Karnataka High Court
Dr Shubhacharitha K vs Smt. Dr.Shobha Divakar on 10 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:14612
CRL.RP No. 1458 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.1458 OF 2019
BETWEEN:
DR. SHUBHACHARITHA K,
W/O SRI. DHARMAVRATHA,
AGED ABOUT 59 YEARS,
NO.440, GUNASHEELA FERTILITY CENTRE,
VISHWA MANAVA DOUBLE ROAD,
A AND B BLOCK, KUVEMPU NAGARA,
MYSURU-570023.
ALSO AT
DR. SHUBHACHARITHA,
TAPOVANA ENCLAVE APT,
VASHISTA BLOCK,
404, INDUSTRIAL SUBURB AREA,
OPPOSITE TO RAJA RAJESHWARI TEMPLE,
MYSURU-570008
Digitally signed
by SHARANYA T ...PETITIONER
Location: HIGH (BY SRI. VAGEESHA N., ADVOCATE)
COURT OF
KARNATAKA
AND:
SMT. DR. SHOBHA DIVAKAR,
D/O SRI DIVAKAR,
AGED ABOUT 53 YEARS,
NO.346, "MARUTHI NILAYA",
1ST FLOOR, 1ST 'D' CROSS,
6TH BLOCK, BANASHANKARI III STAGE,
II PHASE, BENGALURU-560085
REP. BY HER SPA HOLDER,
SRI DIVAKAR,
S/O SRI RANGASWAMY.
-2-
NC: 2024:KHC:14612
CRL.RP No. 1458 of 2019
AGED ABOUT 89 YEARS,
NO.346, "MARUTHI NILAYA",
1ST FLOOR, 1ST 'D' CROSS,
6TH BLOCK, BANASHANKARI III STAGE,
II PHASE, BENGALURU-560085.
...RESPONDENT
(BY SRI. SHRIDHARA K., ADVOCATE.)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
14.11.2019 PASSED BY THE LXVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-68) IN
CRL.A.NO.1217/2018 PRODUCED AT ANNEXURE-A AND ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel appearing for the respective
parties.
2. The factual matrix of the case of the complainant
before the Trial Court is that the accused in order to procure the
land in favour of the complainant, availed an amount of
Rs.24,05,000/- and the major amount was paid in the year 2013
itself and last payment of Rs.5,00,000/- was paid in the year
2014. In total, the complainant made the payment of
Rs.24,05,000/- to the accused. When the accused failed to
procure the land in favour of the complainant, a Cheque was
issued for an amount of Rs.32,50,500/- on 19.04.2015. The
said Cheque was presented and the same was dishonoured with
NC: 2024:KHC:14612
a shara 'payment stopped by drawer' on 18.08.2015. The
notice was given through registered post and the same was duly
served on 22.09.2015 and the accused did not comply with the
demand. Hence, complaint was filed and the Trial Court having
recorded the sworn statement, took cognizance and issued
summons to the accused. The accused was secured and she did
not plead guilty and hence the complainant is examined as
P.W.1 and got marked the documents at Exs.P.1 to 11. The
accused was examined under Section 313 of Cr.P.C. and
thereafter not led any evidence. However, got marked the
documents at Exs.D.1 to 4 i.e., four e-mail copies. The Trial
Court having considered both oral and documentary evidence
placed on record, taken note of the admission on the part of the
accused for issuance of the Cheque and also availing of
Rs.24,05,000/-. The Trial Court in paragraph No.22 taken note
of that even if the complainant had deposited an amount of
Rs.24,05,000/- in FD, then it would double the amount of the
Cheque i.e., Rs.48,10,000/-. However, the Trial Court ordered
to pay an amount of Rs.39,00,000/- convicting the accused for
the offence punishable under Section 138 of the Negotiable
Instruments Act ('NI Act' for short) and in default of payment of
NC: 2024:KHC:14612
the said amount, to undergo simple imprisonment for six
months.
