V. Srinivas vs B.N. Eshwarappa
2023 Latest Caselaw 6736 Kant

                            -1-
                                  CRL.RP No. 1170 of 2015
                              C/W CRL.RP NO.1171 of 2015    R
  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
    DATED THIS THE 23RD DAY OF SEPTEMBER, 2023
                        BEFORE
         THE HON'BLE MR JUSTICE S RACHAIAH
   CRIMINAL REVISION PETITION NO.1170 OF 2015
                         C/W

   CRIMINAL REVISION PETITION NO.1171 OF 2015

IN CRIMINAL REVISION PETITION NO.1170 OF 2015
BETWEEN:
V. SRINIVAS
S/O VEERACHAR
AGED ABOUT 47 YEARS
R/AT NO.30, 5TH CROSS
R.T. ROAD
CHICKPET
BANGALORE - 560 053.

                                             ...PETITIONER
(BY SRI. SHRIVATSA, ADVOCATE FOR
    SRI. P.N. HEGDE, ADVOCATE)

AND:
B.N. ESHWARAPPA
S.O LATE NINGEGOWDA
AGED ABOUT 59 YEARS
R/AT NO.32
2ND MAIN, BYRASANDRA
IST BLOCK, JAYANAGAR EAST
BANGALORE - 560 011.

                                            ...RESPONDENT
(BY SRI. T.M. VIJAYAKUMAR, ADVOCATE)
     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
AND SENTENCE AND FINE OF RS.1,10,000/- IMPOSED BY THE
LEARNED    XXI     ADDITIONAL     CHIEF    METROPOLITAN
MAGISTRATE, BANGALORE, PASSED IN C.C.NO.20263/2013
VIDE JUDGMENT DATED 12/09/2014 AND ETC.,
                             -2-
                                  CRL.RP No. 1170 of 2015
                              C/W CRL.RP NO.1171 of 2015




IN CRIMINAL REVISION PETITION.NO.1171 OF 2015

BETWEEN:
V. SRINIVAS
S/O VEERACHAR
AGED ABOUT 47 YEARS
R/AT NO.30, 5TH CROSS
R.T. ROAD, CHICKPET
BANGALORE - 560 053.

                                             ...PETITIONER
(BY SRI. SHRIVATSA, ADVOCATE FOR
SRI P.N. HEGDE, ADVOCATE)
AND:
B.N. ESHWARAPPA
S/O LATE NINGEGOWDA
AGED ABOUT 59 YEARS
R/AT NO.32, 2ND MAIN
BYRASANDRA, IST BLOCK
JAYANAGAR EAST
BANGALORE - 560 011.

                                            ...RESPONDENT
(BY SRI. T.M. VIJAYAKUMAR, ADVOCATE)


      THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO ALLOW THIS PETITION AND SET ASIDE THE JUDGMENT AND
ORDER OF CONVICTION AND SENTENCE AND FINE OF
RS.88,000/- IMPOSED BY THE LEARNED XXI ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE, BANAGLORE, PASSED IN
C.C.NO.20264/2013 VIDE JUDGMENT DATED 12.09.2014 AND
ETC.,

     THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED ON 20.09.2023, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
                                     -3-
                                          CRL.RP No. 1170 of 2015
                                      C/W CRL.RP NO.1171 of 2015


                                ORDER

1. These two criminal revision petitions are filed by the

common petitioner, being aggrieved by the judgment of

conviction and order of sentence dated 12.09.2014 passed in

C.C. No.20263/2013 and C.C.No.20264/2013 by XXI Additional

Chief Metropolitan Magistrate, Bengaluru and its confirmation

judgment and order dated 05.08.2015 passed in

Crl.A.Nos.1105/2014 and 1106/2014 by the LXVIII Additional

City Civil and Sessions Judge, Bengaluru, wherein, the common

petitioner is convicted for the offence punishable under Section

138 of the Negotiable Instruments Act, 1881 (for short 'NI Act').

2. In both cases, the petitioner herein is the common

accused before the Trial Court and the common appellant before

the Appellate Court. The respondent is the common

complainant before the Trial Court and the common respondent

before the Appellate Court. For convenience, the rank of the

parties in the Trial Court will be considered henceforth.

Brief facts of the case are as under:

3. It is the case of the complainant that, the

complainant and the accused were known to each other. It is

stated that the complainant had given 125 grams of gold to the

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

accused to make jewels for his daughter's marriage. It is

further stated that the accused had given duplicate jewels to

the complainant. After noticing that, the jewels that were given

by the accused were duplicates, the complainant approached

the accused and showed the said jewels, and asked the accused

to return the amount. There was a settlement between the

complainant and the accused. As per the said settlement, the

accused had to pay Rs.1,80,000/- to the complainant.

