Karnataka High Court
Smt. Ashwini. D vs Sri. P. Ramakrishna on 25 October, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:37775
CRL.RP No. 154 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.154 OF 2019
BETWEEN:
1. SMT. ASHWINI. D
W/O. SRI ROHI KULKARNI,
AGED ABOUT 40 YEARS,
R/AT NO.579, 3RD CROSS,
SUBHASHCHANDRA BOSE ROAD,
MATHIKERE, BANGALORE-560 054.
...PETITIONER
(BY SRI SIDDHARTH B. MUCHANDI &
SRI D. HITESH, ADVOCATES)
AND:
1. SRI P. RAMAKRISHNA
S/O. LATE PAPANNA,
AGED ABOUT 63 YEARS,
Digitally signed R/AT NO.4/1, 6TH MAIN,
by SHARANYA T
PALACE GUTTAHALLI,
Location: HIGH
COURT OF BANGALORE-560 003.
KARNATAKA ...RESPONDENT
(BY SRI BHARGAV G., ADVOCATE FOR
SRI C.R.GOPALASWAMY, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER PASSED BY THE CITY
CIVIL AND SESSIONS JUDGE (CCH-65) BANGALORE IN
CRL.A.NO.1496/17 DATED 11.01.2019 AND ALSO SET ASIDE
THE ORDER PASSED BY THE XIII A.C.M.M., BANGALORE IN
C.C.NO.10872/2016 DATED 01.09.2017.
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CRL.RP No. 154 of 2019
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the petitioner's counsel and also the counsel
appearing for the respondent.
2. This revision petition is filed against the judgment
of conviction for the offence punishable under Section 138 of
the Negotiable Instruments Act and also against the order of
confirmation passed in Criminal Appeal No.1496/2017.
3. The factual matrix of the case of the complainant
before the Trial Court that the accused had borrowed a sum of
Rs.5,00,000/- as hand loan in order to meet her domestic
needs and also other legal necessities since the complainant
and accused are family friends. Accordingly, paid an amount of
Rs.5,00,000/- on 5.8.2013 in presence of the witnesses. As an
acknowledgement, accused had executed acknowledgment of
loan dated 5.8.2013 and issued a cheque towards the
guarantee. The accused promised to repay the same within six
months, but failed to keep up this promise. Accordingly, the
complainant has presented the post-dated cheque for
encashment through his banker on 24.12.2015 and again it
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CRL.RP No. 154 of 2019
was presented on 15.2.2016 through his banker. The said
cheque was dishonoured on 17.2.2016. Hence, a legal notice
was issued on 5.3.2016 and the same was served on the
accused on 9.3.2016. Despite notice was acknowledged,
accused failed to repay the cheque amount and hence
complaint was filed.
4. The Trial Court having recorded the sworn
statement of complainant took the cognizance and issued the
summons and secured the accused and plea was recorded and
denied the claim of the complainant. The complainant also
examined as PW1 and got marked documents Exs.P1 to P8. In
support of his evidence got examined witness as PW2, but
accused was also subjected to 313 statement and thereafter he
was examined one witness i.e. Bank Manager as DW1 and got
marked documents Exs.D1 and D2.
5. The Trial Court having considered the material on
record particularly the evidence of PWs.1 and 2 as well as the
evidence of DW1 and also considering the material on record
admittedly two cheques are issued i.e. Exs.P1 and P7. The
accused has not denied the signature available in Exs.P1 and
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CRL.RP No. 154 of 2019
P7 and claim is only based on Ex.P1 and not based on Ex.P7.
The same is also taken note of by the Trial Court and also
comes to the conclusion that nothing is elicited from the mouth
of DW1 regarding transaction is concerned. The Trial Court also
taken note of the fact that though DW1 Bank Manager is
examined and Exs.D1 and D2 will not comes to the aid of the
accused. The Trial Court also taken note of the fact that the
very signature marked as Ex.P1a is not disputed by the accused
and apart from that loan application is also marked as Ex.P6
and even the accused did not step into the witness box to put
forth the case, since in the cross examination of PW1 defence
was taken that signatures were obtained on the blank cheque
as security and what transaction between the complainant and
accused also not stated and not given any explanation for
issuance of cheques Exs.P1 and P7 and hence, the Trial Court
comes to the conclusion that complainant has proved the
issuance of cheque for having borrowed the loan and did not
repay the said amount. Being aggrieved by the judgment of
conviction of the Trial Court, an appeal is filed in Criminal
Appeal No.1496/2017. The Appellate Court also having taken
note of the material available on record in paragraph No.13
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CRL.RP No. 154 of 2019
discussed the evidence of the complainant for having issued the
cheque Ex.P1 and also the endorsement Ex.P2 and also the
endorsement on Exs.P3 to P5 regarding dishonour of the
cheque and also Ex.P6 loan application and another cheque
issued in terms of Ex.P7 and also Ex.P8 and reanalyzed the
material available on record and also taken note of paragraph
No.14 that there is no specific plea of defence filed by the
accused and also taken note of regarding presumption and
rebuttal of presumption and in paragraphNo.15 comes to the
conclusion that that no such admission elicited in the cross
examination of PW1 to show that complaint has been lodged by
the complainant is false and also taken note of the evidence of
DW1 in paragraph No.16 i.e. marking of documents Exs.D1 and
D2 and comes to the conclusion that Exs.D1 and D2 will not
comes to the aid of the accused and having considered both
oral and documentary evidence available on record in
paragraphs No.17 and 18 re-appreciated the material available
on record.
