Karnataka High Court
Mrs.Dharchana Saravanan vs Mr S K Suresh on 5 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 1389 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.1389 OF 2021
BETWEEN:
MRS. DHARCHANA SARAVANAN
W/O. SARAVANAN,
AGED ABOUT 40 YEARS,
PROPRIETOR OF CREATIVE PRO, R/AT NO.15,
4TH CROSS, 11TH MAIN, MARUTHI NAGAR,
BENGALURU-560075
AND ALSO AT CREATIVE PRO NO.30/1,
GROUND FLOOR,
IST CROSS, ST MAIN ROAD,
MICHEAL PALYA, INDIRANAGAR,
BANGALORE-38
...PETITIONER
(BY SRI. JAYAPRAKASH SHETTY, ADVOCATE)
AND:
Digitally signed
by DEVIKA M
Location: HIGH MR. S.K. SURESH
COURT OF S/O. P. SENDHIL KUMAR,
KARNATAKA
R/AT NO.64,
3RD CROSS,
JAI JAWAN NAGAR,
SUBANNAPALYA,
BANASWADI POST,
BENGALURU-560043
...RESPONDENT
(BY SRI.VEERESH M.UPPIN, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
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NC: 2025:KHC:5530
CRL.RP No. 1389 of 2021
27.10.2021 PASSED BY THE LXXII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT MAYO HALL (CCH-73) BENGALURU
CITY IN CRL.A.NO.25059/2021 THEREBY CONFIRMING THE
JUDGMENT AND ORDER DATED 18.03.2021 PASSED BY THE
XXXIV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
MAYO HALL BENGALURU IN C.C.NO.50796/2019 BY ALLOWING
THE ABOVE REVISION PETITION.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
Heard the learned counsel for the petitioner/accused and
also counsel appearing for the respondent/Complainant.
2. This matter is listed for admission. The records of
Trial Court and also Appellate Court were secured by this Court.
3. The present petition is filed against concurrent
findings of Trial Court and Appellate Court whereby the accused
was convicted for the offence punishable under Section 138 of
Negotiable Instruments Act, (for short 'N.I. Act') and sentenced
to pay a fine of Rs.7,05,000/- and in default to undergo simple
imprisonment for a period of three months. The case of the
complainant is that the petitioner had availed hand loan of
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Rs.6,00,000/- and executed Exs.P1/hand loan agreement and
P2/cheque and as per the instruction of accused, the
complainant presented the cheque which came to be
dishonoured with an endorsement 'funds insufficient'. Hence,
the complainant got issued legal notice calling upon the
accused to pay the amount and notice was duly served upon
the petitioner. The accused neither paid the cheque amount nor
repaid the amount, hence a criminal case was registered
against the petitioner.
4. The defence of the petitioner before this Court is
that there was a transaction between himself and one
Mr.Suryan and no such cheque/Ex.P2 was given to the
complainant at any point of time and also counsel appearing for
the petitioner vehemently contends that in the cross-
examination, PW.1 categorically admitted that the payment of
Rs.6,00,000/- is not shown in the income tax returns. Learned
counsel also vehemently contends that during the course of
cross-examination of PW.1 he has stated that at the time of
paying the amount, Mr. Suryan was present and he was not
examined by the respondent and there is no whisper about him
either in the complaint or in the evidence of PW.1 did not refer
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to two witnesses in Ex.P1 which is the loan agreement for
having given the amount to the petitioner. The Ex.P1 -
agreement was executed in the name of Sabari Associates
which is no way concerned to the petitioner and the courts
below failed to consider this aspect hence, both the courts have
committed an error.
