Karnataka High Court
Dinesh Poojary vs Mr. Sadashiva Prabhu on 7 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 336 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.336 OF 2017
BETWEEN:
DINESH POOJARY
AGED 37 YEARS,
SON OF SHIVAPPA POOJARY,
RESIDING AT NOOJIDADY HOSAMANE
PUNJALKATTE POST,
BLETHANGADY TALUK-575003
...PETITIONER
(BY SRI P P HEGDE, SR. COUNSEL FOR
SRI GOURAV, ADVOCATE)
AND:
Digitally signed
by SHARANYA T MR. SADASHIVA PRABHU
Location: HIGH AGED ABOUT 60 YEARS,
COURT OF
KARNATAKA R/AT SONANDOOR VILLAGE,
& POST, BELTHANGADY TALUK-575003
...RESPONDENT
(BY SRI ANIKETH KANIKELLAYA, ADVOCATE FOR
SRI SACHIN B S, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 06.08.2015 PASSED BY
THE PRL. CIVIL JUDGE AND J.M.F.C., BELTHANGADY IN
C.C.NO.193/2008 AND ETC.
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CRL.RP No. 336 of 2017
THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. Heard the learned counsel appearing for the
respective parties.
2. This revision petition is filed against the
conviction order passed under Section 138 of N.I. Act
against the revision petitioner with regard to the issuance
of Cheques at Ex.P1 to P4 which have been bounced with
the reason 'account closed'. The legal notice was issued
by the complainant but reply was not given by the revision
petitioner and hence, the complaint was filed against the
revision petitioner. In order to substantiate the case of the
complainant, the complainant himself was examined as
PW1 and also examined one witness as PW2 and got
marked the documents at Ex.P1 to P13. On the other hand
revision petitioner/accused examined himself as DW1 and
his brother examined as DW2 and also examined two more
witnesses as DW3 and DW4 and got marked the
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documents at Ex.D1 to D4. The Trial Court having
considered the material available on record comes to the
conclusion that in view of the admission on the part of
DW1 for issuance of cheques and also considering both
oral and documentary evidence placed on record,
convicted the petitioner/accused. Being aggrieved by the
said judgment, an appeal was preferred by the revision
petitioner before the First Appellate Court and the First
Appellate Court also taking into note of the documents at
Ex.P13 as well as Ex.P1 to P4 which have been admitted
by DW1 in his evidence and also taken note that there is
no reference of Ex.P13 and comes to the conclusion that
DW1 and DW2 throw the burden on each other in their
effort to thwart the liability.
3. The Trial Court having considered the material
available on record in view of admission on the part of
PW1 for issuance of Cheque and also considering both oral
and documentary evidence available on record convicted
the accused. Being aggrieved by the said judgment an
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appeal is filed before the appellate Court. The appellate
Court taking into note of document Ex.P13 as well as
Ex.P1 to Ex.P4 which have been admitted by the PW1 in
the evidence and also taking into note of evidence of PW1
and PW2 who are the brothers. There is no reference to
Ex.P13 and comes to the conclusion that evidence of DW1
and DW2 throw the burden on each other in their effort to
thwart the liability. On appreciation, comes to the
conclusion that when there was a transaction between
them, the same is admitted, issuance of Cheque is also
the business of Arecanut is admitted and confirmed the
judgment of the Trial Court. Being aggrieved by conviction
and confirmation, the present appeal is filed.
4. The counsel appearing for the revision
petitioner brought to notice of this Court that the material
available on record clearly discloses that it is only a
financial transaction with the brother of the accused, not
with the accused. The counsel also would vehemently
contend that Cheques are presented twice, even after the
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Cheque was returned with an endorsement ' account
closed '.
5. The counsel in support of his argument he
relied upon the judgment reported in ILR 2007 KAR
2706 in case of Sri.H.Nanjundappa Since deceased
by his legal representatives his daughter and
another V/s H.Hanumantharayappa and brought to
notice of this Court paragraph No.4 of the judgment once
the Cheque is returned with an endorsement closure of
account, there is no need to present the same, the same is
only with an intention to avoid the limitation.