Accordingly, two cheques were issued for a sum of Rs.1,00,000/-

and Rs.80,000/- respectively. When those cheques were

presented for encashment, the cheques were dishonoured with

bank endorsement as 'funds insufficient'. A notice was issued to

that effect and it was served to the accused. The accused

neither replied nor paid the cheque amount. The complainant

filed a complaint before the Jurisdictional Magistrate and sought

punishment to be imposed against the accused. The Trial Court

after appreciating the oral and documentary evidence on record

found the accused guilty of the offence punishable under

Section 138 of the NI Act. Being aggrieved by the same,

appeals were preferred by the accused before the Appellate

Court, the appeals were dismissed and a common order was

passed. Being aggrieved, the accused / petitioner has filed

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

these revision petitions seeking to set aside the concurrent

findings of conviction passed by the Courts below.

4. Heard Sri. Shrivatsa, learned counsel appearing on

behalf of Sri. P.N.Hegde, learned counsel for the petitioner and

Sri. T.M.Vijay Kumar, learned counsel for the respondent, in

both the cases.

5. It is the submission of the learned counsel for the

petitioner that, the concurrent findings recorded by the Courts

below in convicting the petitioner require to be set aside since

the findings are perverse, arbitrary, and erroneous for the

reason that the said findings are opposed to the law and facts.

6. It is further submitted that the defence of the

petitioner was not considered by the Courts below. If the said

defence had been considered, the impugned judgments would

not have been passed by the Courts below. It is further

submitted that the petitioner herein had complained to the IGP

against the respondent, and the IGP, in turn, entrusted the

inquiry to DCP, State Intelligence, Bengaluru. The matter was

settled as per Ex.P10. Accordingly, the petitioner had to pay a

sum of Rs.1,30,000/- to the respondent. However, the

respondent taking advantage of the issuance of signed blank

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

cheques, filled the amounts Rs.1,00,000/- and Rs.80,000/-

respectively and claimed the amount which is against the

documentary evidence. Therefore, the same is liable to be set

aside.

7. The petitioner was consistent in his evidence that as

per the settlement arrived at between the parties in the police

station, the amount of Rs.1,30,000/- and 25 grams of gold was

paid. Instead of returning the cheques, PW.1 being a police

official, misused his powers and claimed an exorbitant amount,

which is not legally recoverable debt. The Trial Court and the

Appellate Court failed to take note of the evidence of DW.1 and

acted on the evidence of PWs.1 and 2 and recorded the

conviction which appears to be erroneous and perverse

therefore, the said conviction requires to be set aside. Making

such submissions, the learned counsel for the petitioner prays

to allow the petitions.

8. Per contra, the learned counsel for the respondent

vehemently justified the concurrent findings of conviction and

submits that Ex.P6 is the complaint given to Chickpet Police

Station, Bengaluru. According to the said complaint, the

petitioner was called to the police station. At the police station,

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

it was admitted that the petitioner had to pay a sum of

Rs.2,70,000/- and 30 grams of gold to the respondent,

thereafter, two cheques were given for a sum of Rs.1,00,000/-

and Rs.80,000/- respectively.

9. It is further submitted that, in the cross-examination of

DW.1, DW.1 has categorically admitted the transaction and also

admitted the statement given before the police as per Ex.P7. If

any controversy in respect of the said admission, the petitioner

should have lodged a complaint before any other forum or

should have requested the concerned Bank to stop payment.

Once the execution of the cheque and the transaction are

admitted, the mandatory presumption has to be raised in favour

of the respondent. Accordingly, the Trial Court and the

Appellate Court rightly appreciated the evidence on record and

recorded the conviction which is appropriate and may not be

required for re-consideration. Making such submissions,

learned counsel for the respondent prays to dismiss the petition.

10. Having heard the rival contentions urged by the

learned counsels for the respective parties and also perused the

judgments of the Courts below, the points which arise for my

consideration are:

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

i) Whether the concurrent findings recorded by

both the Courts below in convicting the common

petitioner in both the cases for the offence under

Section 138 of the NI Act are sustainable?

ii) Whether the petitioner has made grounds to

interfere with the concurrent findings recorded by

both the Courts below for conviction?

11. This Court being a Revisional Court, having regard

to the scope and limits envisaged to appreciate the facts and

law, it is necessary to have a cursory look upon the evidence

and also the law, to ascertain as to whether any illegality or

perversity or error committed by the Courts below in recording

the conviction.

