Karnataka High Court
Mr C Nage Gowda vs Mr K T Jagadeesh on 5 April, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 494 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.494 OF 2022
BETWEEN:
1. MR. C. NAGE GOWDA,
S/O CHELUVE GOWDA,
AGED ABOUT 61 YEARS,
R/AT JANATA BADAVANE,
KERALAPURA VILLAGE,
RAMANATHAPURA HOBLI,
ARAKALAGUDU TALUK,
HASSAN DISTRICT-573136.
...PETITIONER
(BY SRI MANJUNATH B.R., ADVOCATE)
AND:
1. MR. K.T. JAGADEESH,
Digitally signed
by SHARANYA T S/O LATE THIMMEGOWDA,
Location: HIGH AGED ABOUT 61 YEARS,
COURT OF NO.30, 6TH CROSS, PIPELINE,
KARNATAKA
CHOLURAPALYA, VIJAYANAGAR,
BANGALORE-560023.
...RESPONDENT
(BY SRI MAHESH R., ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION
AND SENTENCE DATED 05.11.2020 PASSED BY THE XXI
ADDL.C.M.M., BENGALURU IN C.C.NO.5059/2016 AND ALSO
SET ASIDE THE JUDGMENT IN CRL.A.NO.822/2020 DATED
24.02.2022 ON THE FILE OF LXVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-68) AND CONSEQUENTLY
ACQUIT THE PETITIONER.
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CRL.RP No. 494 of 2022
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the
learned counsel for the respondent.
2. The present revision petition is a second round of
petition by the petitioner herein, who has faced the prosecution
in respect of the offence punishable under Section 138 of the
Negotiable Instruments Act, ('NI Act' for short).
3. The case of the complainant before the Trial Court is
that the complainant and accused No.1 are childhood friends
and accused No.2 is the wife of accused No.1. During the
month of May 2013, the accused persons approached the
complainant and requested the wife of the complainant/Smt.
L.Geetha to join her hands in the proposed business of accused
Nos.1 and 2 and convinced them to pay Rs.3,00,000/- to begin
the said business. Accordingly, as per the request of accused
Nos.1 and 2, the complainant transferred an amount of
Rs.2,00,000/- to the account maintained by accused No.2 at
Canara Bank, Keralapura Branch. Further on 03.01.2014, the
complainant has transferred Rs.20,000/- to the SB account of
accused No.2. Further, the complainant stated that the accused
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persons have promised the complainant that the said amount
will be returned when they get income from the business
transaction and the complainant believed the version of the
accused persons. During the first week of October 2014, once
again the accused persons obtained Rs.80,000/- from the
complainant. After few months, the accused persons
approached the complainant and informed that, license could
not be obtained in the name of partners i.e., in the name of
Smt. Geetha, wife of the complainant. Therefore, during April
2014, accused Nos.1 and 2 have promised to return the entire
sum of Rs.3,00,000/- to the complainant along with interest for
a period of seven months from April 2015 to October 2015 as
they have agreed to repay the entire amount during the last
week of October 2015. Accordingly, the accused persons issued
the Cheque dated 29.10.2015 for a sum of Rs.3,00,000/-.
Thereafter, as per the request of the accused, the complainant
has presented the above said Cheque on 06.11.2015 and the
same was returned with an endorsement "funds insufficient".
4. Thereafter, the complainant approached the accused
and informed about the dishonour of the said Cheque and
demanded the accused to pay the amount covered under said
Cheque, but the accused did not return back the amount.
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Hence, the complainant issued demand notice to the accused
persons on 18.11.2015 calling upon them to pay the amount
covered under the Cheque within the stipulated period and
inspite of notice was served to the accused persons, they did not
come forward to pay the amount and even not given any reply
to the demand notice received by them. Hence, the
complainant filed the complaint against the accused and the
Court took the cognizance and the accused was secured before
the Trial Court. In the meanwhile, accused No.2 had
approached this Court by filing Crl.P.No.8472/2016 and this
Court quashed the proceedings against accused No.2 vide order
dated 18.07.2018. The accused No.1 did not plead guilty and
in view of quashing of the proceedings against accused No.2,
proceeded only against accused No.1. The complainant
examined himself as P.W.1 and got marked the documents at
Exs.P.1 to 10. After completion of the evidence of P.W.1, the
accused was subjected to recording of 313 statement with
regard to incriminating circumstances and thereafter the
accused did not choose to lead any evidence and the accused
was convicted for the offence punishable under Section 138 of
the NI Act.
