Karnataka High Court

Sri S S Raju vs Smt Saroja M P on 30 August, 2023

Bench: Rajendra Badamikar

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                                                       NC: 2023:KHC:31466
                                                   CRL.RP No. 975 of 2015




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 30TH DAY OF AUGUST, 2023

                                         BEFORE
                    THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                     CRIMINAL REVISION PETITION NO. 975 OF 2015
                 BETWEEN:

                 SRI. S.S. RAJU S/O SIDDEGOWDA,
                 AGED ABOUT 37 YEARS,
                 RESIDING AT NO.225,
                 6TH A CROSS, WATER TANK ROAD,
                 TULASAMMA LAYOUT,
                 MAONRAYANAPALYA, R.T. NAGAR
                 BANGALORE 560 032.
                                                            ...PETITIONER
                 (BY SRI. K.P. BHUVAN, ADVOCATE)
                 AND:

                 SMT. SAROJA .M.P,
                 W/O JANARDHAN,
                 AGED ABOUT 36 YEARS,
                 RESIDING AT NO.40,
                 6TH C CROSS, OPP. TOUCH WOOD APARTMENTS,
                 MANORAYANAPALYA, R.T. NAGAR
Digitally        BANGALORE-560 032.
signed by                                                ...RESPONDENT
RENUKAMBA        (BY SRI. N. KUMAR, ADVOCATE(ABSENT))
KG
                      THIS CRL.RP IS FILED U/S.397 & 401 OF CR.P.C
Location: High   PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE
Court of         DATED 22.1.2015 PASSED BY THE XVIII A.C.M.M., BANGALORE
Karnataka        IN C.C.NO.4817/2013 AND SAME IS CONFIRMING THE
                 JUDGMENT AND SENTENCE DATED 12.8.2015 PASSED BY THE
                 C/C 69TH ADDL. CITY CIVIL AND S.J., BENGALURU IN
                 CRL.A.NO.244/2015 BY ALLOWING THIS REVISION AND
                 FURTHER BE PLEASED TO ACQUIT THE PETR.

                      THIS PETITION COMING ON FOR HEARING THIS DAY,
                 THE COURT MADE THE FOLLOWING:
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                                                              NC: 2023:KHC:31466
                                                      CRL.RP No. 975 of 2015




                                   ORDER

This revision is filed by revision petitioner/accused

challenging the judgment of conviction and order of sentence

passed by XVIII A.C.M.M., Bangalore, in CC.No.4817/2013

dated 22.01.2015 and confirmed by LXIX Additional City Civil &

Sessions Judge, Bangalore, in Crl.A.No.244/2015 vide

judgment dated 12.08.2015.

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 as

under:

It is the case of the complainant that the accused is well

known to the complainant for the last ten years and he is

working as a Medical Representative. In Nov-2009 accused

approached the complainant and demanded a hand loan of

Rs.1.60,000/- for his family commitments. The complainant

further stated that he has advanced the said amount in

November-2009 in cash and accused assured to repay the

same within a period of one year with nominal rate of

NC: 2023:KHC:31466 CRL.RP No. 975 of 2015

interest. After one year, when the complainant enquired with

accused, the accused changed his residence and till October-

2012 his presence was not traceable. In October-2012

complainant traced the accused and approached him and

demanded to repay the loan amount and for discharge of the

same, accused has issued two cheques dated 23.01.2013 for

Rs.20,000/- drawn on AXIS Bank and another cheque dated

23.01.2013 for Rs.1,40,000/- drawn on ICICI Bank Ltd. When

the said cheques were presented, they were disnonoured for

insufficient of funds. The complainant has issued a legal notice

and in spite of service of notice, the accused did not repay the

cheque amount and hence, the complaint came to be lodged.

4. On the basis of the complaint, the

learned Magistrate has taken Cognizance and issued process

against the accused. Accused has appeared through his counsel

and was enlarged on bail. He has denied the accusation.

5. The complainant was examined as PW1 and her

husband was examined as PW2. The complainant has placed

reliance on seven documents marked at

Ex.P1 to Ex.P7. Thereafter, the statement of accused under

Section 313 Cr.P.C., was recorded to enable him to explain the

NC: 2023:KHC:31466 CRL.RP No. 975 of 2015

incriminating evidence appearing against him in the case of the

complainant. The case of accused is of total denial. He has

also got examined himself as DW1 and placed reliance

on one document marked at Ex.D1, which is in the reply notice

wherein he has disputed the transactions.

6. After having heard the arguments and after

perusing the oral and documentary evidence, the learned

Magistrate has convicted the accused by imposing sentence of

fine of Rs.1,75,000/- with default sentence. The said order

came to be challenged by the accused before the learned LXIX

Additional City Civil & Sessions Judge, Bangalore, in

Crl.A.No.244/2015. 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. Against these concurrent findings, this revision

petition came to be filed.

