Sri N Raghavendra vs Sri Ravi Varma Raju
2022 Latest Caselaw 7785 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 31ST DAY OF MAY, 2022

                         BEFORE

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

         CRIMINAL REVISION PETITION NO.1114/2016

BETWEEN:

SRI N.RAGHAVENDRA
SON OF LATE NARASIMHAIAH
AGED ABOUT 34 YEARS
RESIDING AT NO.30
1ST 'A' CROSS, PARIMALANAGAR
NANDHINI LAYOUT
BENGALURU - 560096.                         ... PETITIONER

             (BY SRI G.JANARDHANA, ADVOCATE)
AND:

SRI RAVI VARMA RAJU
SON OF LATE K.L.K. HEGADE
AGED ABOUT 71 YEARS
RESIDING AT NO 223,
8TH CROSS 1ST 'N' BLOCK
RAJAJINAGAR, BENGALURU-560010.              ... RESPONDENT

            (BY SRI S.N.RAMA PRASAD, ADVOCATE)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED 26.07.2016 PASSED BY THE LXIII ADDL.
CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN DISMISSING
CRIMINAL APPEAL NO.151/2016 AND ALSO TO SET ASIDE THE
ORDER DATED 20.01.2016 PASSED BY THE XX ACMM, BENGALURU
IN ALLOWING C.C.NO.11342/2013.

    THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 21.04.2022, THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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                              ORDER

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

complainant and accused both are known persons from several

years. The accused and his father are doing real estate

business. The accused purchased and formed a residential

layout called as "Mahaveera Layout" in Sy.No.5 and other

adjacent lands situated at Adakamaranahalli Village, Dasanapura

Hobli, Bengaluru North Taluk, Bengaluru. The complainant was

also interested to purchase the site through the accused and

accused also assured that he will do the needful to the

complainant. In this regard, they have acquired several acres of

land and executed sale deeds to different persons, unfortunately

the accused father died about two years back. The accused by

executing a sale deed in respect of site No.163 in favour of the

complainant had received an amount of Rs.6,35,400/- and

issued the receipt and the accused assured as soon as he gets

the documents and clearance from the revenue records, he will

execute the sale deed in favour of the complainant. The

complainant waited for the same, but he did not execute the sale

deed. Hence, the complainant requested the accused to execute

the sale deed but he postponed the same and instead of that he

issued six cheques dated 20.11.2012 for different amounts.

When the cheques were presented, the same were returned with

an endorsement "insufficient funds". The legal notice was also

issued against the accused and inspite of receipt of notice, no

payment was made and hence complaint was filed and the Trial

Court took the cognizance and secured the accused before the

Trial Court and he did not plead guilty. The complainant in order

to prove his case got examined himself as P.W.1 and got marked

the documents at Exs.P.1 to 20(a). On the other hand, the

accused examined himself as D.W.1 and did not mark any

documents. The Trial Court after considering both oral and

documentary evidence placed on record, convicted the

petitioner/accused directing him to pay Rs.7,40,000/- and in

default of payment, ordered to undergo simple imprisonment for

a period of three months. Being aggrieved by the judgment of

conviction and sentence, Crl.A.No.151/2016 was filed and the

Appellate Court, on re-appreciation of both oral and

documentary evidence placed on record, dismissed the appeal.

Being aggrieved by the same, the present revision petition is

filed before this Court.

3. The learned counsel appearing for the petitioner would

vehemently contend that there was no any privity of contract

between the petitioner and the respondent/complainant and the

complainant himself has admitted that the petitioner is nowhere

connected to Manjunath Land Developers with whom he has paid

the money for purchasing the site No.163 and according to the

complainant, the petitioner's father was running the same and

when the petitioner has explained under what circumstances, the

cheques were issued in favour of the complainant, both the

Courts have failed to take note of the same and came to

erroneous conclusion that cheques were given for legally

enforceable debt. Both the Courts have held that the petitioner

has not taken any step to approach the police to stop the

presentation of cheques when the cheques were not issued for

any debt or liability. The complainant had categorically admitted

that he had paid the amount to Manjunath Land Developers but

he proceeded against only this petitioner instead of said

developers. The complainant categorically admitted that this

petitioner has not received any amount from him and mere

issuance of cheques under the circumstances explained by the

petitioner, the Trial Court ought not to have convicted and

sentenced the petitioner herein. The complainant also

categorically admitted that this petitioner has not made any

transaction with him or has received the said amount and hence,

drawing of presumption in favour of the petitioner is very

erroneous. The allegation made in the notice is also very clear

that the complainant is alleged to have entered into the said

transaction with Manjunath Land Developers. Having failed to

get that site, secured the cheques from the petitioner under

threat and the same also not been considered by both the Courts

hence, it requires interference of this Court.

