Karnataka High Court

Sri M T Damodara vs Smt K P Chandrakala on 9 March, 2023

Bench: S Vishwajith Shetty

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                                                         CRL.RP No. 921 of 2013




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 9TH DAY OF MARCH, 2023
                                              BEFORE
                         THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
                                     CRL.R.P. NO. 921 OF 2013
                   BETWEEN:
                   SRI M.T. DAMODARA
                   S/O LATE MUDAGADDE THAMMAIAH
                   AGED ABOUT 56 YEARS
                   AGRICULTURIST
                   RESIDING AT GARGANDOOR
                   VILLAGE, KUMBOOR POST
                   SOMAWARPET TALUK
                   KODAGU DISTRICT.
                                                                    ...PETITIONER
                   (BY SRI K.B. JAYALAKSHMI, AMICUS CURAIE)
                   AND:
Digitally signed
by B A KRISHNA     SMT. K.P. CHANDRAKALA
KUMAR
Location: High     W/O SRI PRASANNA
Court of           AGED ABOUT 52 YEARS
Karnataka
                   AGRICULTURIST
                   RESIDING AT GUMMANKOLLY
                   VILLAGE, SOMAWARPET TALUK
                   KODAGU DISTRICT.
                                                                   ...RESPONDENT
                   (BY SRI VIJAYA RAGHAVA SARATHY H.M, ADV.)
                        THIS CRL.R.P. IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
                   SET ASIDE THE JUDGMENT DATED 8.08.2012 PASSED BY THE ADDL.
                   C.J. AND J.M.F.C., SOMWARPET IN C.C.NO.176/2010 AND
                   JUDGMENT DATED 19.07.2013 PASSED BY THE HON'BLE S.J.,
                   KODAGU, MADIKERI IN CRL.A.NO.54/2012 AND ACQUIT THE
                   APPELLANT.

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

                                              ORDER

This Criminal Revision Petition under Section 397 of

Code of Criminal Procedure, 1973 (for short 'Cr.P.C') has been

CRL.RP No. 921 of 2013

filed by the petitioner challenging the judgment and order of

conviction and sentence passed by the Court of Additional Civil

Judge & JMFC, Somwarpet (for short the 'Trial Court) in

C.C.No.176/2010 dated 08.08.2012 and the judgment and

order passed by Sessions Judge, Kodagu, Madikeri (for short

the 'Appellate Court') in Crl.A.No.54/2012 dated 19.07.2013.

2. Heard the learned counsel for the petitioner and the

learned counsel for the respondent.

3. Facts leading to filing of this petition as revealed

from the records narrated briefly are, the respondent-

complainant had filed a private complaint under Section 200 of

Cr.P.C., against the petitioner for the offence punishable under

Section 138 of Negotiable Instruments Act, 1881 ( for short,

'N.I. Act') alleging that the petitioner had issued a cheque

bearing no.16908 dated 30.06.2009 in her favour in the month

of May, 2009 drawn on Vyavasaya Seva Sahakara Bank

Niyamitha, Igooru (for short 'Bank') for discharge of his legally

recoverable debt. The said cheque on presentation for the

offences punishable under Section realization was dishonoured

with shara "Insufficient funds". The respondent thereafter got

issued a legal notice to the petitioner on 19.07.2009 and the

CRL.RP No. 921 of 2013

said notice was duly served on the petitioner. On receipt of the

same, the petitioner had given a reply stating that cheque in

question which was given by the petitioner to the Bank towards

security of loan borrowed was misused by the respondent in

collusion with the Chairman of the Bank and therefore, he was

not liable to pay amount covered under cheque. The

respondent thereafter filed a private complaint against the

petitioner for the offence punishable under Section 138 of N.I.

Act. In the said proceedings, after service of summons, the

petitioner had appeared before the Trial Court and pleaded not

guilty.

4. The respondent - complainant in order to prove her

case against the petitioner had examined herself as PW.1 and

also got marked 7 documents as Ex.P.1 to P7. The petitioner

during the course of his Section 313 of Cr.P.C., statement had

denied the incriminating evidence which was available on

record against him. In support of his defence, he had examined

himself as DW.1 and Manager of the Bank was examined as

DW.2 and petitioner also got marked 4 documents as ExD1 to

D4. The Trial Court thereafter heard the arguments addressed

on both sides and by its judgment and order dated 08.08.2012

CRL.RP No. 921 of 2013

convicted the petitioner for the offence punishable under

Section of 138 of N.I. Act and sentenced him to pay fine of

Rs.3,00,000/-, in default to payment of fine, undergo Simple

Imprisonment for 6 months for the said offence. Being

aggrieved by the said judgment and order of conviction, the

petitioner had filed Crl.A.No.54/2012. The Appellate Court by

its judgment and order dated 19.07.2013 had dismissed the

appeal filed by the petitioner. It is under these circumstances,

the petitioner is before this Court in this revision petition.

5. Learned Amicus Curiae appearing on behalf of the

petitioner submits that the Courts below have erred in

convicting the petitioner for the alleged offences. She submits

that the defence of the petitioner appears to be highly probable

and the respondent - complainant has not produced any

material to establish the transaction between the petitioner and

the respondent. She submits that since a loan of Rs.5,91,850/-

was sanctioned to the petitioner and the petitioner having

withdrawn the said amount on 08.05.2009, it is highly

improbable he could have further borrowed any amount from

the respondent immediately thereafter. She accordingly, prays

to allow the petition.

