Karnataka High Court

K Damodaran vs M Shivaramareddy on 22 August, 2023

Bench: Rajendra Badamikar

                            1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF AUGUST, 2023

                         BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

  CRIMINAL REVISION PETITION NO.234 OF 2015

BETWEEN:

K. DAMODARAN S/O KRISHNAN,
AGED ABOUT 50 YEARS,
PYGMI COLLECTOR, SYNDICATE BANK,
ROBERTSON PET, K.G.F.,
KOLAR DISTRICT-563 117
                                             ....PETITIONER
(BY SRI. ABHILASH KUMAR .M.N, ADVOCATE FOR
    SRI. NANJUNDA GOWDA .M.R, ADVOCATE)

AND:

M. SHIVARAMAREDDY
S/O MUNIREDDY,
AGED ABOUT 46 YEARS,
R/AT. USHA PROVISION STORES,
7TH CROSS, ROBERTSON PET, K.G.F,
KOLAR DISTRICT-563 117.
                                            ...RESPONDENT
(BY SRI. JAGADEESHA .K.J, ADVCOATE)

      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 OF CR.P.C. PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED
16.1.2012 PASSED BY THE SR. C.J. AND PRL. J.M.F.C., K.G.F.,
IN C.C.NO.260/2004 AND ALSO SET ASIDE THE JUDGMENT
AND ORDER DATED 31.1.2015 PASSED BY THE PRL. S.J.,
KOLAR IN CRL.A.NO.7/2012.
                             2

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 09.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                          ORDER

This revision petition is filed by the accused under

Section 397 read with Section 401 of Code of Criminal

Procedure, 1973 challenging the judgment of conviction

and order of sentence passed by Senior Civil Judge and

Principal JMFC, KGF in C.C.No.260/04 and confirmed by

Principal Sessions Judge, Kolar, in Crl.A.No.7/12 vide

judgment dated 31.01.2015.

2. For the sake of convenience, the parties herein

are referred to the original ranking occupied by them

before the trial court.

3. The factual matrix leading to filing of the case

are that the accused has approached the complainant on

05.05.2003 and availed a loan amount of Rs.1,75,000/-

for payment of his personal debt. He has also issued a

cheque dated 05.05.2003 drawn on Syndicate Bank,

Robertsonpet, KGF in discharge of the said debt. The

complainant has presented the said cheque on

16.06.2003 and the said cheque returned with an

endorsement that 'signature differs from specimen

signature available in the office'. The complainant has

got issued a legal notice under registered post and

accused has refused the same and hence, a complaint

was lodged by the complainant. On the basis of this

complaint, the learned Magistrate has taken cognizance

and issued process against the accused. The accused has

appeared through his counsel and he was enlarged on

bail. He has also denied the accusation.

4. The complainant was got examined himself as

PW1 and he placed reliance on the evidence of two

witnesses who were examined as PW2 and PW3. Further

complainant has also placed reliance on 7 documents

marked at Ex.P1 to Ex.P7.

5. After conclusion of the evidence of the

complainant, the statement of the accused under Section

313 of Code of Criminal Procedure is recorded to enable

him to explain the incriminating evidence appearing

against him in the case of the complainant. The case of

the accused is of total denial and he himself got

examined as DW1 and further examined one witness as

DW2 on his behalf. He has further placed reliance on one

document marked at Ex.D1.

6. After having heard the arguments and after

appreciating the oral as well as documentary evidence,

the learned Magistrate has convicted the accused for the

offence punishable under Section 138 of Negotiable

Instruments Act, 1881 (hereinafter referred to as 'the

Act' for short) and sentenced him to undergo Simple

Imprisonment for a period of one year with fine of

Rs.5,000/- and also awarded a compensation of

Rs.1,75,000/- to the complainant.

7. Being aggrieved by this judgment of conviction

and order of sentence, the accused has approached the

learned Principal Sessions Judge, Kolar in

Crl.A.No.7/2012. The learned Sessions Judge after re-

appreciating the oral and documentary evidence,

dismissed the appeal by confirming the judgment of

conviction and order of sentence passed by the learned

Magistrate. Being aggrieved by these concurrent findings

of both the courts below, the accused is before this court

by way of this revision.