6. The main contention urged in this revision petition
by the petitioner's counsel that it is the duty of the respondent
to establish that there is a legally recoverable debt from the
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CRL.RP No. 154 of 2019
petitioner and in the absence of such positive evidence the
Court below cannot convict the petitioner for the offence
punishable under Section 138 of the Negotiable Instruments
Act and also no opportunity is given to the petitioner to lead his
evidence.
7. Having perused the material available on record,
the accused examined one witness as DW1 i.e. official witness
Bank Manager and got marked documents Exs.D1 and D2 and
the same is with regard to the payment is concerned and also
the account extract of husband of the accused. In order to
rebut the evidence of complainant not entered into the witness
box and when the accused failed to enter into the witness box
and substantiate the defence, merely because examining of
DW1 will not substantiate the case of the defence. No doubt,
the accused need not enter into the witness box and the same
is only if any answers are elicited from the mouth of the
complainant to disbelieve the case of the complainant. In the
case on hand, nothing is elicited from the mouth of PW1 to
disbelieve the case of the complainant and having taken note of
material available on record complainant has been examined
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CRL.RP No. 154 of 2019
and also documents Exs.P1 to P8 are marked. Out of that,
original cheque is Ex.P1 and endorsement is Ex.P2 and Ex.P4 is
the postal receipt and Ex.P3 is the legal notice and even not
given any reply to the legal notice and notice is also
acknowledged in terms of Ex.P5 postal acknowledgement.
Apart from that loan application is also marked as Ex.P6 and
also lease agreement Ex.P8 and except the contention that the
Trial Court has not given an opportunity and the very accused
did not step into the witness box. When the accused examined
the Bank Manager as DW1, what prevented the accused
entering into the witness box and rebut the evidence of
complainant, nothing is on record to accept the case of the
petitioner. The complainant not only relied upon the original
cheque Ex.P1 and also given legal notice Ex.P3, no reply was
given and also not substantiated by leading any defence
evidence except examining DW1 Bank Manager. The document
Exs.D1 and D2 are only certified copy of the cheque and bank
statement of account. Those two documents will not come to
the aid of the petitioner herein to reverse the finding and the
very contention that the complainant has not proved the case
and burden is shifted on the accused/petitioner cannot be
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CRL.RP No. 154 of 2019
accepted and the complainant has produced oral evidence as
well as the documentary evidence with regard to the
transaction is concerned and insufficiency of funds and also
dishonour of cheque and issuance of notice as well as no reply
was given and only defence was set up in the cross
examination that cheques are taken as security, but no
explanation is given as to why he gave two cheques in favour
of the complainant in terms of Exs.P1 and P7 as security. When
such being the case, I do not find any error committed by the
Trial Court as well as the Appellate Court in re-appreciating
both oral and documentary evidence and not made out any
case to exercise the revisional power to come to other
conclusion and hence, I do not find any merit in the revision to
reverse the finding of the Trial Court.
8. The counsel also vehemently contend that subject
matter of cheque is bearing No.924033 and in the agreement
dated 5.8.2013 discloses only the cheque No.924032 and the
same is a different cheque. Having perused the evidence of the
complainant specifically mentioned the cheque number and in
the evidence also PW1 categorically stated that two cheques
were given and the same are marked as Exs.P1 and P7 and
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CRL.RP No. 154 of 2019
both the cheques are also produced before the Court. The same
is also on record as Exs.P1 and P7 and no doubt in the loan
agreement the cheque number is mentioned as 924032,
subject matter of the cheque is 924033. But both are placed
before the Court and hence, the very contention of the
petitioner's counsel that different cheque has been presented
and filed the complaint cannot be accepted and the very
evidence of PW1 is also very clear that he had collected two
cheques from the accused and the same are also elicited from
the mouth of PW1 in the cross examination by the petitioner's
counsel himself and also given explanation by the complainant
that Exs.P1 and P7 are the documents which have been
collected in respect of transaction. Hence, the very contention
of the petitioner's counsel cannot be accepted and not rebutted
the evidence of complainant even though oral and documentary
evidence substantiate the case of the complainant and hence, I
do not find any merit in the revision to reverse the finding.
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NC: 2023:KHC:37775
CRL.RP No. 154 of 2019
9. In view of the discussions made above, I pass the
following:
ORDER
Criminal Revision Petition is dismissed.
Sd/-
JUDGE
AP
