State Of Karnataka vs Smt Rajashree
2023 Latest Caselaw 5156 Kant

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                                                    NC: 2023:KHC:27088
                                                    CRL.RP No. 1426 of 2015




                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 2ND DAY OF AUGUST, 2023

                                        BEFORE
                     THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                    CRIMINAL REVISION PETITION NO. 1426 OF 2015


               BETWEEN:

               STATE OF KARNATAKA
               BY PUBLIC PROSECUTOR,
               D.K., MANGALURU-575 001.
                                                              ...PETITIONER
               (BY SRI. MAHESH SHETTY, HCGP)
               AND:

               1.    SMT. RAJASHREE
                     AGED 40 YEARS,
                     W/O PRADEEP RAO,
                     THARABAGH COMPOUND,
                     GOWRI MUTT STREET,
                     MANGALORE, D.K.-575 001.
Digitally
signed by      2.    SMT. JANAKI
RENUKAMBA            AGED 44 YEARS,
KG                   W/O AMARANATHA SHENOY,
Location: High       R/O IN FRONT OF POST OFFICE,
Court of             BOLARA, MANGALORE,
Karnataka            D.K.-575 001.
                                                            ...RESPONDENTS

               (BY SRI. NISHIT KUMAR SHETTY, ADVOCATE FOR R1,
                   SRI. SANATH KUMAR SHETTY .K, ADVOCATE FOR R2)

                    THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
               TO SET ASIDE THE JUDGMENT AND ORDER DATED 01.08.2015
               IN CRL.A.NO.110/2010 PASSED BY THE III ADDL. DIST. AND
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                                        NC: 2023:KHC:27088
                                        CRL.RP No. 1426 of 2015




S.J., D.K., MANGALORE AND JUDGMENT AND ORDER DATED
30.06.2010 IN C.C.NO.99/2007 PASSED BY THE II ADDL.
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE,
MANGALORE, D.K., CONVICT THE ACCUSED FOR THE OFFENCE
P/U/S 406, 465, 420 OF IPC.

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

                              ORDER

The State has filed this revision challenging the

judgment of acquittal passed in CC.No.99/2007 by II

Additional Senior Civil Judge & CJM, Mangalore, D.K. and

confirmed by III Additional District & Sessions Judge, D.K.,

Mangalore in Crl.A.No.110/2010 dated 01.08.2015.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them

before the trial Court.

3. The brief factual matrix leading to the case are

that accused Nos.1 & 2 are well acquainted with

complainant. On 15.12.2006, at about 5.30 p.m., accused

Nos.1 & 2 approached the complainant for advancement of

loan of Rs.1,00,000/- and accused No.2 availed the loan

with the assurance that the same will be paid within three

NC: 2023:KHC:27088 CRL.RP No. 1426 of 2015

months and accused No.1 stood surety for the said loan,

assuring that in case accused No.2 fails to pay the same,

she will pay it. Subsequently, accused No.1 has issued

cheque in this regard and when the said cheque was

presented, it was bounced for 'insufficient funds' as well as

for 'signature differs'. Hence, the complaint was lodged by

the complainant.

4. On the basis of the complaint, the Investigating

Officer after investigation has submitted the Charge Sheet

against accused for the offences punishable under Sections

406, 465 & 420 of IPC. On the basis of the Charge Sheet,

the learned Magistrate has taken cognizance and

summons have been issued to the accused. Accused have

appeared and were enlarged on bail. They were also

provided with the prosecution papers. The charges framed

were read over and explained to the accused and they

pleaded not guilty and claimed to be tried.

5. To prove the guilt of the accused, prosecution

has examined in all six witnesses and also placed reliance

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on ten documents marked at Exs.P1 to P10. After

conclusion of the evidence of the prosecution, the

statement of accused under Section 313 Cr.P.C. is

recorded to enable the accused to explain the

incriminating evidence appearing against them and the

case of accused is of total denial. They did not choose to

lead any oral or documentary evidence in support of their

defense.

6. Having heard the arguments and after

appreciating the oral and documentary evidence, the

learned Magistrate has acquitted the accused persons of

the charges leveled against them.

