Karnataka High Court
Sri. K M Mohan Kumar vs Sri. K M Shivanna on 30 October, 2023
Bench: H.P.Sandesh
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CRL.RP No. 464 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.464 OF 2016
BETWEEN:
1. SRI K.M. MOHAN KUMAR
S/O SRI BANDARI MALLAIAH,
AGED ABOUT 35 YEARS,
AGRICULTURIST,
R/O VIDYA NAGARA (TOTADAMANE)
KADUR TOWN,
KADUR TALUK-577548
...PETITIONER
(BY SRI ONKAR K.B., ADVOCATE)
AND:
1. SRI K.M. SHIVANNA
S/O K.H.MALLAIAH,
AGED ABOUT 43 YEARS,
AGRICULTURIST,
Digitally signed
by SHARANYA T R/O MYLARALIGESHWARA SWAMY STREET,
Location: HIGH KALIDASA NAGARA,
COURT OF KADUR TOWN-577 548
KARNATAKA
...RESPONDENT
(BY SRI JAGADEESHA P., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET-ASIDE THE JUDGMENT AND ORDER PASED
BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AT
CHICKMAGALURU IN CRL.A.NO.195/2013 DATED 09.10.2015
CONFIRMING THE CONVICTION JUDGMENT AND ORDER
PASSED BY THE PRL. CIVIL JUDGE AND JMFC AT KADUR IN
C.C.NO.22/2010 DATED 20.05.2013 CONVICTING THE
PETITIONER FOR THE OFFENCE P/U/S 138 OF N.I. ACT AND
SENTENCING HIM TO PAY FINE OF RS.16,00,000/- AND IN
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DEFAULT TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD
OF 6 MONTHS AND ALLOW THIS CRL.REV.PETITION.
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 State.
2. This revision is filed against the judgment of
conviction passed in C.C.No.22/2010 and also against the
confirmation of the conviction order passed in Criminal Appeal
No.195/2013.
3. The factual matrix of case of the complainant before
the Trial Court that both complainant and accused are cousins
and this petitioner got converted the land bearing Sy.No.56/p2
measuring 1 acre from agricultural to non-agricultural purpose
and the petitioner has approached the complainant for financial
assistance for development of remaining land in Sy.No.56/p2
measuring 2 acres and he has availed an amount of
Rs.8,00,000/- and he has also agreed to give two sites
measuring 40 x 60 feet in Sy.No.56/p2 at Rs.250/- per square
feet. Subsequently, the accused has not given two sites as
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promised by him, since, the market value of the sites was
escalated to Rs.400/- per square feet, but he has issued
cheque for an amount of Rs.8,00,000/- in 2009. The same was
presented for encashment, it was dishonoured and returned
with an endorsement "Funds insufficient". Hence, he had issued
the legal notice, but no reply was given. The Trial Court taken
the cognizance and issued process and allowed the parties to
lead evidence.
4. The complainant examined himself as PW1 and got
marked the documents Exs.P1 to P23. The statement of
accused was also recorded under Section 313 and he also
examined himself as DW1 and examined one witness as DW2
and got marked the documents Ex.D1 to D21.
5. The Trial Court having considered the materials
available on record and also taking into note of the admission
of issuance of cheque, did not believe the defence of the
petitioner herein and drawn the presumption in favour of the
complainant and ordered to pay double the amount of cheque
i.e. Rs.16,00,000/-. Out of that, ordered to pay in favour of
complaint an amount of Rs.15,80,000/- and Rs.20,000/- shall
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vests with the State. In default to pay the fine amount, he shall
undergo simple imprisonment for a period of six months. Being
aggrieved by the judgment of conviction and sentence an
appeal is filed before the Appellate Court and the same is
numbered as Criminal Appeal No.195/2013 and the Appellate
Court having re-assessed the material available on record
answered the points which have been raised by the Appellate
Court as negative in coming to the conclusion that he has
issued two cheques and not rebutted the evidence of the
complainant and confirmed the judgment of conviction. Hence,
the present revision petition is filed before this Court.