CRL.RP No. 921 of 2013

6. Learned counsel for the respondent submits that

signature found in the cheque in question is not disputed by the

petitioner and therefore there is a presumption under Section

139 of N.I against him. Act. He submits that there is concurrent

finding of guilt recorded by the Courts below and unless the

petitioner is able to show that the impugned judgment and

order suffers from illegality or perversity this Court cannot

interfere in exercise of its revisional jurisdiction. Accordingly, he

prays to dismiss the petition.

7. The respondent - complainant in order to prove her

case has examined herself as PW.1 before the Trial Court and

also got marked 7 witnesses as Ex.P1 to P7. Ex.P1 is the

cheque in question which is allegedly issued by the petitioner to

the respondent towards discharge of legally recoverable debt.

Ex.P4 is legal notice got issued by the respondent to the

petitioner in compliance of statutory requirements. Ex.P6 is the

reply given by the petitioner to the said legal notice. Ex.P7 is

the copy of the private complaint filed by the respondent before

the Trial Court under Section 200 of Cr.P.C.,

CRL.RP No. 921 of 2013

8. From perusal of Exs.P4 and 7 it is seen that the

respondent - complainant has not mentioned anything about

the alleged transaction under which she had paid a sum of

Rs.2,25,000/- to the petitioner. She has not stated in both

these documents the purpose for which amount of

Rs.2,25,000/- was paid by her and also the manner in which

the said amount was paid. She has also not mentioned when

the said amount was paid by her to the petitioner. In reply

notice, the petitioner has clearly denied any monetary

transaction with the respondent and he has stated that he and

the respondent were earlier working for the same political party

and subsequently, he had joined some other political party and

the cheque issued by him towards security for the loan

borrowed by him from the Bank was misused by the

respondent in collusion with the Chairman of the Bank.

9. The complainant has examined herself as PW1

before the Trial Court. Even during the course of her

examination-in-chief she does not disclose the particulars of

loan transaction under which the amount of Rs.2,25,000/- was

paid by her to the respondent. She has not said anything about

the manner in which the amount was paid by her to the

CRL.RP No. 921 of 2013

petitioner nor has she said anything as to when the said

amount was paid by her to the respondent. It is only during the

course of her cross-examination she has stated that during the

second week of May 2009, she had paid the amount to the

petitioner in the presence of her husband and on the very same

day, Ex.P1 cheque was issued by the petitioner in her favour

towards repayment of the loan borrowed by him. The

respondent has not given any particulars about the loan

transaction between herself and the petitioner in her legal

notice, complaint or during the course of her examination-in-

chief. It is the first time, during the course of cross-

examination she makes a statement that the amount was paid

by her to the petitioner during second week of May, 2009 in the

presence of her husband. She has not examined her husband

to prove this transaction.

10. It is the specific defence of the petitioner - accused

that the cheque in question along with another cheque bearing

no.16907 was handed over by him to the Bank towards security

of the loan borrowed by him. This defence has been put

forward by the petitioner on the very inception itself while

issuing reply to the legal notice issued on behalf of the

CRL.RP No. 921 of 2013

respondent. Even during the course of his deposition, he has

reiterated the same. He has also got examined DW.2 who is the

Manager of the Bank as DW.2. DW.2 during the course of his

examination-in-chief has stated that on 07.05.2009, the

petitioner had collected 3 cheque leaves bearing no.16906,

16907 and 16908 from the bank and on 08.05.2009 by using

cheque bearing no.16906 he had withdrawn a sum of

Rs.5,91,850/- from the bank which was the loan amount

sanctioned to him for agricultural purpose by bank. If the

petitioner was sanctioned a sum of Rs.5,91,850/- by the bank

and if the said amount was withdrawn by him on 08.05.2009 it

become highly doubtful that he would have borrowed another

sum of Rs.2,25,000/- from the respondent during the second

week of May, 2009. This alleged transaction is not proved by

respondent. The defence of the petitioner that other two

cheques bearing no.16907 and 16908 were given by him to the

bank towards security of loan amount borrowed by him appears

highly probable.

11. After receipt of legal notice, the petitioner has not

only given a police complaint regarding misuse of aforesaid two

cheques but he has also given a complaint to the Manager of

CRL.RP No. 921 of 2013

the Bank regarding misuse of aforesaid two cheques. These

documents are produced by him before the Trial Court as

Exs.D1, D2 and D3. Therefore, the defence of the petitioner

that the cheque which was given by him to the bank towards

security of loan availed by him appears to be highly probable.

12. On the other hand, the respondent - complainant

has failed to prove the transaction between herself and the

petitioner. The Trial Court as well as the Appellate Court have

completely failed to appreciate this aspect of the matter.

Having regard to probable defence established by the

petitioner, the presumption that is available against him under

Section 139 of the N.I. Act stood rebutted. The Trial Court has

proceeded to convict the petitioner only on the presumption

available against the petitioner under Section 139 of N.I. Act

without appreciating the fact that oral and documentary

evidence available on record could completely probabalize the

defence of the petitioner. Under the circumstance, the Trial

Court as well as the Appellate Court were not justified in

convicting the petitioner for the offence punishable under

Section 138 of N.I. Act and therefore, the impugned judgment

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CRL.RP No. 921 of 2013

and order of conviction and sentence passed by the Courts

below cannot be sustained. Accordingly, the following :-

::ORDER::

Criminal Revision Petition is allowed.

The judgment and order of conviction and sentence passed by the Court of Additional Civil Judge & JMFC, Somwarpet in C.C.No.176/2010 dated 08.08.2012 and the judgment and order passed by the Court of Sessions Judge, Kodagu, Madikeri in Crl.A.No.54/2012 dated 19.07.2013 are set aside.