7. Heard the arguments advanced by the learned

counsel for the revision petitioner and learned counsel for the

respondent did not choose to appear before the Court to argue

the matter. Perused the records.

NC: 2023:KHC:31466 CRL.RP No. 975 of 2015

8. The learned Counsel for the petitioner would

contend that though cheques and signatures have been

admitted, they were not pertaining to the financial transaction

as asserted and complainant has no financial capacity to

advance the loan. He would also contend that the complainant

has nowhere specifically asserted as to on which date the

amount was advanced and it is simply asserted that the

amount was advanced in November-2009, which cannot be

accepted. He would also contend that the claim is also

barred by law of limitation. Hence, he would seek for allowing

the revision as both the Courts have failed to appreciate these

aspects.

9. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:

"Whether the judgment of conviction and order of sentence passed by the trial Court and affirmed by the first appellate Court are perverse, erroneous and arbitrary so as to call for any interference by this Court?"

10. It is the specific contention of the complainant that

she has advanced a hand loan of Rs.1,60,000/- to the accused

NC: 2023:KHC:31466 CRL.RP No. 975 of 2015

in November-2009. It is further asserted that in discharge of

the said debt, the accused has issued a cheque as per

Ex.P1 and Ex.P2 dated 23.01.2013 and when they were

presented, they were dishonoured as "account closed" and

"insufficient of funds".

11. The complainant was examined as PW1 and in his

examination-in-chief she has reiterated the complaint

allegations. She is very specific that in the month of November

2009 the loan was advanced but did not disclose

when exactly the loan was advanced and where it was

advanced. She even did not disclose in whose presence the

loan was advanced. It is the contention of the complainant that

accused has promised to repay the loan within one year with

nominal interest.

12. Admittedly, complainant is a house wife and her

husband is a driver. The accused has disputed the financial

status of the complainant. Without there being close

acquaintance. It is hard to accept the contention of the

complainant that she has advanced such a huge loan to

accused without charging any interest. In the cross-

examination complainant again asserted that in November

NC: 2023:KHC:31466 CRL.RP No. 975 of 2015

2009, she advanced the loan in her house situated in RT

Nagar. She claims that she do not remember the date of

advancement and she asserted that her husband was in the

house along with one Raju who is reported to be dead, but she

has not produced any documents to show that said Raju is

dead. Though the complainant asserts that she is doing

tailoring business, she has not produced any documents to

substantiate this contention. Accused has specifically disputed

the financial status of the complainant. The husband of

complainant is examined as PW2 and he has admitted that he

is a driver and the loan was advanced on 09.11.2009. It is not

a case of the complainant herself that loan was advanced on a

particular date

13. Further, according to the complainant, the loan was

advanced in November 2009 and she asserts that the

complainant has assured repayment of the same within one

year, but as observed above, no documents have been

forthcoming to substantiate the said contention that there was

any contract to show that the amount was required to be repaid

within one year that too without any interest. The cheque was

dated 23.01.2013 and from the date of advancement of the

NC: 2023:KHC:31466 CRL.RP No. 975 of 2015

loan the claim was barred by law of limitation. Complainant has

not placed any material to show that there was any agreement

to repay the loan within one year. Except bald assertion no

documents are forthcoming. She has also failed to substantiate

her contention regarding her financial status. Admittedly, her

husband is a driver and he admits that he has no financial

capacity. It is hard to accept that the complainant is paying

huge amount of Rs.1,60,000/- without there being any security

and without charging any interest. Considering these facts and

circumstances, it is evident that the complainant

has utterly failed to prove that the disputed cheques were

issued in discharge of legally enforceable debt.

14. Both the Courts below have failed to appreciate the

oral and documentary evidence in proper perspective and in a

mechanical way convicted the accused only on the ground that

signature on the cheque came to be admitted. Both the courts

below have failed to consider the financial status of the

complainant being a housewife, who is not in a position to

advance such a huge amount of Rs.1,60,000/-. The judgment

of conviction and order of sentence passed by both the courts

below suffers from perversity and hence, the judgment of

NC: 2023:KHC:31466 CRL.RP No. 975 of 2015

conviction and order of sentence passed by the both the Courts

below call for interference. Considering these facts and

circumstances, the point under consideration is answered in the

affirmative and hence, revision petition needs to be allowed.

Accordingly I proceed to pass the following:

ORDER

1. The revision petition is allowed.

2. The impugned judgment passed by XVIII A.C.M.M., Bangalore, in CC.No.4817/2013 vide judgment dated 22.01.2015 and confirmed by LXIX Additional City Civil & Sessions Judge, Bangalore, in Crl.A.No.244/2015 vide judgment dated 12.08.2015, are set aside.