Karnataka High Court
Vanajakshidevi vs Mallinath A S on 4 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 721 of 2022
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. 721 OF 2022
BETWEEN:
1. VANAJAKSHIDEVI
W/O VASANTHKUAMR
AGED ABOUT 54 YEARS
WORKING AS KANNADA TEACHER
IN PRIMARY SCHOOL URDU
MALEBENNUR,
HARIHAR TALUK
DAVANAGERE-577530.
...PETITIONER
[BY SRI MAHESH R. UPPIN, ADVOCATE]
AND:
Digitally signed 1. MALLINATH A.S.
by SHARANYA T S/O SHIVARUDRAPPA
Location: HIGH AGED ABOUT 55 YEARS
COURT OF
KARNATAKA BUSINESS MAN
R/O. BANUVALLI VILALGE
HARIHAR TALUK
DAVANAGERE-577516
SINCE DEAD BY LRS
1(a) SMT. VANI
W/O LATE MALLINATH
AGED ABOUT 37 YEARS
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CRL.RP No. 721 of 2022
1(b) DHANUSHREE
D/O LATE MALLINATH
AGED ABOUT 15 YEARS
1(c) BHUVANESHWARI
D/O LATE MALLINATH
AGED ABOUT 13 YEARS
RESPONDENS 1(b) AND 1(c) ARE MINORS
REPRESENTED BY THEIR MOTHER AND
NATURAL GUARDIAN
ALL ARE R/O. BHANUVALLI VILLAGE
HARIHARA TALUK
DAVANAGERE DISTRICT-577516.
(AMENDED VIDE COURT ORDER DATED 03.08.2023)
...RESPONDENTS
[BY SMT.SHRUTHI S.P., ADVOCATE FOR
SRI VINAYA KEERTHY M., ADVOCATE FOR R1(a) TO R1(c)]
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
29.04.2022 PASSED IN CRL.A.NO.26/2020 ON THE FILE OF I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE
AND THE JUDGMENT AND ORDER DATED 06.03.2020 PASSED
BY THE LEARNED I ADDITIONAL CIVIL AND J.M.F.C.,
HARIHARA IN C.C.NO.182/2006 AND ALLOW THIS CRL.RP.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 721 of 2022
ORDER
1. This matter is listed for admission. Heard The
learned counsel for revision petitioner and also the counsel
appearing for revision petitioner.
2. The factual matrix of case of
complainant/respondent before the Trial Court that
complainant and accused both are having acquaintance
and the accused was in need of money and borrowed a
hand loan of Rs.4,00,000/- on 05.12.2005 and ready to
repay the same. On the same day, the accused has issued
a post dated Cheque for the said amount. When the
Cheque was presented on 06.02.2006, the same was
returned with an endorsement 'Insufficient Fund' and
notice was given, the same was served on the accused
and did not repay the amount. Hence, a private complaint
is filed and the same is registered as criminal case after
Trial Court taken cognizance and thereafter the accused
was secured. The accused has appeared before the Trial
Court through an advocate and not pleaded guilty. Hence,
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complainant himself has examined as PW1 and got marked
Ex.P1 to Ex.P9. On the other hand, the accused has also
examined herself as DW1 and also examined her husband
as DW2 and got marked the document of earlier legal
notice issued in terms of the Ex.D1.
3. The Trial Court having considered the case of
the complainant as well as the defense of the accused, in
detail discussed the material on record and convicted the
accused and imposed a fine amount of Rs.4,05,000/- and
in default of payment, the accused shall undergo
imprisonment for a period of four months and ordered to
pay the amount within six months. In case of default of
payment of fine amount, the accused shall undergo
additional sentence for a period of 2 months. Being
aggrieved by the said judgment and conviction and
sentence, an appeal is filed in Crl.A.No.26/2020. The First
Appellate Court having considered the grounds urged in
the appeal as well as the arguments, formulated the point
whether the complainant proves beyond reasonable doubt
that on 05.12.2005, the accused towards discharge of
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debt has issued Cheque for Rs.4,00,000/- in favor of the
complainant and when the same was presented it was
returned with an endorsement 'Insufficient Funds' and to
prove the case to invoke Section 138 of Negotiable
Instruments Act and whether conviction order suffers any
error or illegality. The First Appellate Court having
considered the contentions which have been raised before
Trial Court answered the point for consideration as
affirmative and the First Appellate Court comes to the
conclusion that it does not requires any interference.
4. The counsel for the revision petitioner would
vehemently contend that the specific defense was taken
that there was a transaction between one Advocate
Basavarja Onkari and husband of the accused and
husband has taken three Cheques from the accused and
the said Cheque has been misused by Basavaraj Onkari
and got it filed the present complaint through the
complainant. Both the Courts committed an error in
considering the defense and the counsel also would
vehemently contend that the approach of both the Trial
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Court as well as First Appellate Court is erroneous and
failed to take note of the defense which has been raised
during the course of trial and also with regard to the
capacity to lend the money which is in question. The
complainant ought to have placed sufficient material to
show his source of income i.e., bank account or any other
material to show that he had sufficient means to pay the
amount in question to the accused, the same also not
been considered.
5. The counsel appearing for the
respondent/complainant would contend that though
defense was taken that six Cheques are collected from the
husband of the accused and not taken any steps except
mere such defense, nothing is placed on record for having
taken such steps except relying upon the document of
Ex.D1- the notice issued by the accused. The fact that the
complainant and accused both are having acquaintance
has not been denied and also clearly given the reasons by
the Trial Court as well as the First Appellate Court with
regard to not collecting any documents in view of both of
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them having acquaintance with each other and also taken
note of the answer elicited from the mouth of DW2 who is
the husband and for what purpose he gave three Cheques
to him and also the three Cheques of his wife has not been
explained, the same is also considered by both the Courts.