6. The counsel also brought to notice of this Court
Ex.P13 which was confronted to DW1 in the cross-
examination, it discloses that the transaction was taken
place in the year 2006, not in 2007 as contended by PW1
and PW2. The counsel also would submits PW2 who says
payment was made twice i.e., firstly an amount of
Rs.1,00,000/- and subsequently an amount of Rs.65,000/,
but the averment made in the complaint and also the
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evidence is contrary that payment was made at a time.
The counsel also vehemently contend that the claim made
by the respondent is not legally recoverable debt and
material on record particularly contradictions with regard
to the transactions itself is concerned, the same is
doubtful. Both the Courts ought not to have invoked the
presumption as well as not considered the rebuttal
evidence available on record. Hence, it requires
interference.
7. Per Contra, the counsel appearing for the
respondent would vehemently contend that the very
issuance of Cheque is not disputed. The DW1 categorically
admits that signature on the Ex.P1 to Ex.P4 are belongs to
him and also he is having the account in that bank. The
counsel also would submits that evidence of DW1 and
DW2 is very clear that both of them are doing business of
Arecanut. Though DW1 denies that he was not doing any
business but in the cross-examination, DW2 categorically
admits that both of them are doing Arecanut business. The
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counsel also would submits that DW1 and DW2 have not
denied the document of Ex.P13. The DW1 himself has
admitted the very execution of document Ex.P13, the
same also substantiate with regard to the transaction
between the parties. Both the Trial Court as well as the
First Appellate Court having taken note of the material
available on record, particularly the business of Arecanut
and also though says that he used to give Cheques in
favour of his brother through his business, now cannot
contend that Cheques are not given in respect of legally
recoverable debt. Hence, the very contention of revision
petitioner's counsel cannot be accepted.
8. The counsel in support of his argument he
relied upon the judgment of this Court reported in (2019)
SCC Online KAR 3557 in case of Shivanand
Gurupadayya Hiremath V/s Anit and also counsel
brought to notice of this Court paragraph No.4 wherein
also similar circumstances of closure of account and
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presentation of the same once again and also even finding
in paragraph Nos.11 and 12.
9. The counsel also relies upon the judgment of
the Apex Court reported in (1999) 2 SCC 452 in case of
State of Kerala V/s Puttumana Illath Jathavedan
Namboodiri wherein discussed with regard to the scope
of revisional jurisdiction. The Apex Court held that
revisional Court cannot be equated with appellate
jurisdiction, re-appreciation of evidence is not permissible
unless it has resulted in gross miscarriage of justice, on
facts High Court exceeded its jurisdiction in interfering
with the conviction by re-appreciating the evidence and by
not examining several items of evidence relied upon by
the Sessions Judge in confirming the conviction.
10. In reply to the arguments of the respondent's
counsel, the revision petitioner's counsel submits that
when the document was confronted to the DW1, in the
cross-examination of DW1 and question of cross
examining the witnesses PW1 and PW2 with regard to the
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document of Ex.P13 does not arise. The counsel also
would vehemently contend that in a case of Shivanand
Gurupadaiah Hirematt V/s Anil, factual aspect is
different. This Court has to take note of in paragraph
No.12 specific pleading was made that accused has
requested him to present the Cheque not in this case. In
this case, the counsel would contend that the very first
presentation was suppressed and filed the complaint.