6. The counsel appearing for the petitioner would
vehemently contend that, there is no transaction between the
petitioner and the respondent and only petitioner would
contend that the brother of the respondent is a Government
employee. When the employees are in need of money, they
have approached brother of the respondent and on insistence
he had issued two cheques as security in order to advance the
loan in favour of his employees and hence he has given two
cheques. The said employees availed only an amount of
Rs.80,000/- and the respondent was not having any source of
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income to advance the amount of Rs.8,00,000/- as contended
by the respondent. The counsel also brought to notice of this
Court that there is a demand on the part of PW1 that by petty
business he earns only Rs.2,000/- to Rs.3,000/- per month and
no document is placed before the Court for having source of
income. The counsel also would vehemently contend that
unless the respondent proved that the same is illegally payable
debt, the question of invoking presumption under Section 139
of Negotiable Instruments Act does not arise and also the
counsel would submit that according to the complainant an
amount was advanced in the year 2005, but the cheque was
issued in the year 2009 and hence, the same is barred by
limitation. These are the aspects have not been considered by
the Trial Court as well as the First Appellate Court. The counsel
also would vehemently contend that, in support of his
contention the respondent has examined himself as DW1 and
also examined DW2 and he categorically deposed that the
cheques are given as security and the loan was availed from
one Sri.Chandrashekar who happens to be the brother of the
respondent. The counsel also vehemently contend that the
petitioner herein has rebutted the case of the complainant and
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produced the document of Exs.P1 to P23. The counsel also
vehemently contend that the very document produced by the
petitioner herein clearly discloses that property was alienated
even prior to 2005 and not subsequent to availing of loan and
the same is also admitted in the cross examination of PW1 that
no property was alienated after the transaction and inspite of
these materials are available on record when the specific
defence was taken, the cheques are given as security only in
order to help the employees of the petitioner. Both the Trial
Court as well as the First Appellate Court failed to consider the
same and hence this Court has to exercise the revisional
jurisdiction that both the Courts committed an error in not
considering the material on record.
7. Per contra, the counsel appearing for the
respondent/complainant would vehemently contend that the
document Ex.P1 cheque drawn on the account of the petitioner
herein is not in dispute. The cheque is also marked as Ex.P1
and he has categorically admitted that he has issued the
cheque Ex.P1 and also produced the document of Ex.P16 which
shows that accused is the owner of the property bearing
Sy.No.56/p2 measuring 3 acres of Mallapanahally village and
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the property is converted is also not in dispute. The counsel
would vehemently contend that the accused had issued the
cheque in favour of the complainant for a sum of Rs.8,00,000/-
. It is also not in dispute that no reply was given when the
notice was issued and he kept quiet, only after thought set up
the defence that cheque was given only as security and if really
the cheque was given towards the debt, he would have given
the reply immediately. But no reply was given and the same
was admitted in the cross examination. It is also the contention
that DW2 categorically admits in the cross examination that he
was working with DW1 and he is an interested witness and
nothing is produced as loan transaction as contended by
petitioner herein. The DW1 categorically admitted that loan
transaction was one year back and he was examined
subsequently after filing of the complaint and while examining
he says that it was a transaction of one year back, but
transaction of the year 2005 and hence, in the very cross
examination he categorically admits that payment was made
one year back, but the very case of the complainant that
cheque was issued in the year 2009. The DW1 also not
disputed the fact that they are the relatives and cousins and
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relationship is also not disputed. Both the Trial Court as well as
the First Appellate Court have taken note of the material
available on record given the concurrent finding. Even the
Appellate Court also taken note of the very contention that
cheque was misused, has not been substantiated by the
petitioner herein and except the self testimony of DW1 and
interested witness of evidence of DW2, nothing is placed on
record to rebut the evidence of the complainant and hence, it
does not requires any interference.
8. Having heard the petitioner's counsel and also the
counsel appearing for the respondent and also on perusal of the
materials in view of the grounds urged in the revision, the
points that would arise for consideration before this Court are:
i) Whether the petitioner has made out the ground
to exercise the revisional jurisdiction and
whether the order passed by the Trial Court as
well as the Appellate Court suffers from its
legality and correctness?
ii) What order?
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9. Having considered the grounds urged in the revision
petition as well as the material available on record and also the
scope of revision is very limited and only this Court can
interfere with the findings of the Trial Court as well as the
Appellate Court, if any order suffers from its legality and
correctness. The main contention of the complainant is that in
order to alienation of 2 acres of remaining land in Sy.No.56/p2,
he had availed an amount of Rs.8,00,000/- and it is his case
that he was agreed to sell two sites measuring 40 x 60 feet at
the rate of Rs.250/- and he demanded more amount of
Rs.400/- in view of escalation of price, he issued the cheque for
return of money.
