Karnataka High Court
Smt T Siddamma vs Sri K S Chandresh on 4 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 540 of 2017
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.540 OF 2017
BETWEEN:
SMT. T SIDDAMMA
W/O LATE PARAMESHWARAPPA,
AGED ABOUT 62 YEARS,
R/AT ALLAMPUR VILLAGE,
KAIMARA POST,
CHIKKAMAGALURU
TALUK AND DISTRICT
...PETITIONER
(BY SRI M K BHASKARAIAH, ADVOCATE)
AND:
Digitally signed
SRI K S CHANDRESH
by SHARANYA T S/O SHIVANANDA MURTHY,
Location: HIGH AGED ABOUT 43 YEARS,
COURT OF
KARNATAKA R/AT K R PETE VILAGE & POST
CHIKKAMAGALURU
TALUK AND DISTRICT
...RESPONDENT
(BY SRI ANIL KUMAR D, ADVOCATE [ABSENT])
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT, CONVICTION
AND SENTENCE ORDER DATED 04.04.2017 PASSED BY
THE II ADDL. SESSIONS JUDGE, CHIKKAMAGALURU IN
CRL.A.NO.90/2015 AND ETC.
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CRL.RP No. 540 of 2017
THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel appearing for the
petitioner and the counsel for the respondent is absent.
2. The factual matrix of the case of the
complainant before the Trial Court that the accused
approached the complainant for the purpose of financial
assistance. Accordingly, the complainant paid an amount
of Rs.1,38,000/- to the accused as loan and subsequently
for repayment of said loan amount, accused was issued a
cheque dated 04.05.2011 and when the said cheque was
presented, the same was returned with an endorsement
'funds insufficient'. Hence, the complainant issued a legal
notice to the accused and the same was served but no
reply was given. It is also stated that the endorsements
were given by the bank as 'drawer signature differs' and
'payment stopped by the drawer'. Hence, there were three
endorsements are given i.e., 'funds insufficient', 'drawer
signature differs' and 'payment stopped by the drawer'.
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Thus, the complaint was filed and the Court taken the
cognizance and thereafter, secured the accused and
accused did not plead guilty and prays for trial. Hence, the
complainant examined himself as PW1 and got marked the
documents at Ex.P1 to P10. On the other hand,
accused/respondent statement was recorded under
Section 313 of Cr.P.C and he also stepped into the
witness box and adduced evidence examining herself as
DW1 and also examined one witness as DW2 and got
marked the document at Ex.D1 to D3. The Trial Court
having considering both oral and documentary evidence
placed on record convicted the accused for the offence
punishable under Section 138 N.I. Act in coming to the
conclusion that when notice was issued, no reply was
given and also not explained the circumstances under
which Ex.P1 went to the custody of the complainant and
ordered to pay an amount of Rs.1,51,800/- and also
sentenced to pay fine amount of Rs.1,000/- and also made
it clear that in default of payment of fine amount, the
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accused shall undergo for simple imprisonment for one
year.
3. Being aggrieved by the judgment of conviction
of the Trial Court, an appeal was filed in Crl.A.No.90/2015
and urged the grounds that accused never borrowed an
amount of Rs.1,38,000/- for any financial assistance and
the cheque of the accused was stolen and complainant had
taken the said cheque and when he was went to her house
and denied the very issuance of subject matter of cheque.
The First Appellate Court also having considered the
grounds urged in the appeal, formulated the following
points:
1. Whether the appellant proves that there is no
legally enforceable debt to issue Cheque for
Rs.1,38,000/- in favour of the respondent?
2. Whether the appellant further proves that she
has issued stop payment order on
16.11.2009?
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3. Whether the further proves that judgment of
conviction and sentence passed by the Trial
Court is illegal and liable to be set aside?
4. The First Appellate Court having reassessed
both oral and documentary evidence placed on record
including the evidence of the complainant and the
accused, not accepted the contention of the accused and
dismissed the appeal. Hence, the present revision petition
is filed before this Court.
5. The counsel for the revision petitioner would
vehemently contend that both the Courts have committed
an error in passing the judgment of conviction and
sentence against the petitioner. The counsel would
vehemently contend that when the notice was issued, the
revision petitioner went and enquired with the complainant
and the complainant assured that he is not going to
precipitate the matter. The counsel also would
vehemently contend that whereas the alleged cheque
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containing the name of the petitioner signed in Kannada
but the petitioner will not sign in Kannada and the said
fact also substantiated by examining bank authorities.
