS
R/O. SULADAMAKKI
GINIKAL VILLAGE, NAGAR HOBLI
HOSANAGAR TALUK
SHIVAMOGGA DISTRICT.                      ... PETITIONER

       (BY SRI NAGARAJ REDDY, ADVOCATE - APPOINTED
                    AS AMICUS CURIAE)
AND:

SMT. SHWETHA S.A.,
W/O T.M.CHANDRAPPA
AGED 32 YEARS
R/O. TELEGERE, KOURI VILLAGE
NAGAR HOBLI, YEDUR POST
HOSANAGAR TALUK
SHIVAMOGGA DISTRICT.                     ... RESPONDENT

            (BY SRI GURURAJ SALUR, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) R/W. SECTION 401 OF CR.P.C., PRAYING TO
SET ASIDE THE ORDER DATED 16.07.2011 PASSED BY THE
SESSIONS JUDGE, FAST TRACK COURT-I, SHIVAMOGGA IN
CRIMINAL APPEAL NO.103/2010 AND THE ORDER DATED
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22.09.2010, PASSED BY THE CIVIL                   JUDGE       AND      JMFC,
HOSANAGAR IN C.C.NO.302/2008.

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

                               ORDER

This petition is filed under Section 397(1) read with

Section 401 of Cr.P.C., praying to call for the records, set aside

the judgment of conviction and order on sentence dated

16.07.2011 passed in Crl.A.No.103/2010 on the file of the

Sessions Judge, I Fast Track Court, Shivamogga, and the

judgment and order dated 22.09.2010 passed in

C.C.No.302/2008 by the Civil Judge & JMFC., Hosanagara, and

pass such other order as deems fit in the facts and

circumstances of the case.

2. Heard the learned amicus curiae appearing for the

petitioner and the learned counsel for the respondent.

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

complainant before the Trial Court is that the complainant is the

sister of this petitioner and the petitioner is the only son to their

father and they have all got married. It is contended that except

the complainant the remaining two daughters have given

everything with respect to the joint family properties at the time

of their marriage. Regarding her share is concerned, a

panchayath was held and this petitioner was agreed to pay a

sum of Rs.2,50,000/- from the joint family properties to the

complainant on 15.07.2007 and an agreement came into

existence. But he failed to pay the same. Once again, a

Panchayath was held on 02.11.2007. The petitioner has agreed

to pay a sum of Rs.2 Lakhs and he has issued a cheque dated

03.12.2007. On presentation, the cheque was returned with an

endorsement as 'funds insufficient'. Hence, a legal notice was

issued on 14.02.2008 and a reply was given on 23.02.2008, not

complied the demand. Hence, a complaint was filed and

cognizance was taken. This petitioner was secured. The

complainant examined herself as P.W.1 and witnesses, who were

examined as PWs.2 to 4 and relied upon the documents as

Exs.P1 to P9. The petitioner/accused also examined himself as

D.W.1 and got marked the documents as Exs.D1 to D21.

4. The Trial Court after considering both oral and

documentary evidence placed on record convicted the petitioner

herein for the offence punishable under Section 138 of the

N.I.Act, and ordered to pay a fine of Rs.2,50,000/-. The

petitioner being aggrieved by the said judgment of conviction

and order on sentence filed an appeal in Cr.A.No.103/2010

before the Appellate Court. The Appellate Court also on re-

appreciation of both oral and documentary evidence placed on

record confirmed the judgment of the Trial Court and dismissed

the appeal. Hence, the present revision petition is filed before

the Court.

5. The learned counsel, who is appointed as amicus

curiae by this Court since the learned counsel appearing for the

petitioner before this Court did not assist the Court. He submits

that the cheque is not issued for any debt or liability and the

same is also forcibly taken in the Panchayath. Hence, invoking

of Section 138 of the N.I. Act, does not arise. Though, cheque

was issued i.e., not towards enforceable debt and liability. The

Trial Court as well as the Appellate Court ought not to have

convicted and sentenced the petitioner and this aspect has been

completely ignored by both the Courts. The Trial Court has given

much importance that once mandatory requirements are

followed would sufficient for entertaining the complaint and

passed an order impugned and the very reasoning is against the

law and presumption invoked against the petitioner is also not

permissible.

6. Per contra, the learned counsel appearing for the

respondent-complainant would submit that the issuance of

cheque is not disputed and the fact that earlier he had agreed to

pay Rs.2,50,000/-, is not in dispute. When he did not pay the

amount, once again panchayath was held and the document -

Ex.P9, already in existence. Accordingly, he made the payment

of Rs.2 Lakhs by way of cheque. When the said cheque was

presented, the same was dishonoured. Hence, the very

contention that the cheque is not in respect of the debt or

liability cannot be accepted. The learned counsel also would

submit that an application is filed before this Court under Section

147 of the N.I.Act, seeking permission of this Court to compound

the offence and agreed to pay the amount in the month of April

2020, but not complied it. The said application is also on record

before this Court. Now, he cannot contend that he is not liable to

pay any amount and the cheque is not towards any debt or

liability.

