Karnataka High Court
Smt. Mallika S Shetty vs Sm. Sumana S Rao on 4 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:13836
CRL.RP No. 415 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.415 OF 2020
BETWEEN:
1. SMT. MALLIKA S. SHETTY,
W/O VENKATESH BHAT,
AGED ABOUT 42 YEARS,
R/AT "PRAJWAL NIVASA"
GOKUL COMPOUND,
KUKKUNDOOR POST,
HIRANGANA VILLAGE,
KARKALA TALUK,
UDUPI DISTRICT-576117
...PETITIONER
(BY SRI. NISHIT KUMAR SHETTY, ADVOCATE)
AND:
Digitally signed
by SHARANYA T 1. SMT. SUMANA S. RAO,
Location: HIGH W/O SUDHAKAR RAO,
COURT OF AGED ABOUT 44 YEARS
KARNATAKA
R/AT "GOKUL COMPOUND"
NO.13/48, HIRAGANA VILLAGE,
KARKALA TALUK,
UDUPI DISTRICT-576117.
...RESPONDENT
(BY SRI. K. CHANDRANATH ARIGA, ADVOCATE)
THIS CRL.RP. IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 13.04.2016 MADE IN C.C.NO.703/2014 BY
THE COURT OF II ADDITIONAL CIVIL JUDGE AND JMFC,
KARKALA AND THE JUDGMENT AND ORDER DATED 26.02.2020
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CRL.RP No. 415 of 2020
MADE IN CRL.A.NO.38/2016 BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, UDUPI DISTRICT, UDUPI.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This matter is listed for admission. Heard the learned
counsel for the petitioner and the learned counsel for the
respondent.
2. The factual matrix of the case of the complainant
before the Trial Court is that the accused had borrowed hand
loan of Rs.5,00,000/- from the complainant in the month of
November 2013 and the accused agreed to repay the same in
the end of January 2014. The complainant was not having any
ready cash and she arranged the same by borrowing it from her
husband and sisters and paid the same to the accused. The
accused failed to repay the said loan amount inspite of repeated
request. Later on 27.04.2014 issued a Cheque for Rs.5,00,000/-
in the name of the complainant and when the said Cheque was
presented, the same was dishonoured with an endorsement
"insufficient funds". Hence, legal notice was issued and the
accused did not repay the amount and hence complaint was filed
against the accused. The cognizance was taken and the accused
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appeared and not pleaded guilty and hence the complainant
examined herself as P.W.1 and got marked the documents at
Exs.P.1 to 29. After the closure of the evidence, 313 statement
of the accused was recorded and the accused examined herself
as D.W.1 and got marked the documents at Exs.D.1 to 28. The
Trial Court having considered both oral and documentary
evidence placed on record, taken note of the exhibit 'P' series
and 'D' series and comes to the conclusion that the defence
which was taken by the accused was vague and improbable and
nothing is placed on record to substantiate the defence and
convicted the accused to pay a fine of Rs.5,25,000/- and in case
of default, to undergo simple imprisonment for six months.
3. The said order was challenged before the Appellate
Court in Crl.A.No.38/2016 and the First Appellate Court having
re-assessed the material on record, dismissed the appeal.
Hence, the present revision petition is filed before this Court.
4. The learned counsel for the petitioner would
vehemently contend that both the Courts have committed an
error in appreciating both oral and documentary evidence placed
on record. The learned counsel would contend that the
complainant has misused the Cheque and more over the
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complainant failed to prove the legal enforceable debt against
the accused. The respondent put forth three different versions
which is highly doubtful and she has no income of her own and
paying capacity of the said amount. The learned counsel
submits that an application is filed before the First Appellate
Court to lead additional evidence and the same is rejected. The
very approach of both the Courts is erroneous. The learned
counsel submits that it is the specific case of the petitioner that
she only availed an amount of Rs.1,00,000/- and not
Rs.5,00,000/- and the complainant was not having capacity to
lend the money of Rs.5,00,000/-. The Cheque was misused and
hence separate complaint was filed before the police and the
police have not taken any action and hence private complaint
was filed and thereafter the police have investigated the matter
and filed 'B' report. Hence, it requires interference of this Court
by exercising the revisional powers.