Apart from that, DW2 also categorically admits that he
was having transaction with the said Advocate Basavaraj
Onkari and availed the loan. The contention also that both
of them are working in agriculture department and also
the accused is working as a Teacher in Government
School. There was no need to avail loan and issued the
said Cheque, if that is the case, the very admission on the
part of husband of accused is very clear that he was
having transaction earlier with the said Basavaraja Onkari
also considered by the Trial Court. The main defense is
that both of them are working in the government
department. No occasion has been arised to them to avail
the loan, then what made him to give six Cheques as
contended in the defense has not been explained and the
said fact also taken note of by both the Courts.
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6. Having heard the revision petitioner's counsel
and also the counsel appearing for the respondent and it is
not in dispute that both the accused as well as the
husband of the accused are working in the government
department as agriculture officer as well as a school
Teacher. It is the specific contention of the accused that
her husband is having transaction with Advocate Basavaraj
Onkari and also denies such transaction but only
contention that the husband got Cheques from her, the
said contention has not been explained and only examined
her husband and her evidence is also that there was no
need of availing any loan since both of them are working
in government office, then what was the need of making
transaction with the advocate Basavaraja Onkari by
husband of the accused is also not explained. Apart from
that when her husband has been examined as DW2 before
the Trial Court also and he has not given any explanation
for having transaction with Basavaraj Onkari and for what
purpose the Cheques were given that too 3 Cheques of
him and 3 Cheques of his wife and also when he was cross
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examined, in cross-examination, he categorically admits
that he was having transaction with Basavarj Onkari. He
categorically admits that he availed loan from him on
several occasions, but only contention that they have
given the Cheques in favour of Basavaraj Onkari, not in
favour of the complainant and the said Basavaraj Onkari
has not been examined before the Trial Court on behalf of
him and also taken the contention that material alterations
of the Cheques, same is also not been proved. Even the
Trial Court as well as the appellate Court in detail
discussed the evidence, particularly in paragraph No.41
the Appellate Court held that the DW2 has not explained
for what purpose they have issued those Cheques and also
considered the evidence of DW2 and he categorically
admitted that he had availed loan in several occasions with
the said Basavaraj Onkari. Hence, it is clear that he was
having transaction with Basavaraj Onkari also and his
contention that the accused and her husband, both of
them are working and their contention that both of them
are not having any circumstances to avail any loan. This
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defense is also falsified in view of the admissions given by
the DW2 in the cross-examination. The DW2 who is the
husband of the accused always transacting with the said
Basavaraj Onkari and the same is also narrated by the
accused herself in her evidence. The Trial Court as well as
First Appellate Court have taken note of all these aspects
particularly in paragraph No.44 extracted the admissions
given by the PW2 and also the accused not disputed the
signature available on Ex.P1. Only the defense is that, the
same has been misused by the said Basavaraj Onkari and
got it filed the complaint through this complainant. In the
cross-examination of PW2 also nothing is elicited with
regard to the defense which has been taken by the
accused and all these aspects have been taken note of by
the Trial Court as well as First Appellate Court. The First
Appellate Court in detail discussed the same and
elaborated judgment is also passed applying its judicious
mind. Both the Courts have applied their judicious mind
and also except relying upon the document of Ex.D1-
notice of the year 2001, nothing is placed on record by
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both the accused as well as her husband. When such being
the case, question of invoking revisional jurisdiction does
not arise and this Court also cannot appreciate the
evidence available on record while exercising the revisional
powers. If orders are not suffers from any legality and its
correctness, question of invoking the revisional jurisdiction
does not arise.
7. The counsel in support of his contention
contend that an affidavit is filed before the Trial Court by
DW1-accused. There is a bar under Section 145 of
Negotiable Instruments Act. This Court in
Crl.A.No.1699/2016 remanded the matter to consider the
matter afresh with a direction to provide an opportunity to
the accused to adduce his evidence in accordance with
law. The said contention also cannot be accepted. No
doubt under Section 145 of Negotiable Instruments Act
amendment is also made in the year 2002 by Act No.55 of
2002 which came into effect on 06.02.2003 wherein
permission is given to the complainant to file an affidavit.
The evidence of the complainant is given by him on
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affidavit and may subject to all these exception been led in
any evidence, Trial or other proceedings of the said Court.
The Court has to take note of Section 145(2) of the said
Act and also it is very clear that the Court may, if it thinks
fit and shall, the application of the prosecution or the
accused, summon and examine any person giving
evidence on affidavit as to the facts contained and when
sub-clause (2) is very clear and in the case on hand also
the revision petitioner herself voluntarily filed an affidavit
before the Court and subjected for cross-examination.
Now, revision petitioner cannot contend that the affidavit
evidence cannot be considered and the revision petitioner
cannot blow hot and cold and in one breath submitting
herself for evidence by filing an affidavit and subjecting for
cross-examination by the complainant and cannot contend
that on technicality the affidavit of the accused cannot be
accepted. The said contention also cannot be accepted in
view of proviso under Section 145(2) of NI Act. On the
ground of technicality also the revision petitioner not gets
any benefit before this Court by exercising revision
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jurisdiction. Hence, I do not find any merit in the revision
petition.
8. In view of the discussions made above, I pass
the following:
ORDER
The Revision Petition is dismissed.
Sd/-
JUDGE
RHS