11. Having heard the petitioner's counsel and also
the counsel appearing for the respondent, whether this
Court can exercise the revisional powers and whether the
order impugned suffers from any legality and its
correctness. Having heard the counsel for respective
parties and no dispute with regard to the scope of the
revision is concerned and Supreme Court also in the
judgment referred supra by the respondent's counsel held
that revisional jurisdiction of High Court cannot be equated
with appellate jurisdiction and while re-appreciation of
evidence is not permissible unless it has resulted in gross
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miscarriage of justice. In view of the principles laid down
in the judgment and it is settled law that the revisional
scope is very limited and whether the order impugned
suffers from any legality and its correctness has to be
looked into. In the case on hand, when the complainant
makes claim based on Ex.P1 to Ex.P4 i.e., Cheques which
have been issued by the accused and also when the same
was presented, the same were returned as account closed
and hence legal notice was issued. Admittedly, no reply
was given to the notice issued by the complainant and
only defense was taken in the cross-examination of PW1
that only transaction between the brother of the accused
and complaiant. No doubt it is emerged in the evidence
also that the brother of the DW1 is doing Arecanut
business. Though the DW1 contend that he was not doing
any business but in the cross-examination of DW2, who is
the brother, he has been examined before the Trial Court
and he categorically admits that his brother also doing
business along with him i.e., Arecanut business. When
such being the case and when such admission is given by
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the DW2 and admittedly Cheques are issued by the DW1
and the same are in favour of the complainant. Hence, it is
clear that though DW1 and DW2 are doing business and in
that business connection only the transaction was taken
place. Hence, the very contention of the revision
petitioner's counsel that financial transaction is only with
the brother cannot be accepted. However, other
contention of revision petitioner's counsel that Cheque was
presented twice and this Court in the judgment referred
supra also made an observation that any number of times
Cheque can be presented. The very contention of the
counsel appearing for the revision petitioner relying upon
the judgment reported in ILR 2007 KAR 2706 wherein
this Court also observed with regard to the return of
Cheque as account closed and successive presentation and
an observation is made that once the Cheque is returned
with an endorsement closure of the account and there is
no need to present the same if the account is not in
existence. There is no possibility of having a fruitful result
by successive presentation unlike in a case of
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'Insufficiency of Funds'. No doubt this Court held that in
the case of closure of account, no need to present the
Cheque again. In the case on hand, when the Cheque was
presented once again in the month of July, the same was
returned with an endorsement that account closed. The
counsel for revision petitioner rightly pointed out with
regard to the earlier presentation is concerned, not stated
in the complaint, but in the cross-examination, it is
categorically admitted that first time it was presented, at
that time also it was returned with an endorsement
account closed, subsequently again the Cheque was
presented and returned with an endorsement account
closed. But, when the notice was issued to the petitioner,
he has not given any reply to the said notice, inspite of,
the same is admitted. Other defenses have taken only
during the course of cross-examination of witnesses.
12. It is also important to note that in the cross-
examination of PW1, he categorically says that amount
was obtained for the business of Arecanut in the month of
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January-2007 and subject matter of Cheques are issued,
the same is stated in the chief evidence itself. No doubt
PW1 also admits that he does the business with the
brother of the complainant. He used to sell Arecanut four
times. He also categorically says in his evidence that his
brother is in need of money and hence he came to his
house and he gave the money to his brother and also he
further says that he does the business along with him. It is
also his evidence that he gave the money prior to four
days of issuance of Cheque and he came and took the
money in his house and also he gave four cheques on the
same day. He collected the Cheques in the office of Gopala
Poojari and hence I do not find any discrepancy with
regard to the payment is concerned. He categorically says
that he came to his house and demanded money for his
brother and he gave the money in his house. No doubt it is
stated that the amount was given in the month of
January-2007, but the counsel appearing for the revision
petitioner contend that PW2 says that first time an amount
of Rs.1,00,000/- was given and second time an amount of
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Rs.65,000/- was given, but the evidence of PW1 is very
clear that before issuance of the Cheque, he gave the
money four days earlier to that. Nothing is elicited from
the mouth of PW1 with regard to the said payment and
also in the further cross-examination answer elicited with
regard to the presentation of Cheque twice i.e., on
03.05.2007 and 17.05.2007. In the cross-examination of
PW2 also, he speaks with regard to the payment made on
different dates. In the cross-examination of PW2 he says
that he is not aware of the date on which he gave an
amount of Rs.1,00,000/-. He categorically says that
except the said two transactions, he is not aware of any
other transactions between the accused and PW1. On the
other hand, the PW1 though says that he is having
acquaintance with complainant and he categorically says
that transaction was taken place between his brother and
complainant that is also for a period from 2002 to 2008.