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5. The Trial Court having considered the material on
record, initially directed to pay a fine of Rs.3,05,000/-. The said
order was not challenged when the accused was brought before
the Trial Court on warrant and he appeared and filed an
application under Section 424 of Cr.P.C. and filed an affidavit
and paid Rs.10,000/- and agreed to pay Rs.90,000/- on the next
date and the said amount was not paid. In the meanwhile, he
approached the Appellate Court and the Appellate Court
remanded the matter and the said matter was challenged before
this Court in Crl.R.P.No.1455/2019. This Court while disposing
of the revision petition without notice to the respondent comes
to the conclusion that no good grounds to entertain the criminal
revision petition. However, comes to the conclusion that the
contentions which have been urged before this Court can be
urged before the Trial Court and final adjudication can be done
therein itself between the parties. In paragraph No.6 made an
observation that criminal revision petition is disposed of with a
direction that the Trial Court has to expedite the matter
expeditiously by keeping in view the undertaking given by the
respondent/accused within an outer limit of four months from
the date of receipt of copy of this order. This Court also taken
note of earlier undertaking given by the accused when he was
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brought before the Court for subjecting him for sentence. It is
important to note that when the matter was remanded to the
Trial Court, P.W.1 was also subjected to further cross-
examination after the remand. Thereafter, the witness was
subjected to cross-examination on 03.01.2020, wherein it is
elicited that in terms of Ex.P.10, the amount was transferred
from the joint account of the complainant and his wife and he
says that his salary has been credited to the joint account of
Ex.P.10. It is elicited that he cannot tell the date of payment of
Rs.80,000/-, but he claims that the amount was paid by way of
RTGS. It is elicited that he does not remember the date and
also not obtained any receipt. It is suggested that he has not
paid an amount of Rs.80,000/- and hence no receipt was given
and the said suggestion was denied. When the question was put
to him, whether he has declared the same in his assets and
liabilities, P.W.1 says that he had collected the amount from his
wife and given the amount and no receipt is given for his wife
also. Both of them have availed the amount as loan and not
obtained any agreement and also amount was not given for any
interest.
6. The witness was further cross-examined on
06.01.2020 and he says that when the accused requested him
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to transfer the amount to the account of his wife, he had
transferred the amount to the account of his wife. With regard
to contents of the documents, a suggestion was made that the
same is not in the handwriting of the accused and the witness
says that the accused only gave Ex.P.1. It is suggested that in
Ex.P.10, there is no reference of transferring the amount to the
account of his wife and the said suggestion was denied. It is
suggested that the accused never demanded any loan and he
has not given any loan also and the same was denied. It is
suggested that Ex.P.10 is the joint account of himself and his
wife and the same is admitted. The accused not led any
evidence after remand also.
7. The Trial Court having considered the material on
record, earlier affidavit filed by the accused and also when there
is no any rebuttal evidence except the cross-examination of
P.W.1, convicted the accused and ordered to pay an amount of
Rs.3,95,000/- and after deducting the amount which was paid
earlier ordered to pay an amount of Rs.3,24,000/- and in
default of fine amount, accused shall undergo simple
imprisonment for one year. The same has been challenged in
Crl.A.No.822/2020 and the First Appellate Court having
considered the grounds urged in the appeal, in paragraph No.20
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taken note of earlier conviction and sentence and in compliance
of the earlier order discussed in paragraph No.20 and also in
paragraph No.22 reference was made with regard to the
affidavit filed by the appellant/accused before the Trial Court.
In the affidavit, the accused has undertaken to pay or deposit
the fine amount and made part payment of the fine amount.
The Appellate Court also taken note of the judgment of the Apex
Court in the case of NEW OKHLA INDUSTRIAL
DEVELOPMENT AUTHORITY v. RAVINDRA KUMAR
SINGHVI reported in 2022 live Law SC 184, with regard to
the solemn statement made on oath and the same is not a mere
sheets of paper and accepted the affidavit and confirmed the
judgment of the Trial Court. Being aggrieved by the said
judgment, the present revision petition is filed before this court.