7. Being aggrieved by this judgment of acquittal,

the State has filed Crl.A.No.110/2010 on the file of III

Additional Sessions Judge, D.K., Mangalore and the

learned Sessions Judge after re-appreciating the oral and

documentary evidence, dismissed the appeal by

confirming the judgment of acquittal passed by the trial

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Court. Being aggrieved by these concurrent findings, the

State is before this Court.

8. Heard the arguments advanced by learned

HCGP for the State and learned counsel for the

respondents. Perused the records.

9. Learned HCGP would contend that the judgment

of acquittal passed by the trial Court and confirmed by the

appellate Court are illegal, contrary to law and

probabilities of the case. He would also contend that both

the Courts below have failed to appreciate the oral and

documentary evidence in proper perspective and the

admitted facts regarding bouncing of the cheque and

signature being differed were ignored. Hence, he would

contend that both the Courts below have erred in

acquitting the accused and sought for interference by this

Court by allowing the petition and convicting the accused.

10. Per contra, learned counsel appearing for the

respondents would support the judgment of acquittal and

he would contend that there are concurrent findings by

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both the Courts below and no material is placed by the

prosecution to show that the judgment of acquittal is

perverse, erroneous or arbitrary. The appellate

Court/revisional Court is required to be very slow while

interfering with judgment of acquittal unless the judgment

is not based on proper appreciation of evidence or

perverse. Hence, he would seek for rejection of revision.

11. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

"whether the judgment of acquittal passed by the trial Court and confirmed by the appellate Court suffers from any perversity, infirmity or illegality so as to call for any interference?"

12. The allegations of the prosecution are that,

accused Nos.1 & 2 have approached the complainant.

Accused No.2 has availed a loan of Rs.1,00,000/- on

15.12.2006 and accused No.1 stood surety and also issued

a cheque regarding repayment of the loan. At the outset,

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it is to be noted here that the allegations of the complaint

disclose that the loan was availed on 15.12.2006 and the

post dated cheque issued was dated 15.03.2007. No doubt

that cheque was returned on the ground that the

'signature differs'. But merely because signature differs, it

cannot be presumed that there is any forgery.

13. Further, there is inordinate delay in lodging the

complaint and no explanation is offered by the

complainant. Apart from that, the complainant did not

venture to initiate proceedings under Section 138 of the NI

Act and he has chosen the other mode that too after delay

of nearly one month which is also not properly explained.

14. Apart from that, PW1 who is the complainant

specifically asserts that he has not obtained any

acknowledgment from accused Nos.1 & 2 for having

advanced the loan. The cross-examination of PW1 itself

discloses that earlier also accused have availed loans and

certain cheques were issued which were also bounced. In

that event, it is hard to accept that the complainant has

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again advanced the loan in spite of non-refund of earlier

loan. It is the specific defense of the accused that, in

respect of earlier loan of Rs.15,000/- she had issued six

blank cheques to the complainant and after repayment,

the cheques were not returned. She has also asserted

that, in this regard, she has lodged the complaint and

though complainant pleaded ignorance, the documents

produced by the accused along with her 313 statement

clearly disclose that she has filed Miscellaneous petition

and lodged complaint with higher police officers. Hence, it

is evident that, there are other transactions between the

parties. No material evidence is forthcoming regarding

advancement of loan as alleged by the complainant.

Further, there is delay and financial capacity of the

complainant to advance such a huge loan of Rs.1,00,000/-

without any security are not explained and this loan

amount is not shown in any Account Statement or Income

Tax Returns. Both the Courts below have appreciated this

oral and documentary evidence in detail and have rightly

acquitted the accused. The Judgment of acquittal cannot

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be said to be erroneous or arbitrary. There is no material

evidence to take a divergent view by this Court. The Court

should be slow enough while interfering in acquittal

judgment as per the law dictated by the Hon'ble Apex

Court. Under these facts and circumstances, the revision

being devoid of any merits does not survive for

consideration.

15. Looking to these facts and circumstances, the

point under consideration is answered in the negative and

accordingly, I proceed to pass the following:

ORDER

Revision stands dismissed.

Sd/-

JUDGE

DS