Karnataka High Court
L N Nagaraju vs K Prema on 7 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1114/2015
BETWEEN:
L.N. NAGARAJU
S/O NANJAPPA,
AGED ABOUT 46 YEARS,
SOYAKA, SRI BAHUBALI POLYTICHNIC COLLEGE,
SRAVANABELAGOLA,
CHENNARAYAPATNA,
HASSAN-573 135. ... PETITIONER
(BY SRI. H.A.RAMALINGE GOWDA, ADVOCATE)
AND:
K. PREMA
W/O MANJUNATH,
AGED ABOUT 32 YEARS,
R/AT NO.32, MADHAVA NILAYA,
HEMAATHI ROAD,
GRUHALAKSHMI LAYOUT,
BASAVESHWARANAGAR,
BENGALURU-79. ... RESPONDENT
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401(5) OF CR.P.C PRAYING TO SET ASIDE
THE ORDER OF CONVICTION AND SENTENCE AND FINE
IMPOSED VIDE JUDGMENT AND ORDER DATED 14.01.2015
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PASSED BY THE XVI ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU IN C.C.NO.11968/2008 AND
FURTHER BE PLEASED TO SET ASIDE THE JUDGMENT DATED
18.08.2015 PASSED BY THE LXII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU(CCH:63) IN CRL.A.NO.214/2015
AND FURTHER BE PLEASED TO PASS ORDER COMMENSURATING
FACTS AND CIRCUMSTANCES OF THE CASE AND ACQUIT THE
PETITIONER AND ETC.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 01.02.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
This petition is filed challenging the judgment of conviction
and sentence dated 14.01.2015 passed in C.C.No.11968/2008
for the offence punishable under Section 138 of NI Act by the
Trial Court and the judgment dated 18.08.2015 passed in
Crl.A.No.214/2015 by the First Appellate Court.
2. Heard the learned counsel appearing for the
petitioner. Though respondent served, unrepresented.
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3. The factual matrix of the case of the complainant
before the Trial Court that the accused being known to the
complainant, approached her on 12.11.2007 and obtained a
hand loan of Rs.1,20,000/- from her to meet his financial
necessities agreeing to repay the said amount within a month
and to discharge his liability, accused issued a subject matter of
Cheque dated 11.01.2008 for the said amount. On presentation
of the said Cheque, the same was dishonoured with an
endorsement 'funds insufficient' and hence, legal notice was
issued calling upon the accused to repay the loan amount and
the same was served, but, reply was not given and hence, the
complaint was lodged and cognizance was taken and accused
was secured before the Trial Court and he did not plead guilty
and claims trial. Hence, the complainant examined herself as
PW1 and also examined one more witness as PW2 and got
marked the documents at Ex.P1 to P10. On the other hand, the
accused was subjected to 313 statement and also led defence
evidence by examining himself as DW1 and also examined one
more witness as DW2.
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4. The Trial Court having considered both oral and
documentary evidence placed on record comes to the conclusion
that it is not in dispute that Cheque at Ex.P1 belongs to the
accused and signature found in the said Cheque is also belongs
to accused. But it is the contention of the complainant that she
made the payment of Rs.1,20,000/- and accused set up a
defence that he had received an amount of Rs.20,000/- from
Mahadevappa who is none other than the brother of the
complainant and also deposed that he himself and said
Mahadevappa were working in the PWD and he does not know
the complainant and he further deposed that he had repaid the
amount of Rs.10,000/- to Mahadevappa and he had to pay
balance of Rs.10,000/- and regarding payment of balance
amount is concerned, a galata was took place between him and
the said Mahadevappa. Hence, he had executed Ex.P10 for an
amount of Rs.10,000/- and in the said document, the said
amount of Rs.10,000/- was made as Rs.1,00,000/- and Cheque
which was issued for Rs.20,000/- also manipulated as
Rs.1,20,000/-. The Trial Court having considered both oral and
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documentary evidence placed on record accepted the evidence
of PW1 and PW2 and did not accept the defence of the accused
and presumed that the Cheque is issued for legally enforceable
debt and also comes to the conclusion that legal notice issued
presumed to be served on the accused and convicted and
sentenced the accused for the offence punishable under Section
138 of NI Act. Being aggrieved by the said order, the accused
preferred an appeal before the First Appellate Court in
Crl.A.No.214/2015.
