Karnataka High Court
Shri R K Mahadevaswamy vs Shri Mahadeva on 19 April, 2024
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CRL.RP No. 886 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL REVISION PETITION NO. 886 OF 2017
BETWEEN:
SHRI R.K.MAHADEVASWAMY
S/O. SRI.G.KUMARAIAH,
AGED ABOUT 55 YEARS,
R/AT 9TH CROSS,
KARNATAKA BAR ROAD,
MANDYA CITY - 571 401.
...PETITIONER
(BY SHRI. G.B. NANDISH GOWDA, ADVOCATE
FOR SHRI. R.B. SADASIVAPPA, ADVOCATE)
AND
SHRI MAHADEVA S/O SHRI SONNAIAH,
AGED ABOUT 49 YERS,
R/AT D.NO.370, 24TH CROSS,
V.V.NAGARA, KALLAHALLI EXTENSION,
MANDYA - 571 401.
Digitally signed
by ANNAPURNA
G ...RESPONDENT
Location: HIGH (BY SHRI. PRASANNA KUMAR P. DAROJI, ADVOCATE)
COURT OF
KARNATAKA
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 11.07.2017
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MANDYA IN CRL.A.NO.20/2015 BY CONFIRMING THE JUDGMENT AND
ORDER DATED 25.02.2015 PASSED BY THE J.M.F.C., MANDYA IN
C.C.NO.185/2013 AND CONSEQUENT ACQUIT THE PETITIONER FOR
THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 16TH APRIL, 2024 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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CRL.RP No. 886 of 2017
ORDER
The appellant/accused in Crl.A.No.20 of 2015
preferred this revision petition under Sections 397 and 401
of the Code of Criminal Procedure (for short, Cr.P.C.)
challenging the impugned order dated 11.07.2017 passed
by the II Additional District and Sessions Judge, Mandya in
Crl.A.No.20 of 2015.
2. I refer to the parties as per their rank before
the Trial Court.
3. Brief facts of the case of the parties are that the
accused had obtained loan of Rs.2,50,000/- from the
complainant/respondent and to discharge of the said
debt, he issued cheque (Ex.P1) dated 29.06.2007 payable
to the respondent/complainant. The complainant had
presented the cheque through his Banker for encashment.
The said cheque was dishonoured on the ground of
"insufficient funds" in the account of the accused. The
complainant had issued notice through his Advocate dated
11.07.2007, calling upon the accused to repay the amount
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of cheque. The accused did not repay the amount and on
the contrary, he replied to the said notice with the false
contentions.
4. The complainant had filed a petition before the
Trial Court alleging that the accused had committed an
offence punishable under Section 138 of the Negotiable
Instruments Act (for short, N.I.Act). The Additional Civil
Judge and JMFC, Mandya (for short, 'Trial Court') after
receiving the complaint took cognizance of the case and
recorded the sworn statement of the complainant. On
going through the complaint and documents placed on
record, the Trial Court took cognizance of the offences and
issued process to accused. Accused had appeared before
trial Court. The trial Court had recorded the plea of the
accused and the accused had pleaded not guilty.
5. The complainant to prove his case examined
himself as PW-1 and got marked Exs.P1 to 6 and closed
his evidence. The learned Trial Judge examined the
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accused under Section 313 of Cr.P.C. The accused had
examined DWs-1 to 3 and got marked Exs.D1 to D6.
6. The learned Trial Judge after hearing the
arguments of both the parties and on appreciating the
evidence available on record, held that accused had
committed an offence punishable under Section 138 of the
N.I.Act and convicted the accused for the offence
punishable under Section 138 of the N.I.Act and sentenced
him to pay a fine of Rs.2,55,000/- and in default of
payment of fine, he shall undergo simple imprisonment for
one year by the impugned judgment dated 25.02.2015.
7. The accused preferred an appeal before the
Court of the II Additional District and Sessions Judge at
Mandya (for short, Appellate Court) in Crl.A.No.20 of
2015. The learned Appellate Judge heard the arguments
of both the sides and after re-appreciation of the evidence
available on record dismissed the appeal by the impugned
judgment dated 11.07.2017. Correctness and legality of
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said judgment is challenged in the present revision petition
by the accused.
8. I have heard the learned Advocate for the
revision petition. No arguments were advanced by the
learned advocate for the respondent.
9. The following question arises for my
determination:
Whether the learned Appellate Judge is
justified in dismissing the appeal and
confirming the judgment passed in C.C.No.185
of 2013 dated 25.02.2015, convicting the
accused under Section 138 of the N.I. Act and
does it call for interference.
10. The learned counsel for the revision petitioner
has vehemently contended that accused had borrowed a
sum of rupees one Lakh from the complainant and at that
time, as per the demand of the complainant, accused had
executed registered agreement of sale of his house in the
name of the complainant and also handed over signed
blank cheque, promissory note and blank paper containing
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signature of the accused for security purpose. The
accused had been paying interest on the loan amount
obtained from the complainant, till 2007. During 2007,
due to some financial constraints, accused was unable to
pay the interest on the loan amount. The complainant
misusing the blank cheque given to him as security,
presented the said cheque by filling the amount and filed a
false case. In the cross-examination of PW-1, these facts
were suggested.
11. He further submits that the accused got himself
examined as DW-1 and also examined Scribe and attesting
witness to Ex.P.1. Both of them have stated that
agreement of sale was executed as a security for the loan
obtained by the accused from the complainant. They have
also stated that the cheque was given as a security
towards the loan obtained by the accused. The
complainant had to proved before the Trial Court that he
had sufficient source of income to pay the loan of
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Rs.2,50,000/- to the accused. However, he has not
proved the same.