8. The main contention of the learned counsel for the
petitioner is that the payment is not made to the revision
petitioner, but it is made in favour of the wife and hence Section
138 of NI Act cannot be invoked. The learned counsel contend
that with regard to payment of additional amount of Rs.80,000,
the complainant has given different versions that he has made
payment by way of RTGS and in another breath he says that he
had availed the amount from his wife and hence the same is not
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disclosed in the assets and liabilities. The learned counsel
contend that no receipt in favour of the complainant as well as
his wife even though the payments are made allegedly by the
wife of the complainant. Both the Courts failed to take note of
the said fact into consideration. The learned counsel contend
that in the earlier Crl.R.P.No.1455/2019, an observation is made
in paragraph No.5 with regard to the undertaking given by the
accused and final adjudication can be done therein itself
between the parties. The learned counsel would contend that
when there is no payment in favour of the petitioner, the
question of invoking Section 138 of NI Act does not arise. The
learned counsel would contend that there is no dispute with
regard to issuance of the Cheque as per Ex.P.1. The learned
counsel would contend that earlier affidavit is filed when he was
brought before the Court and the said circumstances also to be
taken note of and both the Courts have not taken note of the
same and hence it requires interference of this court.
9. Per contra, the learned counsel for the
respondent/complainant would contend that this is a second
round of litigation with regard to bouncing of cheque. The fact
that both of them are childhood friends is not in dispute, the fact
that an amount of 2,20,000/- was transferred to the account of
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the wife of the accused, is also not in dispute. The only dispute
is with regard to payment of Rs.80,000/- and no receipt is
produced. The fact that both are family friends and childhood
friends has not been disputed and the said payment was made
without insisting for him to execute any document. The learned
counsel would contend that if an amount of Rs.80,000/- has not
been received, what made him to give a Cheque for
Rs.3,00,000/-, no explanation. The accused ought to have
entered the witness box and explained why he gave the cheque
for Rs.3,00,000/- and if he has received an amount of
Rs.2,20,000/-, ought to have given cheque for Rs.2,20,000/-
and P.W.1 admitted that the amount was given not for any
interest and no such explanation is given. Even after the
remand also, the accused did not choose to enter the witness
box and explain the circumstances. Now, he cannot contend
that he has filed an affidavit before the Trial Court when he was
brought before the Court. The learned counsel contend that he
gave an undertaking before the Trial Court that he is going to
make the payment and the undertaking was given to deposit an
amount of Rs.90,000/- on the very next date on 08.03.2019 and
he was produced before the Court on 07.03.2019 and against
his affidavit only he did not comply with the order, instead of he
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approached the Appellate Court and no explanation with regard
to the undertaking given by him. If really he is not having any
liability, he would not have filed the affidavit before the Court
and ought to have rebutted the evidence of the complainant and
not rebutted the same.
10. Having heard the learned counsel for the petitioner
and the learned counsel for the respondent and also having
considered the material on record, it is not in dispute that earlier
also the case was disposed of and during that time the accused
was not cross-examined. When he was brought before the
Court, he filed an application under Section 424 of Cr.P.C. and
also filed an affidavit before the Trial Court and the same is not
disputed. But, the only contention is that he has filed an
affidavit when he was brought before the Court and after giving
an undertaking before the Trial Court when he got released on
payment of Rs.10,000/- , he gave an undertaking to pay an
amount of Rs.90,000/- on the very next day and instead of
making the payment, he filed an appeal. There is no dispute
with regard to the fact that the matter was remanded back to
the Trial Court and the same was also challenged before this
Court in Crl.R.P.No..1455/2019 and this Court disposed of the
same on 20.12.2019 coming to the conclusion that no grounds
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to entertain the criminal revision petition. It is observed in
paragraph No.5 that if the matter is remitted back, then under
such circumstance, the same contention can be taken up before
the Trial Court by bringing notice about the undertaking given
by the accused and final adjudication can be done therein itself
between the parties. In paragraph No.6, made an observation
that the Trial Court has to expedite the matter expeditiously by
keeping in view the undertaking given by the
respondent/accused within an outer limit of four months from
the date of receipt of copy of the order.