The counsel further contend that both the Courts have not
considered the said fact into consideration and erroneously
invoked Section 138 of N.I. Act. Section 138 N.I. Act not
applicable to the facts of the case on hand. The counsel
also would vehemently contend that in 2009 itself
intimated to the bank for stop payment including the
subject matter of the cheque number. Hence, it requires
interference.
6. Heard the learned counsel appearing for the
revision petitioner and also perused the material available
on record. Taking into note of the defence set out during
the course of cross-examination of DW1, wherein it is
deposed that chque was stolen and the complaint was also
given and also cross examined PW1 taking into note of the
endorsements issued by the bank as 'funds insufficient',
'drawer's signature differs' and 'payment stopped by the
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drawer'. No doubt, the revision petitioner also examined
the Bank Manager as DW2. But the fact that the cheque
belongs to the accused is not in dispute. But only his
contention is that cheque contains the signature in
Kannada mentioning the name of the revision petitioner
and she never signs any document in Kannada. No doubt,
when the contention was taken that the cheque does not
bears her signature, it is the burden on the complainant to
prove the same. When the accused took the contention
that signature not belongs to her but not disputes that the
cheque belongs to her bank account. Then, burden shifts
on the accused to send the document for handwriting
expert to get the opinion and same has not been done.
7. It is also important to note that the contention
of the petitioner counsel that not only that the subject
matter of cheque was stolen, the other cheques were also
stolen. Admittedly, the accused has not taken any legal
action against the complainant to recover the cheque even
though she has taken the contention that she has not
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issued the subject matter of the chque in question to the
complainant. The Trial Court as well as the First Appellate
Court draws the presumption under Section 118 as well as
Section 139 of N.I. Act in coming to the conclusion that
burden is on the accused to rebut the said presumption.
The Trial Court also in paragraph 22 held that when legal
notice was issued, the accused being a teacher, when
specific allegation is made in the notice itself that she has
borrowed the loan and issued the cheque and not given
any reply and only explanation is given that the accused
went and informed the complainant orally and on enquiry,
the complainant given the assurance stating that he is not
going to precipitate the matter. But the accused also not
explained how the cheque was gone into the custody of
the complainant and same is also discussed in paragraph
22 of the judgment of the Trial Court. The Trial Court also
in paragraph 25 made an observation that it is the duty of
the accused to prove how Ex.P1 came into the custody of
the complainant. The theory of signing and keeping the
subject matter of the cheque along with other cheques has
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not been explained by the accused. Apart from that
explanation given by the accused that the same was stolen
but the fact that she being a teacher knows all the
consequences when the cheque was issued and the same
was dishonoured. The said fact is also considered by the
Trial Court. The theory of Cheques were misplaced and
complaint was given and intimated to the bank in the year
2009 itself and examining the Bank Manager with regard
to the signature found in Ex.P1, will not be a ground to
disbelieve the case of the complainant. DW2 also
specifically stated that accused has given stop payment
order on 16.11.2009 and accused also produced the copy
of the letters to the bank whereas the accused has given
instruction for stop payment. If that is the case, why the
bank has issued as endorsement as 'funds insufficient' and
DW2 deposed that subsequently on the instructions by the
accused, stop payment was given. No further explanation
and the same is also creates the doubt that when the
accused has given instructions for stop payment on
16.11.2009 and same is also discussed in paragraph 12 of
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the judgment of the First Appellate Court and the accused
has to give explanation under what circumstances, the
cheque had been to the custody of the complainant. The
theory of misplacing of cheque that too along with four
cheques is not substantiated in her evidence. The evidence
of the complainant has to be rebutted placing probable
evidence before the Court. When there is no probable
evidence before the Court, the question of accepting the
theory of accused does not arise. Both the Courts have
applied its judicious mind on the documents as well as the
answer elicited from the mouth of the respective witnesses
and given reasoning for conviction and also drawn the
presumption in favour of the complainant. Unless the
presumption is rebutted, the defence of the accused
cannot be accepted. Hence, I do not find any error
committed by the Trial Court as well as the First Appellate
Court in the impugned orders. Unless legality and
correctness of the finding of both the Courts is perverse
and found that the same is not correct, the question of
interference with the revision jurisdiction does not arise.
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8. In view of the discussions made above, I pass
the following:
ORDER
The revision petition is dismissed.
Sd/-
JUDGE
SN