5. In Crl.A.No.214/2015 also similar grounds were
urged by the accused and the First Appellate Court taken note of
the fact that Ex.P1 goes to show that whenever a person fills up
the amount in figures in the cheque, he starts from nearest point
of rupees and not by leaving any space. On perusal of Ex.P1
goes to show that there are no signs of material alteration,
though the signature of accused is in black ink and other
contents are in blue ink. Accused has categorically contended
that he has issued the cheque to Mahadevappa by writing
Rs.20,000/- in figures only. But the same is manipulated.
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Except the signature of the accused, all other contents of the
Cheque are in blue ink. If the accused has written the amount of
Rs.20,000/- in figures in the Cheque, at the time of issuing to
Mahadevappa, then, the said portion should be in black ink. But
it is not so and hence, not accepted the defence of the accused
and confirmed the judgment of the Trial Court in coming to the
conclusion that presumption is applicable under Section 139 of
NI Act and same has not been rebutted and also comes to the
conclusion that Ex.P10 discloses that it is written by accused
wherein he has mentioned that one Prema of Saptagiri Finance
has filed a complaint against the accused for Rs.1,00,000/- and
there is a warrant pending against the accused in this case and
he settled the matter within short period the though, accused
deposed that said document was got by the police at behest of
the complainant by force, but no such evidence is forthcoming
and did not accept the defence of the accused and confirmed the
judgment of the Trial Court.
6. In this petition, the learned counsel for the petitioner
would vehemently contend that both the Courts have not
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appreciated the cross-examination of PW1 and PW2 though they
categorically admitted that they have not produced any
documents to show that the complainant is capable woman to
lend huge amount of Rs.1,20,000/- to the petitioner. It is also
contended that the Cheque was altered by inserting "1" as
against "20,000/-" and both the Courts have not observed the
same and also in respect of Ex.P10, in front of Rs.10,000/-,
respondent has inserted another "0" [zero] and made the same
as Rs.1,00,000/- instead of Rs.10,000/- and hence, Ex.P11 and
P10 not properly appreciated by both the Courts. It is also
contend that if any payment is made more than Rs.20,000/-,
same must be made through Cheque. Non-compliance of
provisions of Section 263 SS of Income Tax Act also not taken
note of by both the Courts. It is also contend that both the
Courts have not considered the defence evidence of DW1 and
DW2 that he had borrowed only an amount of Rs.20,000/- from
Mahadevappa not from the complainant and fails to take note of
the answer elicited from the mouth of witnesses that the accused
came to know about filing of case against him by the sister of
the said Mahadevappa only after payment of Rs.10,000/- and
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specifically admitted that the said Mahadevappa and the accused
were working together and there was a transaction between
them and not with the complainant. The counsel also would
vehemently contend that when Ex.P1 is materially altered, ought
not to have convicted the petitioner and sentenced. The said
defence, cheque and undertaking as per Ex.P1 and P10 is only
for Rs.20,000/- and 10,000/- respectively and the same was
altered in both the documents but fails to consider the same.
Hence, this Court has to exercise the revisional jurisdiction.
7. Having heard the learned counsel appearing for the
petitioner and on perusal of the material available on record, the
points that would arise for the consideration of this Court are?
1. Whether both the Courts have committed an error
in appreciating the evidence and whether it
amounts to perversity and suffers from its legality
and correctness and whether this Court can
exercise the revisional jurisdiction?