12. Before adverting to the other facts of the case, now,

it is relevant to refer to the scope of the Revisional Court in

appreciating the law. Now it is relevant to refer to the

judgment of the Hon'ble Supreme Court in the case of BIR

SINGH v. MUKESH KUMAR1, para Nos.16 and 17 which read

thus:

(2019) 4 SCC 197

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

"16. It is well settled that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to re-analyse and re-interpret the evidence on record.

17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH, it is a well-established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative."

On careful reading of the above-said dictum of the Hon'ble

Supreme Court, it makes it clear that the revisional jurisdiction

can be exercised only when there is perversity or jurisdictional

error found in any judgment of the Courts below. Further, it is

added that the Revisional Courts are precluded from

re-appreciating or re-analysing the evidence on record.

13. The complainant stated in Ex.P3 - legal notice that,

the accused had agreed that he would repay the amount of

Rs.2,70,000/- with 30 grams of gold in the Chickpet Police

Station pursuant to the complaint lodged by the complainant.

Further, it is stated that, pursuant to the settlement, the

accused had issued two cheques for a sum of Rs.1,00,000/- and

- 10 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

Rs.80,000/- respectively. The said complaint given by the

complainant before the Chickpet Police Station is marked as

Ex.P6 and the statement is marked as Ex.P7.

14. Likewise, the accused had also filed a complaint

before the IGP of State Intelligence, Bengaluru, in the year

2011 against the complainant. The matter was referred to the

Superintendent of Police, Department of Labour and Service,

State Intelligence, Bengaluru. A report was submitted to IGP as

per Ex.P10 and the statement of the accused was recorded by

the said Superintendent of Police as per Ex.P9. In the said

report, it is mentioned that the accused had to pay

Rs.1,30,000/- with 25 grams of gold.

15. On careful perusal of the documents and also the

evidence of PWs.1 and 2, it appears that initially in the year

2011, the matter was settled between the parties and the

accused agreed that, he would return the amount of

Rs.1,30,000/- with 25 grams of gold. In terms of the said

settlement, the accused did not return the amount. Therefore,

the complainant again lodged a complaint before the

Superintendent of Police. Pursuant to the said complaint, the

accused was called to the Police Station and again the matter

- 11 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

was settled for a sum of Rs.2,70,000/- with 30 grams of gold.

As per the said settlement, the accused had issued two

cheques.

16. DW.1 in his cross examination has admitted that, as

per the settlement arrived at between the parties in terms of

Ex.P10, he has paid Rs.1,30,000/- with 25 grams of gold in the

presence of Lingegowda. However, he has not produced any

receipts for having paid the amount and gold. The date of

payment of the amount and gold has not been produced by the

accused. If the said amount was paid pursuant to Ex.P10, he

would have told before the Chickpet Police when he was called

pursuant to Ex.P6. However, he gave his statement as per

Ex.P7 and stated to have issued two cheques. If he wanted to

controvert the liability, he would have lodged a complaint before

the appropriate forum or should have given instructions to the

Bank to stop payment. In his cross-examination, DW.1

admitted that he had to pay Rs.1,30,000/- and 25 grams of

gold in the year 2011 to the complainant. No doubt the

admission made before the police is not admissible in evidence

in terms of Sections 24 and 25 of the Indian Evidence Act.

- 12 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

17. The evidence of DW.1 discloses that he has paid the

amount of Rs.1,30,000/- with 25 grams of gold pursuant to the

compromise as per Ex.P10. However, no documents have been

produced to that effect. Ex.P10 was submitted to IGP, State

Intelligence, by the Superintendent of Police upon enquiry

conducted against the complainant pursuant to the complaint of

the accused. When the complaint of the accused discloses that,

he was due in a sum of Rs.1,30,000/- with 25 grams of gold,

that may be considered as admission.

18. Now it is relevant to refer to the provisions of

Sections 24 and 25 of the Indian Evidence Act, which read thus:

24. Confession caused by inducement, threat, or promise, when irrelevant in criminal proceeding.--A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

25. Confession to police officer not to be proved.-- No confession made to a police officer, shall be proved as against a person accused of any offence."

- 13 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

19. On careful reading of the above-said provision, it is

clear that the statements recorded by the police which are

incriminating against the accused / petitioner are not admissible

in evidence. Admittedly, PW.1 has stated that he has lodged a

complaint against the accused before the Chickpet Police and

the accused was called to the Police Station. In the Police

Station, the matter was settled as per Ex.P7 and the

complainant stated to have received cheques which are marked

as Ex.P1 in CC No.20263/2013 and Ex.P1 in CC No.20264/2013.

Even assuming that the accused admitted in his complaint and

it was reflected in Ex.P10, the accused had to pay Rs.1,30,000/-

with 25 grams of gold. However, the complainant using the

alternative method in recovering the amount, lodged a

complaint before the police, confined the accused and obtained

the statement and cheques which appear to be erroneous and

untenable under law.