5. Per contra, the learned counsel for the
respondent/complainant would contend that the petitioner not
disputes the very execution of documents Exs.P1 and P2. PW.1
in the cross-examination deposed that he has been working in
a company having monthly salary of Rs.19,000/-. One
Mr.Suryan is partner along with complainant. It is also the
specific case of complainant that amount was borrowed in the
month of August, at that time, Ex.P1 was executed. When the
demand was made, to repay the same, Ex.P2/cheuqe was
issued. PW.1 categorically admitted that he paid an amount of
Rs.6,00,000/- and Mr.Suryan has seen payment of amount. In
order to substantiate his case, the complainant has produced
Exs.P1 and P2. But the accused has not produced any counter
document to nullify the facts mentioned in Ex.P1. In the foot
portion of Ex.P1, the signature of accused can be seen,
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therefore, the accused cannot dispute execution of said
document and contend that the said document was executed in
favour of M/s. Sabari associates without producing any counter
document to prove the same. The accused has not tendered
rebuttal evidence to show that the disputed cheque had not
been issued by her in favour of the complainant. The accused
has not produced any documents to show the preponderance of
probability is in her favour. The accused has suggested that
one Mr. Suryan induced the complainant to file this case
against the accused by utilizing the cheuqe given in the
transaction between said Mr. Suryan and accused, but the
accused has not proved the same by adducing oral or
documentary evidence. Hence, both the courts were right in
convicting the accused and there is no need to interfere with
the concurrent findings of court below.
6. Having heard the learned counsel for the petitioner
and respondent, it is clear that the hand loan agreement was
executed on 21.08.2018 and cheque was issued on
13.12.2018. The petitioner mainly contends that the
complainant has not shown his income capacity to lend a sum
of Rs.6,00,000/-, indeed it is for the complainant to prove his
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income capacity to pay as loan to others. But the suggestion of
the accused regarding profession of the complainant is enough
to prove that the complainant was running a partnership firm
along with one Mr. Suryan. Therefore, the complainant has
capacity to pay sum of Rs.6,00,000/-. Further the accused has
not challenged the issuance of cheque and execution of Ex.P1
Further the contention that there was a transaction between
Mr.Suryan and petitioner cannot be accepted and in order to
substantiate the said defence, nothing is placed on record.
Apart from that issuance of Ex.P2/cheque is also not disputed.
Accused contends that notice was not served on her, but she
has signed on Exs.P6 and P7 which are postal
acknowledgments, but she has to disprove that it is not of
petitioner. Though it is contented that reply was given but reply
was not marked. The only contention raised by the petitioner
before this Court is that the complainant has not declared in
the income tax the amount of Rs.6,00,000/-, no doubt PW.1
admitted that he has not disclosed same in the income tax
returns. The same is not a ground to come to a conclusion that
petitioner has rebutted the evidence and preponderance of
probability lies in her favour. Learned counsel for the petitioner
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has relied upon the judgment of Hon'ble Apex Court in the case
of Sri Dattatraya Vs. Sharanappa - AIR 2024 SC 4103,
wherein Apex Court has observed that the Court has to take
note of the factual aspects of the case by considering the
principles laid by the judgment also and subject to the facts
and circumstances of each case. In the case on hand, when
specific document is placed before the Court, with regard to
availment of hand loan in terms of Ex.P1 and in pursuance of
hand loan, cheque was issued as per Ex.P2 and when such
being the case, judgment which has been relied by counsel will
not comes to aid of the petitioner and to disprove the very
contention of petitioner that Exs.P1 and P2 were not executed
for having availed the hand loan, no rebuttal evidence is placed
before the Courts by the accused.
7. Hence, this Court cannot come to conclusion that
there is probable defence, unless same is proved. This Court
can exercise revisional jurisdiction only when the finding is not
legal and suffers from legal infirmity and then only Court can
exercise revision jurisdiction. Both the Courts have rightly come
to the conclusion that the accused is guilty of offence and held
that accused has issued the cheque in question for a sum of
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Rs.6,00,000/- for repayment of loan and hence, passed the
judgment of conviction and order of sentence, which did not
call for any interference.
Accordingly, I pass the following:
ORDER
Criminal Revision petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
HJ