8. Heard the arguments advanced by the learned

counsel for revision petitioner and learned counsel for

respondent. Perused the records.

9. The learned counsel for revision petitioner

would contend that though the cheque belonged to the

accused, he has not admitted his signature on the cheque

and the complainant has also failed to establish his

financial status. He would further assert that the

evidence of PW1 and PW3 in this regard is inconsistent

and contrary and hence, he would contend that the

presumption under Section 139 of the Act is not available

to the complainant. He would contend that the cheque

leaf was stolen from his house and his signature has been

forged. He would further assert that both the courts

below have failed to appreciate these aspects and hence,

he would contend that the judgment of conviction and

order of sentence passed by both the courts below are

perverse and arbitrary. Hence, he would seek for

interference by this court.

10. Per contra, learned counsel for respondent

would support the judgment of conviction and order of

sentence. He would contend that though the signature on

the cheque has been disputed, the conduct of the

accused disclose that he went on changing his signatures.

It is also asserted that the transaction has taken place in

presence of PW3 and PW3 has identified the signature of

accused on the cheque as it was signed in his presence.

He would further assert that the defence of the accused

regarding theft of the cheque was not an acceptable

defence, since, no complaint was lodged and no steps

were taken by the accused in this regard. Hence, he

would contend that both the courts below have

appreciated the oral and documentary evidence in detail

and have rightly convicted the accused and as such, he

would seek for dismissal of the revision petition.

11. Having heard the arguments and after

appreciating the oral and documentary evidence, now the

following point would arise for my consideration:

(i) Whether the judgment of conviction and order of sentence passed by the trial court and confirmed by the appellate court are perverse, arbitrary or illegal so as to call for any interference by this court?

12. It is the specific contention of the complainant

that accused is well acquainted to him and on

05.05.2003, he approached him at his residence for a

hand loan of Rs.1,75,000/- and as such, he lent the said

amount, which was available in his house and accused

has issued a cheque under Ex.P1. On the contrary, it is

the specific defence of the accused that the cheque was

stolen from his house and the signature on the cheque

does not belongs to him. It is the contention of the

complainant that he is working as a clerk in a B.Ed

College. He also claims that his salary was Rs.2,500/- per

month. He further asserts that he is also running a

grocery shop in Nehru Ground and claims that he has

invested Rs.4 Lakhs for his grocery business.

Interestingly, he asserts that in respect of transaction of

grocery shop, he has not kept any accounts.

13. As per the complainant, this transaction has

taken place in the year 2003. The amount of

Rs.1,75,000/- in the year 2003 was a heavy amount.

Admittedly, the salary of complainant itself was hardly

Rs.2,500/- per month. Though he asserts that he is

running a grocery shop, the said aspect has been

disputed and the complainant has not produced any

documents to show that he is running a grocery shop and

invested Rs.4 Lakhs for his business. Further, when he is

running a grocery shop, he is bound to keep accounts of

income and expenses, but he claims that he has not kept

any accounts.

14. In the further cross-examination, complainant

has admitted that he has no other documents except

Ex.P1 to show that he has advanced Rs.1,75,000/- to the

accused. In the further cross-examination, he has also

admitted that on the basis of pronote, he has lodged a

case and in respect of cheque, he has lodged a case for

Rs.35,000/- and in respect of pronote, the case was for

Rs.90,000/-. This clearly disclose that the complainant is

illegally doing money lending business.

15. Further the complainant has asserted that on

04.05.2003, morning at 7.00 a.m., the complainant

approached him and sought a sum of Rs.1,75,000/- and

he deposed that he asked him to come on the next date

and on the next day, when the accused approached him,

he lent the amount. He has specifically asserted that

while he was lending the amount, except himself, no one

was present. He asserts that in order to purchase the

grocery, he has kept Rs.1,75,000/- in his house and he

has lent the same to the accused. It is hard to accept the

fact that when the accused is not a close friend of

complainant, the complainant has lent him an amount of

Rs.1,75,000/- kept for his business purpose without

charging any interest. How this amount was secured by

the complainant is not at all disclosed and his cross-

examination further disclose that he has filed a number of

cases on the basis of pronote and cheque. These aspects

establish that complainant is doing money lending

business illegally.