12. The learned counsel for the petitioner has
further submitted that according to Ex.D1(A), an amount
of Rs.3,50,000/- was due to the accused from the
complainant. When such is the case, obtaining of a hand
loan of Rs.2,50,000/- by the accused may not arise.
These facts clearly probablise the defence of the accused
that he had issued a blank cheque as a security to the loan
obtained by him in the year 2005. The Trial Court as well
as the First Appellate Court did not consider these facts
and there are no discussions of these facts in the
judgments of both the Courts below. Therefore, they came
to an erroneous conclusion. The findings of the Trial Court
as well as the First Appellate Court are illegal and hence,
prayed for interference in the said findings.
13. From the material available on record, the Trial
Court as well as the First Appellate Court held that Ex.P1
was belonging to the account of the accused and he gave
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it in favour of the complainant. Exs.P2 and 3 shows that
the said cheque was presented to the Bank and it was
dishonoured on the ground of "insufficient funds". Ex.P4 is
notice sent to the accused and it was served on the
accused. These facts are not disputed.
14. It is the case of the accused that the said
cheque was given to the complainant at the time of
obtaining of the loan and also while executing Ex.D1. It
was a blank cheque with the signature of the accused and
it was misused by the complainant. It is pertinent to note
that Ex.D1 copy of agreement of sale (On this document,
it is marked as Ex.D1 and reply notice given by the
accused is also marked as Ex.D1. Therefore, it appears in
the annexure of the judgment, agreement of sale is noted
as Ex.D1(a)). It is dated 11.07.2005 and it is a registered
document; date of the execution of the said document is
not in dispute. As per the allegation of the complainant as
well as evidence of PW-1, that accused met with a vehicle
accident and he approached the complainant on
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11.03.2007 requesting him give loan of Rs.2,50,000/- for
treatment of injuries sustained in the accident. He told the
accused to meet him on 18.07.2007 to collect the money
and accordingly, the accused approached him on
18.07.2007 and collected the said amount of
Rs.2,50,000/-.
15. There is about two years gap between Ex.D1(a)
and Ex.P1. In the cross-examination, PW-1 elaborated the
facts. DW-1/accused in his cross-examination admits that
"in the year 2007, he met with an accident and at that
time, he required money. Therefore, he took loan of Rs.1
Lakh from the complainant and he also agreed to pay
interest at the rate of 1% and had been paying the
interest." There by DW-1 admits taking of loan of
Rs.1,00,000/- during the year 2007. Therefore, loan of
Rs.1,00,000/- received by the accused at the time of
execution of Ex.D1(a) is different from the loan obtained
by him during the year 2007 and Ex-P.1 was not given
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during 2005. The defence of accused is not consistent and
probable.
16. In the thorough cross-examination of PW-1, he
has given proper explanation to the questions asked by
the accused. He has denied suggestions of the accused
that at the time of execution of the agreement of sale, he
had obtained blank signed cheque as a security. As
observed by the learned Trial Judge, the said defence is
not probable. Accused contends that he had executed a
registered agreement of sale of property as security
towards loan obtained during 2005. Then what was
necessary to hand over blank signed cheque and
promissory note as well as blank signed white paper as
additional security documents to the complainant?
Moreover, the accused did not secure any
acknowledgement for receiving of blank signed cheque,
promissory note and blank signed white paper. Being a
Government servant, it is difficult to believe that without
any acknowledgement, he would give the said documents
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when he had executed registered agreement of sale.
Hence not probable.
17. At the cost of repetition, according to the case
of the accused, agreement of sale was executed in the
year 2005 and he has given the said cheque on the same
day and according to his cross-examination, he obtained a
loan of Rs.1 Lakh during the year 2007 and at that time,
he had issued Ex.P1. His defence is not consistent. It was
not his case that he did issue two cheque to complainant.
Hence, the Court below appreciating the evidence on
record, rightly didn't accept the defence of the accused. It
is held by the Courts below that accused had obtained loan
of Rs.2,50,000/- from the complainant and failed to repay
the same and in discharge of the said debt, he issued a
cheque that was dishonoured for want of insufficient
funds. Thereafter, the accused has committed an offence
punishable under Section 138 of the N.I. Act. I do not find
any illegality in the said finding.
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18. This is a revision petition filed under Section
397 of Cr.P.C. It is trite law that there is no need to re-
appreciate the evidence in the Revision Petition. The
Revision Court has limited jurisdiction and it has to
consider whether the impugned order passed by the
Courts below suffers from any illegality, absurdity or
contrary to the provisions of law. Even re-considering the
evidence on record, there are no grounds to hold that the
Court below had committed any error or illegality in the
findings given by it. Therefore, the revision petition is
devoid of merits.
19. For the aforesaid discussion, the question raised
is answered in the 'negative' and I pass the following:
ORDER
i) The Revision Petition is dismissed.
ii) The impugned judgment passed by
the learned II Additional District and Sessions
Judge, Mandya in Crl.A.No.20 of 2015 dated
11.07.2017 confirming the judgment passed by
the learned Judicial Magistrate First Class,
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Mandya in C.C.No.185 of 2013 dated
25.02.2015 is confirmed.
iii) Forty Five (45) days' time is granted
from this day to the revision petitioner to pay
fine amount before the Trial Court, failing which,
he shall surrender before the Trial Court to
undergo default sentence of imprisonment of
one year.
iv) The Registry is directed to send back
the Trial Court Records along with a copy of this
order to the Trial Court.
Sd/-
JUDGE
DH