4. The learned counsel appearing for the petitioner

relied upon the judgment of this Court reported in 2021 (1)

KCCR 237 between M/S. NATIONAL AGRICULTURAL CO-

OPERATIVE MARKETING FEDERATION OF INDIA LIMITED

(NAFED), BENGALURU vs M/S. DISHA IMPEX (PVT.) LTD.,

NEW DELHI AND ANOTHER wherein this Court held that if the

accused rebuts the evidence of the complainant, then the onus

shifts on the complainant to further prove his case meeting the

case of the accused to substantiate the claim before the Court.

The counsel referring this judgment would vehemently contend

that the presumption is rebutted by this petitioner and though

onus shifts on the complainant to meet the case of accused, the

complainant did not further prove his case hence, this judgment

aptly applicable to the case on hand.

5. The learned counsel appearing for the

respondent/complainant in his argument vehemently contend

that petitioner/accused was examined as DW1 and deposed that

he entered into the witness box, but not rebutted the case of the

complainant. The petitioner/accused categorically admitted that

cheques are given in his house and further admitted that there

was no any threat or force to issue those cheques. The

complainant has categorically stated that this petitioner as well

his father were present and also admitted the receipt of the

amount and documents at Ex.P17 to P20 are signed by the

father of the petitioner and same also not disputed in his chief

evidence. DW1 categorically admitted that they demanded the

money but not forced. When such admission is there, his own

evidence is contrary with his chief evidence wherein he was

stated that he was forced to issue cheques and also admitted

liability in the cross-examination. Both the Courts have taken

note of the admission elicited from the mouth of this petitioner

and considered the same in a proper perspective and there is no

perverse finding on the part of the Trial Court as well as the

Appellate Court and hence, it does not require any interference.

6. In reply to the arguments, the counsel for the

petitioner would vehemently contend that the amount was paid

in three installments and the same is paid towards the site and

there is no privity of contract between the petitioner and the

complainant and also the cheques are not issued in respect of

any debt and hence, it requires interference of this Court.

7. Having heard the respective counsel appearing for

the parties and also on perusal of the material on record, the

points that would arise for the consideration are:

1. Whether the Trial Court has committed an error

in convicting this petitioner for the charges

leveled against him and also the Appellate

Court committed an error in confirming the

same?

2. Whether this Court can invoke the revisional

jurisdiction in coming to the conclusion that the

orders passed by both the Courts are perverse

and the conviction as well as the confirmation

suffers from any illegality and its correctness?

3. What order?

8. Having heard the respective counsel and also on

perusal of the material available on record it is not in dispute

that the revisional petitioner had issued the subject matter of

cheques which are marked as Exs.P1 to P6. The main contention

of the counsel for the petitioner is that the payment was made in

favour of Manjunath Land Developers and PW1 categorically

admitted that amount has not been paid in favour of this

petitioner and hence, invoking Section 138 of N.I. Act is

erroneous. The counsel also vehemently contend that the

circumstances has been explained regarding issuance of cheques

and the said cheques are also not for legally enforceable debt.

This Court has to take note of the defence taken in the cross-

examination of PW1. It is important to note that regarding

liability is concerned, PW1 categorically says that father of this

petitioner was looking after Manjunath Land Developers financial

activities and no doubt, it is admitted that this petitioner was not

the Director of the said Manjunath Land Developers and it is his

case that he paid the amount to the father of this petitioner and

the amount what he has paid has been transferred to the

Manjunath Land Developers by the father of this petitioner. It is

also his evidence that this petitioner as well as his father came

to his house and obtained the money and father of this petitioner

gave the receipts for the same. In the cross-examination, a

suggestion was made that this petitioner never refused to

execute the sale deed in favour of the complainant and the same

has been also taken note by the Trial Court and PW1

categorically says that this petitioner postponed the registration

of the sale deed. He also admits that the persons who have

purchased the sites forced him to get the sale deed executed

and the said amount was also paid in favour of the father of the

petitioner and also he categorically admits that he took six

persons to the house of this petitioner. It is suggested that six

cheques were given as security when they went and forced and

the said suggestion was denied. It is also important to note that

the advance amount which was given in respect of site No.163

was returned to his father and the said suggestion as denied. It

is suggested that an amount of Rs.1,00,000/- was paid in the

year 2004 through cheque and remaining amount was also paid

through cheque but in order to substantiate the payment, no

documents are placed before the Court by the petitioner. It is

also important to note that in the chief evidence of this

petitioner, he deposed that the subject matter of cheques were

collected saying that his father had collected the money towards

the site and he also categorically admits that except the drawer's

name, he only mentioned the name and amount in the said

cheques. It is also his case that cheques were taken by force.