16. The accused has denied his signature on the

cheque itself. When the accused has denied his signature

on the cheque, the initial presumption under Section 139

of the Act cannot be drawn to the case in hand. The

complainant has tried to rely on the evidence of PW3 who

claims that he was present during the transaction and in

his presence; the accused has signed the cheque. But

interestingly, the complainant in his cross-examination

specifically admitted that while lending the amount to the

accused, no one was present. In view of this aspect, the

evidence of PW3 that he was present and in his presence,

accused received the amount and signed the cheque

cannot be accepted. Further, PW3 asserts that as

complainant has insisted the accused that he should

come with any person conversant with complainant, to

get the hand loan and for that purpose, he accompanied

the accused. But this fact was not at all stated by the

complainant and these versions are inconsistent. Even

complainant no where asserted the presence of PW3.

Even PW3 in his cross-examination admitted that he has

also filed number of cases and he attends the court in

those cases. This clearly discloses that PW3 is also doing

money lending business.

17. PW2 has deposed that cheque was returned

and he asserts that cheque was returned on the ground

that there was no sufficient funds, but the endorsement

itself disclose that cheque was returned not on the

ground of 'insufficiency of funds' but, 'signature differs'.

Hence, the evidence of PW2 and PW3 would not assist the

complainant in any way.

18. Though the accused has taken a defence

regarding theft of the cheque, he has not produced any

document to show that he has taken any action in this

regard. However, that itself cannot be a ground to draw a

presumption in favour of the complainant. Unless the

complainant discharges his burden of proving that, the

amount of Rs.1,75,000/- was advanced to the accused

and the cheque was issued towards legally enforceable

debt, the complainant is not going to succeed in this

case. As observed above, the financial capacity of the

complainant itself is at stake. He has not produced any

documents to show regarding he running a grocery shop

and his salary is hardly Rs.2,500/- per month. Hence, it

can safely be presumed that he is not financially sound to

advance such a huge loan. He has not produced any of

his bank statements to show his financial capacity.

19. The complainant has also not taken any steps

to secure the opinion of expert regarding the signature of

the accused on disputed cheque Ex.P1. No such attempt

has been made by the complainant and he tried to rely

on the evidence of PW3 asserting that the accused signed

Ex.P1 in his presence, but complainant himself admitted

that no one was present during the said transaction. In

view of the these facts and circumstances, it is evident

that the complainant has failed to establish the fact that

Ex.P1 bears the signature of the accused and it was

issued towards legally enforceable debt. When the

complainant has failed to prove the guilt of the accused

beyond all reasonable doubt, question of convicting him

in this regard does not arise at all only on the ground that

he has failed to prove his defence. Unless the

complainant initially discharges his burden, the defence of

accused does not have any much relevance.

20. Both the courts below have failed to

appreciate the oral as well as the documentary evidence

in this regard in proper perspective and have only on the

basis of evidence of PW1 and PW3 came to a conclusion

that the cheque was issued by the accused. Even they

have not considered the financial status of the

complainant to advance such huge amount. Hence, the

entire approach of both the courts below is perverse and

arbitrary, which has resulted in miscarriage of justice.

Considering these facts and circumstances, the judgment

of conviction and order of sentence passed by both the

courts below call for interference. Hence, the point under

consideration is answered in the affirmative and

accordingly, revision petition needs to be allowed.

Hence, I proceed to pass the following:

ORDER

(i) The revision petition is allowed.

(ii) The impugned judgment of conviction and order

of sentence passed by Senior Civil Judge and

Principal JMFC, KGF in C.C.No.260/04 and confirmed

by Principal District and Sessions Judge, Kolar, in

Crl.A.No.7/12 vide judgment dated 31.01.2015 are

set aside.