5. Per contra, the learned counsel for the respondent
submits that though the petitioner took the defence while cross-
examining P.W.1 that only an amount of Rs.1,00,000/- was
taken and not Rs.5,00,000/-, the complainant has specifically
pleaded with regard to lending of the amount by borrowing from
her husband and sisters and the same has also been considered
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by the Trial Court and the First Appellate Court in detail. The
Court has also taken note of the presumption under Section 139
of the Negotiable Instruments Act ('NI Act' for short). The
defence has not been probablized by producing cogent evidence,
except producing the documents in exhibit 'D' series and those
documents discloses that the accused approached different
forums and harassed the complainant by filing complaint and 'B'
report is also filed and the same has not been challenged.
6. Having heard the learned counsel for the petitioner
and the learned counsel for the respondent and also considering
the grounds urged in the revision petition, no doubt specific
defence was taken by the accused that she only received an
amount of Rs.1,00,000/- and not Rs.5,00,000/- as contended by
the complainant and in order to substantiate the said
contention, nothing is placed on record before the Trial Court,
except self-serving statement. No doubt, several documents are
got marked before the Trial Court i.e., reply notice, complaint
given to Karkala Town Police, endorsement given by the police,
complaint given to Dy.S.P., private complaint and copy of the 'B'
report, statement of complainant in terms of Ex.D.7, letter
issued by the Mahaveera Cooperative Society, pledging of the
gold in the bank, complaint given to the Women Forum, S.P.,
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DSP and ASP, postal acknowledgment, postal receipt and RTC
extracts. The Trial Court while considering the evidence of both
the parties, in detail discussed about the transaction and specific
pleading made by the complainant. In the complaint, the
complainant has stated that she has borrowed loan from her
husband and her sisters and Cheque is also dated 27.02.2014
and it is the specific case of the complainant that the amount
was borrowed in the month of November 2013.
7. The First Appellate Court on re-appreciation of both
oral and documentary evidence placed on record, in detail
discussed the contentions urged by the accused. It is not in
dispute that the Cheque was issued by the accused and it bears
the signature of the accused. The First Appellate Court also
taken note of the 'B' report filed by the police in respect of the
complaint given by the petitioner and also discussed with regard
to financial capacity framing point Nos.1 and 3. In paragraph
No.14, the First Appellate Court discussed about the
complainant availing the amount from her sister and sister's
husband and an amount of Rs.1,50,000/- gathered from the
funds obtained from selling the properties of her husband. All
these materials were discussed by the First Appellate Court and
having considered the presumption under Section 118 of the NI
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Act, the presumption is also rebuttable and evidence of the
complainant has not been rebutted by probablising the case of
the accused. In paragraph No.22, the First Appellate Court
taken note of the fact that P.W.1 categorically deposed that the
accused was known to her for more than ten years and she had
represented that she would sell her property and return the loan
amount. It is also elicited that earlier the accused had taken
loan of Rs.25,000, Rs.50,000/- and Rs.1,00,000/- etc. and she
had returned the money. The accused also admitted about
availing of loan earlier from the complainant.
8. The First Appellate Court also considered the
documents of exhibit 'P' and 'D' series in paragraph No.23 and
detail order has been passed considering the evidence of D.W.1
in the cross-examination, who pleads ignorance about the
various business and other activities of the complainant and her
husband. She also pleads ignorance about the financial position
of brother-in-law of the complainant, her sister and sister's
husband. The accused also admitted with regard to
C.C.No.149/2009 and the same was also in respect of surety to
the loan transaction of one Sudhakar and the matter was
compromised. Both the Courts have taken note of the
contention of the accused and the documents which have been
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produced. The records discloses that the revision petitioner has
approached different forums and ultimately not succeeded in
filing the private complaint and making the allegation of
borrowing only an amount of Rs.1,00,000/- and misuse of the
Cheque and ultimately 'B' report is filed and the same is not
disputed and subsequent to the filing of 'B' report also, the same
has not been challenged. When such materials are considered
by the Trial Court and the First Appellate Court, I do not find
any error in convicting the accused for the offence punishable
under Section 138 of the NI Act. The conviction is based on
both oral and documentary evidence placed on record and the
accused has not probablised her case and an attempt made by
her to probablize her case by filing a private complaint also was
unsuccessful and the same defence is also taken before this
Court. When such being the case, I do not find any ground to
exercise the revisional jurisdiction, unless any perversity is
found in the findings of the Trial Court and the First Appellate
Court. Hence, no grounds to admit the petition and consider the
same.
9. In view of the discussions made above, I pass the
following:
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ORDER
The criminal revision petition is dismissed.
Sd/-
JUDGE
MD