10. Having perused the material on record, it is not in
dispute that, cheque was issued by the petitioner herein and
also it is not in dispute that cheque was bounced and also it is
not in dispute that notice was issued against the petitioner
herein and also it is not in dispute that no reply was given. It is
also important to note that an explanation is offered that after
issuance of notice, he went with notice and the respondent has
replied, that can be considered later. But in order to prove the
factum that he had approached the complainant/respondent
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immediately after receipt of notice, not placed any material
before the Court. No doubt respondent examined as DW1 and
examined one witness as DW2. It is important to note that it is
the suggestion through out the cross examination of PW1 that
his employees have availed the loan from the brother of the
respondent, since brother of the respondent Mr.Chandrashekar
is working in the Government service and he had advanced the
amount. But on perusal of the records it is suggested that only
availed an amount of Rs.80,000/- and also DW2 says he has
availed only an amount of Rs.20,000/- out of Rs.1,00,000/-.
But in the suggestion and evidence adduced by the witnesses
they deposes that it was an amount of Rs.1,25,000/- and no
explanation with regard to the contradiction is concerned,
availing an amount of Rs.80,000/- and also availing an amount
of Rs.1,25,000/-. DW1 categorically admitted that he got the
property by partition i.e. Sy.No.56/p2. The counsel appearing
for the petitioner brought to notice of this Court that property
was already alienated in the year 2003 itself and not
subsequent to availment of the loan amount as contended by
the petitioner and also it is elicited from the evidence of PW1
that no property is alienated subsequent to advancing of the
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amount. But he categorically admits that cheque belongs to
him and the same pertains to his account and notice was issued
and no reply was given and also he categorically admits that he
knew the contents of the said notice. But explanation given was
not satisfied with regard to non issuance of reply notice. It is
also important to note that when the notice was issued and
relationship is admitted that both are the cousins and the fact
that the sites are formed and sold is also not in dispute. But
DW2 contents that the said cheques were given in favour of
the complainant as security. But he claims that as security two
cheques are given to Chandrashekar and the Appellate Court
also taken note of the fact that the said Chandrashekar was not
examined and DW2 claims that loan was availed on behalf of
Dhanapadaiah, Annappanaik, Shankar and also Thimmanaik
and in the cross-examination he categorically admits with
regard to that he was working with DW1 as coolie and the
others also working with DW1. But in the cross- examination he
admits that total Rs.1,00,000/- was received. Out of that, he
has taken an amount of Rs.20,000/-, but he made their
payment. But no such documents are placed before the Court
and also he does not know the cheque number and cheque
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amount when the cheques were given as security and these
evidence are not accepted by the Trial Court as well as the
Appellate Court. In the cross-examination of DW1 except
eliciting the answer that he is doing the business of Beeda shop
and his income of Rs.2,000/- to 3,000/- and no doubt in the
contention of the petitioner's counsel that he was not having
any source of income. But during the cross examination of the
PW1, though suggestion was made that he was not having any
source, it is elicited that he is having agricultural land and only
he has given 2 acres each to his two brothers and remaining
land he is taking care off and he is cultivating the same and
also he categorically says that for his portion he is having 15
acres of land and the same is not disputed when the PW1
deposes before the Court that he is having 15 acres of land.
The main contention that he is not having the source of
income and when the material available before the Court that
he is not only doing the business of Beeda shop and he is also
having the property to the extent of 15 acres as deposed by
PW1. No doubt it is elicited in the cross examination of DW1
that no document is obtained while advancing the amount.
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Admittedly, the relationship between the complainant and the
respondent are the cousins and also both of them are having
the property and he claims that he has saved the amount from
the income of agriculture by selling Aracanut and also Coconut
and gave that money and no doubt he admits that his uncle is
also having 20 acres of land. But suggestion was made that he
is also having an income from agricultural land. But he denies
the same that he has not aware of the same. He categorically
deposes that accused only gave the cheque and the same is in
his handwriting and the same was issued in his presence and in
his presence only he had signed the same. Except on eliciting
these answers, nothing is elicited from the mouth of PW1, but
when the question was put to the witness with regard to the
source of income is concerned that PW1 also further examined
and he had produced the documents of Exs.P6 to P15 as Pahani
and also the documents standing in his name i.e. Tractor as
well as Trailer and also having deposited the amount to the
tune of Rs.5,55,739/- and to evidence the said fact Ex.P18 is
also produced before the Court.