He went to the police station but the police did not receive any

complaint and filed a false case. But in the cross-examination,

he categorically admits that the address mentioned in the notice

was the same as wherein he is residing and suggestion was

made that he was doing real estate business along with his

father, same was denied. It is also admitted that his father

working in Tata Institute and also doing real estate business and

he also admits that his father and others were running the

Manjunath Land Developers business. He categorically admits

that he only issued Exs.P1 to P6 in his house and he went to the

police station within three hours of issuance of those cheques

but he has not mentioned the date but he categorically admits

that the complainant has not forced him to issue the said

cheques. Having taken note of this admission it is clear that

though he claims that the cheques were taken by force but in

the cross-examination he categorically admits that cheques were

not taken by force. It is also important to note that in the

further cross-examination, he categorically admits that he has

not given any notice stating that cheques were taken by threat

and no action was taken.

9. Having considered the material available on record

and also the admission elicited from the mouth of both the

witnesses and no doubt, the amount was not paid in favour of

this petitioner but the petitioner categorically admits that his

father and others were running the real estate business in the

name of Manjunath Land Developers and it is also important to

note that in the cross-examination of PW1, defence was taken

that the amount was repaid to the complainant by the father of

this petitioner and the same was denied and no material is

placed regarding payment of money and this petitioner also not

disputes the fact that his father was doing the real estate

business and he is also taking care of financial aspects of the

said Manjunath Land Developers and also the complainant relied

upon the documents at Exs.P17 to P20 - receipts issued by the

father of this petitioner. Though he has contended that cheques

are taken by force but categorically admitted that the

complainant has not forced him to issue the cheques and also

categorically admits that the complainant took other six persons

to his house and this petitioner categorically admits that he has

issued the cheques in his house and when there is no force and

when the petitioner acknowledged the liability of his father, and

he gave the cheques in favour of the complainant and now he

cannot contend that there is no legally enforceable debt or

liability in favour of the complainant. No doubt, the counsel also

relied upon the judgment referred supra wherein this Court also

held that if rebutted the case of the complainant, then the onus

shifts on the complainant to further prove his case meeting the

case of the accused to substantiate the claim before the Court

but in the case on hand, admitted the issuance of cheques and

also admitted the address mentioned in the legal notice belongs

to him though signature not belongs to the petitioner and when

the notice was served on the person who had acknowledged in

respect of very same address, now again contended that there is

no proper service and apart from that when he himself had

issued the cheques and himself mentioned the date and amount

to the said cheques, now he cannot blow hot and cold that there

is no privity of contract between the complainant and this

petitioner and the fact is that there was a sale transaction in

respect of site No.163 by the complainant and father of this

petitioner is not disputed and admitted in the cross-examination

of PW1 that amounts are paid but no documents are placed and

apart from that it is a specific case of the complainant that this

petitioner and his father went and collected the money. No

denial in the cross-examination that this petitioner had

accompanied his father and also when the suggestion was made

that at no point of time this petitioner refused to execute the

sale deed in favour of the complainant and these are the

materials to take away the case of the revisional petitioner.

10. Both the Courts have taken the note of the material

available on record and also considered both the oral and

documentary evidence available on record and rightly drawn the

presumption in favour of the complainant as the petitioner has

admitted his signature on the cheques and issuance of cheques

and rightly pointed out by the counsel appearing for the

complainant that mere entering into the witness box itself is not

sufficient to accept the case of the petitioner and it does not

amounts to rebut the case of the complainant. In order to come

to other conclusion of exercising the revisional powers and the

same is warranted only when both the Courts have not

considered the material available on record but in the case on

hand both the Courts have considered both the oral and

documentary evidence as well as the respective admissions

elicited from the mouth of PW1 as well as DW1 and particularly

taken note of the suggestions made in the cross-examination of

PW1 admitting the liability and suggested repayment of the

amount which has been received but no documentary evidence

has been placed before the Court for having repaid the amount

and when such being the material available on record, the

revisional petitioner has not made out any grounds to exercise

the revisional jurisdiction since there is no perversity in the

finding of both the Courts and the both the Courts have taken

note of the cogent evidence available on record and came to the

definite conclusion that the cheques are issued in favour of the

complainant towards the debt or liability which has been

acknowledged by the petitioner by issuing the cheques and

hence, I answer points No.1 and 2 as negative and it does not

require any interference of this Court.

Point No.3:

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

following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

MD/SN