11. Having perused the revision order, it is very clear
that an opportunity is given to the accused/revision petitioner to
putforth his case. With regard to the undertaking, it is the
contention of the respondent/complainant that a direction was
given that the Trial Court has to expedite the matter
expeditiously by keeping in view the undertaking. When such
undertaking was given and inspite of remand also, the accused
did not enter the witness box. It is important to note that the
cheque was admitted and though the accused contend that the
amount was transferred in favour of his wife account and not
disputes the fact that the amount was transferred to his wife
account and also not disputes that he gave the cheque for
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Rs.3,00,000/-. There is a force in the contention of the learned
counsel for the respondent that if the accused really had
received an amount of Rs.2,20,000/-, which was transferred to
the account of the wife of the accused, what made him to give
the Cheque for Rs.3,00,000/- ought to have been explained by
the accused by entering into the witness box. When the
complainant produced the document Ex.P.1 and proved the case
that there was a transaction and apart from that, payment is
also to the tune of Rs.2,20,000/- by transferring the amount to
the account of his wife, the burden shifts on the accused to
prove what made him to issue the Cheque for an amount of
Rs.3,00,000/-. It is important to note that when notice was
given to the accused, he did not give any reply and he kept
silent.
12. The Apex Court in the judgment in the case of
RANGAPPA v. MOHAN reported in AIR 2010 SC 1898, held
that when notice is given, if no reply, the Court has to take note
of the said fact into consideration. The judgment of the Apex
Court in the case of Rangappa (supra) was also considered by
the Trial Court. The Appellate Court also taken note of the
solemn affidavit filed by the accused before the Trial Court when
he was brought before the Court and if really he was not liable
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to pay any amount, the same ought to have been explained by
entering into the witness box. No doubt in the cross-
examination of P.W.1, answer has been elicited from the mouth
of P.W.1 with regard to payment is concerned. In one breath he
says that he has transferred the amount by way of RTGS and
the fact that Rs.2,20,000/- is transferred to the account of wife
of the accused is not in dispute. With regard to the payment of
Rs.80,000/- is concerned, when a question was put to him,
whether he had declared the same in his assets and liabilities
since the complainant is a government servant, he has given
explanation that he had borrowed that amount from his wife and
he gave that money. When such explanation is given by the
complainant, the same ought to have been rebutted by the
accused and nothing has been done, except contending that the
amount was transferred in favour of the account of his wife and
now he cannot contend that no amount was transferred to the
account of his wife and he is not liable. When he has given the
cheque and admitted the issuance of Cheque and when the
notice was given, no explanation was given by him and no reply
was given. Only during the course of cross-examination, that
too afterthought when the matter was remanded, cross-
examined the P.W.1 and he did not choose to enter the witness
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box and raised probable defence before the Trial Court and
when probable case has not been made out by the accused, now
he cannot contend that he is not liable and issuance of cheque is
not towards legally recoverable debt.
13. The Appellate Court while considering the matter,
referred the judgment of the Apex Court in the case of New
Okhla Industrial Development Authority (supra), wherein it
is held that the affidavits are not mere sheets of paper, but
solemn statement of oath made before a person authorized to
administer an oath or to accept affirmation, it is binding on the
person, who solemn statement given as oath. Hence, I do not
find any error committed by the Trial Court and the First
Appellate Court. Both the Courts considered the material on
record and the revision petitioner cannot blow hot and cold, in
one breath undertaking to make the payment and after the said
undertaking also, he rushed to the First Appellate Court and
brought an order of remand and even after the remand also not
adduced any rebuttal evidence and the answers elicited from the
mouth of P.W.1 not takes away the case of the complainant.
Hence, I do not find any ground to exercise the revisional
jurisdiction. The Court while exercising the revisional
jurisdiction has to take note of whether the orders passed by
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both the Courts suffers from any legality or its correctness and if
no such infirmity in the order passed by the Trial Court and the
First Appellate Court, the question of exercising revisional
jurisdiction does not arise. The scope of revision is very limited
and hence, I do not find any grounds to interfere with the
findings of the Trial Court and the First Appellate Court.
14. In view of the discussions made above, I pass the
following:
ORDER
The revision petition is dismissed.
Sd/-
JUDGE
MD