20. The law is well settled that, any statement made in

the Police Station which are incriminating against the accused

cannot be considered and used against the accused as it is hit

by Article 20(3) of the Constitution of India, which reads thus:

20. Protection in respect of conviction for offences (1) xxx xxx

- 14 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

(2) xxx xxx (3) No person accused of any offence shall be compelled to be a witness against himself.

21. Now it is relevant to refer the judgment of the

Hon'ble Supreme Court in the case of ASHISH JAIN v.

MAKRAND SINGH & Others2 paragraph No.25 reads thus:

"25. It is noteworthy to reproduce the observations of this Court regarding the relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution in Selvi v. State of Karnataka, (2010) 7 SCC 263:

"102. As mentioned earlier "the right against self incrimination" is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives-- firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the "rule against involuntary confessions" is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the Judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts.

(2019) 3 SCC 770

- 15 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

103. The concerns about the "voluntariness" of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements-- often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, "the right against self incrimination" is a vital safeguard against torture and other "thirddegree methods" that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such "short cuts" will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the "right against self incrimination" is a vital protection to ensure that the prosecution discharges the said onus.

133. We have already referred to the language of Section 161 CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the "theory of confirmation by subsequent facts" i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which "furnish a link in the chain of

- 16 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

evidence" needed for a successful prosecution. This provision reads as follows:

"27. How much of information received from accused may be proved.-- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

134. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda [16 L Ed 2d 694 : 384 US 436 (1965)] warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3).

135. The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad [AIR 1961 SC 1808 : (1961) 2 Cri LJ 856 : (1962) 3 SCR 10]. It was observed in the majority opinion by Jagannadhadas, J., at SCR pp. 3334: (AIR pp. 181516, para 13) "13. ... The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of clause (3) of Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of

- 17 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

Section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion [has] been used in obtaining the information." (emphasis supplied).

On careful reading of the dictum of the Hon'ble Supreme Court,

it makes it clear that if any statement is made before the police

station, involuntarily, certainly it negates the incriminating

circumstances.

22. In the present case, admittedly, the alleged cheques

have been issued in the Chickpet Police Station. Subsequently,

in the evidence of DW.1, he has denied the issuance of the

cheques voluntarily. When the said cheques were not issued

voluntarily and the amount mentioned in the said cheques are

disputed, it cannot be construed that the respondent has

proved that there is legally enforceable debt or liability arises in

respect of those two cheques. It is needless to say that, civil

litigations and quasi civil litigations are not permitted to be

settled before the police stations, pursuant to the Circular

bearing No.CRM-3/105/2018 dated 14.11.2018 issued by the

Office of the Director General and Inspector General of Police,

Karnataka State, Bengaluru.

23. Admittedly, the respondent had filed a complaint

before the Chickpet Police Station as per Ex.P6 and the

- 18 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

petitioner was called to the police station and obtained Ex.P7 -

statement and two cheques. Therefore, it cannot be said that

the petitioner had issued two cheques for the legally

enforceable debt or liability voluntarily. If any settlement is

arrived at between the parties involuntarily, that cannot be

enforceable under law. Similarly, if any settlement takes place

in the police station cannot be construed as the said settlement

has taken place voluntarily, therefore, it cannot be used against

the person who made statement in the custody of the police,

since it is hit by Sections 24 and 25 of the Indian Evidence Act

and also hit by Article 20(3) of the Constitution of India.

24. In view of foregoing reasons, the findings of the

Trial Court and the Appellate Court in recording the conviction

appear to be erroneous and unsustainable. Therefore, the said

concurrent findings in recording the conviction are liable to be

set aside and the interference is justified.

25. In the light of the observations made above, the

points that arose for my consideration are answered as under:-

      Point No.(i)       - "Negative"

      Point No.(ii)      - "Affirmative"

26. Hence, I proceed to pass the following:-

- 19 -

CRL.RP No. 1170 of 2015 C/W CRL.RP NO.1171 of 2015

ORDER

(i) The Criminal Revision Petitions are allowed.

(ii) The judgment of conviction and order of

sentence, dated 12.09.2014 passed in

C.C.No.20263/2013 and C.C.No.20264/2013 by

the XXI Additional Chief Metropolitan Magistrate,

Bangalore and judgment and order dated

05.08.2015 passed in Crl.A. No.1105/2014 and

Crl.A.No.1106/2014 by the LXVIII Additional City

Civil and Sessions Judge, Bengaluru, are set

aside.

(iii) The petitioner is acquitted of the offence under

Section 138 of the NI Act, in both cases.

(iv) Bail bonds executed, if any, stand cancelled.

Sd/-

JUDGE

BSS