3. Being aggrieved by the said judgment of conviction
and sentence an appeal is filed in R.A.No.1217/2018. The First
Appellate Court having re-assessed both oral and documentary
evidence placed on record and also considering the admission on
the part of the accused, comes to the conclusion that it needs to
be confirmed and hence confirmed the judgment of the Trial
Court. Hence, the present revision petition is filed before this
Court.
4. The learned counsel for the petitioner would
vehemently contend that there is no dispute with regard to the
receipt of Rs.24,05,000/-, but the Cheque was obtained in the
police station for Rs.32,52,500/-. The learned counsel submits
that demand was made to pay 3% interest per month on the
principal amount and hence issued the alleged Cheque.
However, the petitioner never agreed to pay 3% interest per
month on the alleged principal amount and contend that the
petitioner never sent any mail to that effect and the respondent
is guilty of committing perjury. The Trial Court failed to
appreciate this aspect and without appreciating the material on
NC: 2024:KHC:14612
record, committed an error in convicting the petitioner. The
learned counsel would contend that the First Appellate Court
also failed to take note of the nature of transaction taken place
between the complainant and the accused. When the amount
was paid in order to procure the land, the accused was not able
to get the document registered and agreed to repay the amount
and even notice was given to return the money and when the
demand was made to pay 3% interest, could not pay the
amount which was taken. The said fact is also considered by
both the Courts.
5. Per contra, the learned counsel for the respondent
would contend that there is no dispute with regard to the
payment of Rs.24,05,000/- and payments are made in 2013
itself. Only an amount of Rs.5,00,000/- was paid in 2014 and
major amount was paid in 2013 itself and even the amount
awarded by the Trial Court is lesser than bank interest. When
there is no dispute with regard to the transaction and receipt of
the amount, the question of entertaining the revision does not
arise. The very contention of the accused that the Cheque was
obtained in the police station is not substantiated. The fact that
the complaint was given is not in dispute. When the payment
was not made, the complaint was given and both the Courts
NC: 2024:KHC:14612
have not committed any error. The Trial Court and the First
Appellate Court have assigned the reason for awarding an
amount of Rs.39,00,000/- and the First Appellate Court while
confirming the order of the Trial Court discussed the same in its
order and taken note of admission under Sections 17, 18 and 58
of the Indian Evidence Act coupled with primary documentary
evidence relied under Sections 62 to 65 of the Indian Evidence
Act and no grounds are made out to exercise the revisional
jurisdiction.
6. Having heard the learned counsel for the petitioner
and the learned counsel for the respondent and also the
material available on record, the complainant in order to
substantiate her case, examined herself as P.W.1 and got
marked Ex.P.1 Cheque, Ex.P.2 bank endorsement, Ex.P.3, office
copy of the legal notice, Exs.P.4 and 5 postal receipts, Exs.P.6
and 7 postal acknowledgments, Ex.P.8 reply notice dated
06.08.2015, Exs.P.9 and 10 the copy of whatspp message and
Ex.P.11 legal notice dated 07.07.2015. Having perused the
material on record and cross-examination of P.W.1, not disputed
the receipt of Rs.24,05,000/- on different dates. But the only
contention is that the Cheque was obtained for Rs.32,50,500/-
in the police station. On perusal of Ex.P.11, while giving the
NC: 2024:KHC:14612
notice, in paragraph No.1, it is stated that tactfully obtained the
Cheque for Rs.32,50,500/-, but not stated that the said Cheque
was taken in the presence of the police. In paragraph No.3 of
notice, it is stated that made the client to go over to
Vidyaranyapuram Police Station, Mysuru on 23.04.2015 at
around 7.00 p.m. and his client got two calls from the persons
identifying themselves as police officers, compelling his client to
go over to the police station. At police station, humiliated his
client and forced her to write the date on the Cheque as
23.06.2015. Only narration is made that forced to write the
date on the Cheque as 23.06.2015, but not stated in the notice
that the said Cheque was obtained in the presence of the police.
The only allegation is that tactfully obtained the Cheque, leaving
the date column blank, drawn on Indian Overseas Bank,
Jayalaxmipuram Branch, Mysuru in the name of the
complainant. His client was in such a confused state that she
obliged owing to persuasive tactics adopted by the complainant.