2. What order?
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Point No.1:
8. Having heard the learned counsel appearing for the
petitioner and on perusal of the material available on record, it
discloses that the specific case of the complainant that the
accused approached her and taken the hand loan of
Rs.1,20,000/- to meet his financial necessities and accused
promised to repay the same within a month and to discharge his
liability, he had issued the Cheque. Having perused the material
available on record, it discloses that the accused also not
disputes his signature and issuance of Cheque. His only defence
is that there was no transaction between the complainant and
himself and the transaction taken place between one
Mahadevappa and himself. It is important to note that in the
defence, specific question was put to the witness - PW1 with
regard to the name of Mahadevappa, she categorically admits
that the said Mahadevappa is her brother and categorical
admission was given that he is working in PWD at
Shravanabelagola and accused is also working at
Shravanabelagola.
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9. It is important to note that the reason for lending the
money, PW1 says that he had availed the loan for his daughter's
treatment since she is suffering from ill-health and she did not
obtain any document except the Cheque and PW1 also
categorically admits that she is not having document to show
that she was having that much of amount but she gave the
amount by cash and though she claims that she is working in
Sapthagiri Merchant Finance as working partner and getting
salary of Rs.25,000/- per month but not produced any document
in this regard. It is also admitted that accused is working at
Shravanabelagola, Hassan district and residing there and only
once, he came to receive money and he never came to her
house except that time but she claims that he demanded money
over phone and there was no any impediment for making the
payment through Cheque and specific question was put to the
witness that the said disputed Cheque was given to her brother
and he only wrote the amount as Rs.20,000/- in the said Cheque
and the same was denied. It is also her evidence that he met
her and gave the undertaking letter in terms of Ex.P10 and
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specific question was also put that in the said document, amount
is mentioned as Rs.10,000/- and the same was also altered
making as Rs.1,00,000/- and said suggestion was denied.
Having considered this cross-examination, it is clear that the
defence is that he only gave the Cheque for Rs.20,000/- and
undertaking letter also given for Rs.10,000/- and not for
Rs.1,00,000/-. No doubt, the complainant examined one more
witness as PW2 who is the brother of the complainant and he
says that he has not lent any money and he was also subjected
to the cross-examination and same defence was taken in the
cross-examination.
10. It is also important to note that accused is also
examined as DW1 and he also reiterated the same in terms of
his defence taken in the cross-examination and suggestion was
made that not taken the amount of Rs.20,000/- and taken
Rs.1,20,000/- and also he has undertaken to pay the amount of
Rs.1,00,000/- and the said suggestion was denied. Accused also
examined one witness as DW2 and he says that accused does
not know about the complainant but he knows the Mahadevappa
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and accused had taken loan of Rs.20,000/- from Mahadevappa
and when the said Mahadevappa insisted for security, he gave
the Cheque for an amount of Rs.20,000/- and he also identified
the Cheque and also he gave an undertaking after three years
stating that he would pay the remaining amount of Rs.10,000/-.
This witness was also cross-examined and in the cross-
examination, he admits that he is having acquaintance with the
accused from last ten years and he also admits that
Mahadevappa working in PWD and he cannot tell the date of
availing of loan and on the date of demand, the amount was paid
and gave the Cheque on the very same day and an amount of
Rs.10,000/- was paid but he cannot tell specific date but it was
after three years. At the time of advancing the loan and
issuance of Cheque, he himself, Mahadevappa and accused were
there and no other persons were there.
11. Having considered the evidence on record, it is clear
that both the accused and the brother of the complainant were
working at Shravanabelagola and the same is admitted by PW1.
The specific case of the accused also that he availed the loan
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from Mahadevappa. No doubt, that Mahadevappa also examined
before the Court but he denies loan transaction. But the fact is
that the brother of the complainant working in PWD at
Shravanabelagola and accused also working at Shravanabelagola
and also answer is elicited that she has not obtained any
document for having making the payment by cash except
collection of Cheque by the accused and the accused deposed
that he gave the Cheque only for Rs.20,000/- and not borrowed
an amount of Rs.1,20,000/-.
