Sri. A. Hemantha Kumar vs Sri. Harshith Reddy
2022 Latest Caselaw 5650 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF MARCH, 2022

                         BEFORE

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

       CRIMINAL REVISION PETITION NO.523/2019

BETWEEN:

SRI A. HEMANTHA KUMAR
S/O SRI M. AMARCHAND BARLOTA
AGED ABOUT 30 YEARS
R/AT NO 244, OPH ROAD,
BENGALURU - 560051.                        ...PETITIONER

           (BY SMT.M.RAJESHWARI, ADVOCATE FOR
              SRI R.B.SADASIVAPPA, ADVOCATE)

AND:

SRI HARSHITH REDDY
S/O SRI KESHAVA REDDY
AGED ABOUT 28 YEARS
R/AT NO 463, 5TH MAIN,
ANANDA NAGARA,
HEBBAL POST,
BENGALURU - 560024.                       ...RESPONDENT

              (BY SRI N.DEVENDRA, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT DATED 18.03.2019 PASSED
BY THE LV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH-56) IN CRL.A.NO.676/2017 AND ALSO THE
ORDER DATED 18.04.2017 PASSED BY THE XV ADDL.C.M.M.,
BENGALURU IN C.C.NO.17857/2016 AND CONSEQUENTLY
DISMISS THE COMPLAINT FILED BY THE RESPONDENT.
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    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. Learned counsel for the respondent is

absent.

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

complainant is that the petitioner-accused and himself are

friends since two years and the petitioner-accused had

approached the complainant in the first week of December, 2014

and sought for hand loan of Rs.6,00,000/- for the purpose of

business of Veena Jewelry and Banker. The amount of

Rs.6,00,000/- was paid in the fourth week of December, 2014

and the petitioner-accused assured to repay the amount within

one year.

3. In discharge of liability, the petitioner-accused issued

cheque for Rs.6,00,000/- on 21.06.2016. When the same was

presented, it has returned unpaid for the reason that 'funds

insufficient'. Hence, legal notice was issued and duly served and

petitioner did not bother to make payment. Therefore,

complaint was filed and cognizance was taken and this petitioner

was secured before the Trial Court.

4. The respondent-complainant, in order to prove his

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

as Exs.P1 to P7. The petitioner has not led any evidence and did

not mark any documents.

5. Though the P.W.1 is cross-examined, the petitioner

has not led any defence evidence before the Trial Court. The

Trial Court, after considering both oral and documentary

evidence placed on record, accepted the case of the respondent-

complainant and convicted the petitioner directing him to pay a

fine of Rs.6,15,000/-. In default of payment of fine, ordered to

undergo simple imprisonment for a period of one year.

6. Being aggrieved by the judgment of conviction and

sentence, an appeal is filed in Crl.A.No.676/2017. The Appellate

Court, on re-appreciation of both oral and documentary evidence

placed on record, dismissed the appeal. Hence, the present

criminal revision petition is filed before this Court.

7. Learned counsel appearing for the petitioner would

vehemently contend that the postal acknowledgement which has

been produced before the Trial Court is not pertaining to the

service in respect of the petitioner and there is no proper service

of notice and both the Courts failed to take note of the said fact

into consideration and also failed to take note of the financial

capacity of the respondent-complainant to lend the amount of

Rs.6,00,000/- as hand loan and there is a suppression of

material before the Trial Court. Inspite of the same, both the

Courts committed an error and it requires interference of this

Court.

8. Having heard the learned counsel for the petitioner

and also on perusal of the material on record, with regard to the

first contention of the learned counsel for the petitioner that

there was no service of notice, the Trial Court, in para No.17,

discussed both oral and documentary evidence placed on record

and taken note of the notice at Ex.P3 and also the postal

acknowledgement at Ex.P5. Though the Trial Court comes to the

conclusion that notice was served on one Subhash Bhai, nowhere

it is stated, whether he is a relative but, the Trial Court has

taken note of the fact that no contrary address other than the

address stated in Ex.P5 is produced before the Court by the

respondent by adducing any evidence. Apart from that, the Trial

Court has taken note of the fact that order sheet reveals that, on

08.11.2016, the accused appeared before the Trial Court and he

was released on bail, consequent upon the summons issued by

the Court is received by one Shaila on 24.08.2016 in the very

same address. Hence, the Trial Court comes to the conclusion

that notice is issued to the correct address, even though the

acknowledgement is not signed by the accused and it is signed

by the family members and turned down to the defence of the

petitioner.

9. The other contention of the learned counsel for the

petitioner before the Trial Court is that, in the cross-examination

of P.W.1, he states that, apart from the subject matter cheque,

four cheques pertaining to him had been taken by the

respondent-complainant from Veena Jewelry and Banker and

filed a false case. In order to substantiate the said defence also,

the petitioner has not led any defence evidence and not disputed

the signature found in Ex.P1-Cheque. Further, when legal notice

was issued, no reply was given and not set out any defence in

the reply notice and gone to the extent of denying the very

service of notice and no rebuttal evidence is placed before the

Trial Court. When the issuance of cheque is admitted and no

reply is given to the legal notice and also not led any defence

evidence before the Trial Court, the question of exercising the

discretion under revisional jurisdiction does not arise. This Court

can exercise the discretion, if the case of the petitioner is not

considered by both the Trial Court and the Appellate Court. The

Appellate Court, on re-appreciation of both oral and

documentary evidence placed on record, particularly in para

Nos.14 to 16 discussed the case of the respondent-complainant

and also observed that P.W.1 was cross-examined much in

respect of income tax returns for the year 2014 and comes to

the conclusion that, to disprove the contents of the complaint,

nothing is elicited in the cross-examination of P.W.1 and

accepted the reasoning given by the Trial Court.

10. Having considered the reasoning given by the Trial

Court and the Appellate Court, in order to exercise the revisional

jurisdiction, no rebuttal evidence is led by the petitioner-accused

and no doubt, the P.W.1 is cross-examined, nothing is elicited

with regard to issuance of cheque. When such being the factual

aspects and both the Courts have accepted the case of the

respondent-complainant and the petitioner-accused has not led

any rebuttal evidence to disprove the case of the respondent-

complainant, it is not a fit case to admit the criminal revision

petition to exercise the revisional jurisdiction.

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

following:

ORDER

The criminal revision petition is dismissed.

Sd/-

JUDGE

ST