Having perused the notice, nothing is stated with regard to
obtaining the said Cheque with coercion or any threat and only
allegation is made that the Cheque date was obtained in the
police station.
NC: 2024:KHC:14612
7. The learned counsel for the petitioner would contend
that interest claimed is 36% per annum. The Trial Court while
convicting the petitioner taken note of the transaction of the
year 2013-14 and in paragraph No.22 also taken note of the
Cheque was given in 2015 and also taken note of that both of
them are doctors by profession and complaint was filed in 2015
even though transaction was taken place in 2013. The Trial
Court also taken note of the fact that the present complainant is
the resident of Britain and traveled from Britain to India to
prosecute the case in hand and thereby, she has lost her
valuable money for traveling expenses as well as valuable time
for render her services as doctor by profession and even if the
complainant had deposited an amount of Rs.24,05,000/- in the
bank as FD, which was paid to the accused in the year 2013,
then it would double the amount of Cheque amount i.e.,
Rs.48,10,000/-. The Trial Court having taken note of this aspect
into consideration and taking note of 6% interest per annum
upon the principal amount of cheque of Rs.32,50,500/- and
interest amount of cheque of Rs.5,85,090/- since from 2015 and
awarding cost of litigation an amount of Rs.64,410/- awarded
Rs.39,00,000/-. The reasons given by the Trial Court is very
NC: 2024:KHC:14612
clear that if the amount was deposited in FD, it would have been
double the amount. However, not awarded double the amount.
8. The First Appellate Court also considered the e-mail
Exs.D.1 to 4 and documents of Exs.P.1 to 11, when there is no
dispute with regard to the issuance of Cheque. The First
Appellate Court also taken note of that under Section 20 of the
NI Act, the drawee of the Cheque is entitled to fill the
instrument for the amount due, that cannot be termed as
against the public policy as enunciated under Section 23 of the
Indian Contract Act and also taken note of in paragraph No.10
the amount which was advanced to the accused. In paragraph
No.13, taken note of 313 statement of the accused and in her
written statement, it is stated that she was never agreed in the
police station that she would repay the amount of
Rs.24,05,000/- together with interest at the rate of 3% per
month. The First Appellate Court also taken note of the material
available on record and discussed the evidence of the
complainant. The accused not led any rebuttal evidence, though
contend that insisted for 3% interest and except cross-
examining P.W.1. There is no dispute with regard to receipt of
the amount, that too for procuring the land and also e-mail
clearly discloses the demand made by the complainant herself
- 10 -
NC: 2024:KHC:14612
that, if no chance of completing the transaction, to repay and
amount. It is important to note that instruction was given to the
bank to stop payment. Having received the money and issued
the Cheque, instruction was given to stop the payment and all
these aspects has been taken note of by the Trial Court and the
First Appellate Court and hence the very contention of the
learned counsel for the petitioner that Cheque was obtained in
the police station cannot be accepted. I have already pointed
out the recital available in document Ex.D.11 and Cheque was
also not obtained at the instance of the police. The only
allegation is that the date was filled in the police station and
hence I do not find any error committed by both the Courts in
appreciating the material. Even with regard to sentencing to
pay the fine amount Rs.39,00,000/- also, it is clear that
transaction was taken place in 2013 and having taken note of
the same, the Trial Court also discussed in paragraph No.22
while awarding an amount of Rs.39,00,000/- as fine and hence I
do not find any ground in respect of imposing fine of
Rs.39,00,000/- and the same is not exorbitant. Even the Court
can impose the fine, double the amount of the Cheque, but has
not imposed. Insofar as fine is concerned, the same
commensurate with the receipt of the money in 2013 to the
- 11 -
NC: 2024:KHC:14612
extent of Rs.24,05,000/-. On that ground also the petitioner is
not entitled for any relief.
9. In view of the discussions made above, I pass the
following:
ORDER
(i) The revision petition is dismissed.
(ii) The petitioner is directed to deposit the amount
within six weeks.
Sd/-
JUDGE
SN,MD