7. Having heard the learned amicus curiae appearing

for the petitioner and the learned counsel appearing for the

respondent and on perusal of the material available on record,

the points that would arise for consideration of this Court are:

        (i)    Whether the subject matter of the cheque
               issued    not     towards    debt   or   liability   as

contended by the learned amicus curiae for the petitioner?

       (ii)    Whether both the Courts have committed an
               error    in     convicting   and    confirming       the

judgment of conviction and order on sentence of the Trial Court?

(iii) Whether it requires an interference of this Court by exercising the revisional jurisdiction?

(iv) What order?

Point Nos.(i) to (iii):

8. Having heard the respective counsel and on perusal

of the material available on record, it is not in dispute that the

complainant as well as the petitioner herein are brother and

sister. It is the case of the complainant that the petitioner

herein, in the Panchayath, he had agreed to pay an amount of

Rs.2,50,000/- towards her share in the joint family property. It

is also the case of the complainant that the amount was not paid

and once again the panchayath was held and in terms of the said

panchayath agreed to Rs.2,00,000/-. In spite of the same, the

amount was not paid. No doubt, the accused/petitioner led his

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

to D21.

9. Having considered the material on record, it is not in

dispute that the family was having a Hindu undivided family

property. The learned amicus curiae would submit that when

the father was alive, the complainant is not entitled for any

share. But the fact is that a Panchayath was held is not in

dispute. But only the contention of the petitioner is that the said

cheque was obtained by force. It is emerged in the evidence

that he has not given any complaint that the cheque was

obtained by force. He has not disputed the issuance of cheque.

It is also important to note that before this Court also, an

application was filed under Section 147 of the N.I.Act, seeking

permission to compound the offence. This petitioner also has

signed the said document and sought time to keep the parties

present before the Court to settle the issues involved between

the parties. Subsequently, due to COVID-19, no order has been

passed in respect of the said application. The Trial Court while

considering the material on record in paragraph Nos.21, 22 and

23 after discussing the evidence of P.W.1 and D.W.1 taken note

of admitting the signature available on Ex.P1 and also issuance

of the said cheque and entered into an agreement in terms of

Ex.P9 and also taken note of no complaint was given, though it

is contended that the cheque was obtained by force. The

Panchayath held between the complainant and accused also not

in dispute. No contra evidence against the evidence of

complainant except examining the petitioner himself as D.W.1

and marking of document. When such cheque is given towards

her share in the property of the joint family and also an admitted

fact that there was a partition between the father and son and

not given any share in favour of the complainant and not

disputed the agreement as well as the earlier agreement as well

as the issuance of cheque only contend that the same is not

towards any debt or liability. No doubt, it is not a debt; it is only

a liability to pay the amount towards her share in the family

property. When such being the factual aspects of the case, the

very contention of the learned amicus curiae for the petitioner is

that it is not towards any debt or liability cannot be accepted.

10. I have already pointed out that the Trial Court has

considered all these aspects, particularly, in paragraphs No.21,

22, 23 and 24 and in keeping the principles laid down in the

judgment referred in paragraph Nos.24, 25, 26 and 27 comes to

the conclusion that the cheque was issued towards legally

enforceable debt. The Appellate Court also on re-appreciation of

the material available on record in paragraph Nos.12 to 18

discussed the evidence available on record, particularly, the

evidence of PWs.1 to 4 as well as the accused evidence and also

taken note of the evidence of the petitioner in paragraph No.22

and in paragraph No.23 given the reasoning that the cheque was

given towards his liability. PWs.1 to 4 have deposed before the

Court that there was an agreement between the parties with

regard to the joint family property and the petitioner agreed to

pay an amount of Rs.2,50,000/- and later he agreed to pay Rs.2

Lakhs. Hence, a cheque was given and also considered the

material available on record in detailed discussion in paragraph

No.23 and appreciated both oral and documentary evidence

placed on record.

11. The very contention of the learned amicus curiae for

the petitioner is that the subject matter of the cheque is not

towards debt or liability, the said contention cannot be accepted.

Both the Courts have given the finding that the subject matter of

the cheque was given towards his liability to pay the amount in

lieu of share of the complainant and the fact that the

complainant is the sister of the petitioner is not in dispute. It is

also not in dispute that the family was having the joint family

property and when witnesses have examined and proved with

regard to the execution of document-Ex.P9, and a cheque was

given in favour of the petitioner towards consideration of her

share in the property. Now, the learned amicus curiae cannot

contend that the same is not towards the debt or liability and the

same is not enforceable, the very submission cannot be

accepted. Hence, I do not find any reasons to comes to other

conclusion in exercising the revisional jurisdiction. The revisional

jurisdiction can be exercised only if the finding is erroneous,

which is apparent on the face of the record, not considered the

material available on record and the judgment is passed without

looking into the cogent evidence available before the Court and

the perverse finding is given, then the Court can exercise the

revisional jurisdiction and the same is not found in the matter.

Hence, no merit to exercise the revisional jurisdiction and I

answer Point Nos.(i) to (iii) as 'negative'.

Point No.(iv):

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

following:

ORDER

The revision petition is dismissed.

The registry is directed to pay a fee of Rs.5,000/- to the

learned amicus curiae appearing on behalf of the petitioner.

Sd/-

JUDGE

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