He categorically says that in 2007 he was very much
present when Arecanut transaction was taken place and
also he categorically says that his brother has given the
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receipt in connection with Areca transaction. He
categorically says that his brother has given the Cheque to
the complainant and those Cheques are given as security
in favour of the complainant by his brother. At that time,
Mahabala Poojari and Yashodara Poojari both were
present, this evidence is in the chief evidence of DW1. He
categorically admits that transaction and issuance of
Cheque and handed over the Cheque and also contend
that amount was repaid, but Cheques were not returned.
But, no any actions were taken. When such admission was
given for having transactions between his brother and also
the complainant. He categorically admitted that the
complainant made several transaction in the said shop.
Hence, it is very clear that the said shop belongs to both
of them and not exclusively belongs to his brother. But,
only he says that the said shop is standing in the name of
his brother, that answer is elicited in the cross-
examination of PW1. But, he claims that he does not
participated in the said transaction and all payment and
everything is taken care of by his brother. He categorically
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says that he gave 15 Cheques to his brother and he
cannot say to whom his brother has given Cheques. When
such admission is given that he gave the Cheques to his
brother and his brother has utilized the Cheques for his
business, now he cannot contend that there are no
transactions between him. It is important to note that
even in the cross-examination also categorically admits
that he is none other than the brother of PW1, admits that
in the four Cheques they have mentioned the amount and
given the Cheque in favor of the complainant. He says that
he gave the Cheque, but his brother was not their and he
was in his house. He also categorically admits that those
Cheques belongs to his brother only. In the further cross-
examination he categorically admits that his brother is also
doing Arecanut business along with him. When such
admission is given, it is very clear that both of them are
doing Arecanut business and Cheques are given and these
are the admissions elicited from the mouth of DW1 and
DW2 takes away the case of the revision petitioner. The
very contention that the Cheques are not given in favour
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of the complainant for any legal debt cannot be accepted.
The transaction is admitted and issuance of Cheques is
admitted and also both of them are doing Arecanut
business together is also admitted. Now, cannot contend
that only financial transaction between his brother and the
complainant. No doubt the Cheques are presented twice
and endorsement was given as ' account closed ' and the
said endorsement was issued subsequently in the month
of July and complaint is filed within the limitation period.
The very contention that the 2nd presentation of Cheque is
made only in order to avoid the limitation cannot be
accepted. I have already pointed out that Apex Court
categorically held that any number of times, Cheque can
be presented and last presentation is the cause of action
for filing of complaint. Hence, mere closure of account at
presentation of Cheque 2nd time cannot be a ground when
there is a clear ample evidence available before the Court
admitting the transaction even considering the document
at Ex.P13 also and the same is of the year 2006 and the
transaction between the parties is categorically admitted,
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the same is also evident from the evidence of DW1 and
DW2. Both of them have admitted the transaction and
issuance of Cheque and also the transaction of Arecanut
and both of them are doing Arecanut business. The DW1
also categorically says that the shop also stands in the
name of his brother, but when the transaction was made,
both of them are doing business together and also
evidence of PW1 is clear that the accused only came to his
house and requested money for Arecanut business for his
brother. When such material available on record, I do not
find any error committed by the Trial Court and also First
Appellate Court in appreciation of evidence available on
record. There is no any miscarriage of justice in the case
on hand for appreciation of evidence available on record
and also the judgment of the Apex Court is very clear that
if any miscarriage of justice i.e., ignorance of any evidence
available on record, if any finding is given contrary to the
material available on record and only on that
circumstances, the Court can exercise the revisional
jurisdiction. Both the orders are not suffers from any
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legality and its correctness. Hence, I do not find any force
in the contention of the revision petitioner's counsel to
reverse the finding of the Trial Court as well as the First
Appellate Court by exercising the revisional jurisdiction.
13. In view of the discussions made above, I pass
the following:
ORDER
The Criminal Revision Petition is dismissed.
Sd/-
JUDGE
RHS