11. The counsel appearing for the petitioner would
vehemently contend that the said amount is subsequent to the
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transaction and he claims that he was having the money in the
year 2005 and in order to substantiate the same he has not
produced any document and no doubt the amount was credited
on 19.11.2009 and these are the documents with regard to
only having made transaction and when the accused not
disputed the fact that he is also having an agricultural land and
also in the cross-examination though suggestions are made
that the documents are created and produced and nothing is
elicited in the cross- examination of PW1. No doubt he also
admits that his two brothers are working in the Government
department. Merely because they are working in Government
department, cannot be a ground to disbelieve evidence of PW1
and the very suggestion was made that even in the name of his
wife also he had purchased and the said suggestion made to
PW1 itself clearly discloses that he was having source of
income. Even in the cross-examination he categorically says
that he has purchased the property not only one time, and he
also purchased the property in different times. The said
suggestion was also made that in view of the fact that he had
purchased the property that he was not having the source and
the said suggestion was denied. He also categorically admits
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that from 1994 to 1995 he had purchased the property till 2005
and the said suggestion was made to PW1. By the defence itself
clearly shows that he is having the source of income even
purchasing the property and advanced the amount.
12. Having considered the oral and documentary
evidence available on record, taking into note of the documents
of 'P' series and the documents of 'D' series and no doubt the
respondent also produced the documents with regard to non-
alienation of property subsequent to availing of loan, but when
the presumption available in favour of the petitioner that he
had advanced the amount and also the cheque bears the
signature of the petitioner and the same is not rebutted. But
the counsel would vehemently contend that the evidence of
PW1 is rebutted, but even if he has not availed the loan of
Rs.8,00,000/- when the demand was made by causing the
notice that he had availed the loan of Rs.8,00,000/-, he would
have given the reply immediately and no such reply was given.
The very explanation given by the respondent for not replying
notice cannot be accepted. Hence, I do not find any error
committed by the Trial Court as well as the Appellate Court in
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appreciating both oral and documentary evidence available on
record.
13. However, this Court having taken note of the Ex.P1
cheque issued for an amount of Rs.8,00,000/- and the same
was issued in 2009 and transaction of the year 2005 and the
very contention of the petitioner's counsel, same is barred by
limitation, when the complainant specifically says that the
petitioner herein has agreed to sell the site at the rate of
Rs.250/-. When the petitioner did not come forward to execute
the sale deed when he made the demand, he had issued the
cheque in terms of Ex.P1 in the year 2009 and acknowledged
the earlier transaction and issued the cheque. When such being
the case, the very contention of the petitioner's counsel that,
transaction is barred by limitation cannot be accepted once he
had acknowledged the loan amount, also having given the
cheque in terms of Ex.P1 and not disputed the issuance of
cheque and issuance of legal notice and no reply was given and
having considered the relationship between the petitioner and
also the respondent they are the cousins and also no doubt it is
a case of the respondent that he had agreed to sell the two
sites at the rate of Rs.250/-, when he did not execute the sale
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deed, but he accepted the cheque when the cheque was issued
in 2009 even after lapse of four years and transaction was of
the year 2005 and the cheque was issued in 2009 and he would
have demanded more money, but he had accepted the cheque
only for Rs.8,00,000/- and having considered the said fact into
consideration and both the Trial Court as well the Appellate
Court ought to have taken note of this fact when there is a
relationship between the parties as cousins and also cheque
was issued in 2009 having the transaction of the year 2005 and
the same amount is accepted by him when the cheque was
given and no document is placed with regard to transaction of
agreeing to execute the sale deed and no such document is
placed for having agreed to sell the two sites at the rate of
Rs.250/- and this fact is also taken note of by the Trial Court as
well as the Appellate Court and instead of awarded double the
amount of cheque. Hence, it requires interference with regard
to awarding of double the amount appears to be on the higher
side and the same has to be reduced to Rs.13,00,000/- taking
into note of the transaction of the year 2005 and the same is
not supported by any documentary evidence of agreed to sell
the sites at the rate of Rs.250/- and hence the amount
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considered by the Trial Court and no doubt the Trial Court
taken note of the transaction of the year 2005 and cheque was
issued in 2009 and taken note of the judgment of the Kerala
High Court and also the scope of Section 20 of Negotiable
Instrument Act, having given the cheque and not substantiated
the contention with regard to the cheques are given as
security, it is appropriate to modify the order of the Trial Court
and Appellate Court and no grounds are made out to set aside
the Judgment of the Trial Court as well as the Appellate Court.
14. In view of the discussions made above, I pass the
following:
ORDER
i) The revision petition is allowed in part.
ii) The judgment of conviction is upheld and
confirmation made by the Appellate Court
is also upheld. However, the sentence is
modified directing to pay an amount of
Rs.13,00,000/-. Out of Rs.13,00,000/-,
Rs.20,000/- is payable to the State and
remaining Rs.12,80,000/- is payable to
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the complainant within a period of six
weeks from today.
iii) If the amount is not paid within six weeks,
the order passed by the Trial Court is
restored.
Sd/-
JUDGE
AP