12. Having perused the document at Ex.P1, it is very
clear that the amount mentioned as Rs.20,000/- is in one ink
and insertion of "1" before "20,000/-" is in different ink and
hence, clear insertion could be seen comparing the said
document. It is also important to note that the Court can invoke
Section 73 of the Evidence Act to compare the document with
regard to writing available on the document. It is also important
to note that Ex.P10 is dated 25.10.2011 and the said document
is also obtained when warrant was issued on account of filing of
case by Prema and he came to know about the same and spoke
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to the complainant and undertaken to repay the amount and
gave an undertaking letter and he also admits the signature
available in Ex.P10. But the case of the accused case is that he
gave an undertaking for an amount of Rs.10,000/-, since he had
made the payment of Rs.10,000/- out of Rs.20,000/-. On
perusal of the amount mentioned in this document, it clearly
seen that Rs.10,000/- was made as Rs.1,00,000/- by adding
another "0" [zero]. When the same was meticulously examined,
it is clear that all the three zeros is in same size and another "0"
[zero] is in different size in an amount of Rs.1,00,000/-. Apart
from that "comma" was not put immediately after "1" and same
was put after "10" and it is clear that "comma" was put after
Rs.10,000/- and added "0" [zero]. Thus, these documents
would have been meticulously examined by both the Courts and
ought to have compared the same as held under Section 73 of
the Evidence Act and the Court can compare the same. The
defence of accused also that Ex.P1 has been altered and
alteration of Cheque appears in the document at Ex.P1 by
insertimg of "1" prior to "20,000" and may be there was a gap
and space to add "1" and the First Appellate Court committed an
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error holding that there was space prior to "20,000". But the fact
is that "1" has been added and same is clearly visible to the bear
eyes and the said "1" is also in different size and in different ink
and though the same is also blue colour, but he had signed with
black colour ink pen but very mentioning of the amount in the
Cheque could be seen by bear eyes that "1" has been added
before "20,000".
13. It is also important to note that the fact that both
the Mahadevappa who is the brother of the complainant and
accused were working at Shravanabelagola is also not in dispute
and the complainant is residing in Bengaluru and accused is
residing at Shravanabelagola, Hassan is also admitted. But now,
the doubt arise is that how both i.e., the complainant and
accused were have acquaintance with each other and nothing is
stated in this regard in the evidence of PW1. It has to be noted
that Ex.P10 is dated 25.10.2011. It is the specific case of the
accused that he had repaid the amount of Rs.10,000/- and this
document was given in the year 2011. It is also important to
note that loan transaction was taken place in the year 2007 but
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this undertaking was given after the period of three years and
same also not taken note of by both the Courts. Even if said
undertaking was given with regard to the availing of amount,
though Cheque was dated 11.01.2008, the undertaking would
have been given before January 2011 but the same is dated
25.10.2011 that too after filing of the criminal case and also
submission is very specific that warrant was issued against the
accused and at that time, this undertaking was given. The very
contention that he had paid the amount of Rs.10,000/- and
agreed to pay remaining amount of Rs.10,000/- is probable
since he had mentioned the amount in the document as
Rs.10,000/- and same has been made as Rs.1,00,000/- by
adding "0" [zero] as contended by the accused. Apart from that
even Cheque is also manipulated as Rs.1,20,000/- as against
Rs.20,000/- and the same was not examined by both the Courts
and only invoked the presumption under Section 139 of NI Act.
It is also settled law that presumption under Section 139 is
rebuttal presumption and accused also rebutted the presumption
by leading plausible evidence before the Trial Court that he had
acquaintance with only Mahadevappa since both of them were
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working at Shravanabelagola and same is also elicited from the
mouth of PW1. Though examined said Mahadevappa, he also did
not dispute the said fact.
14. It is the specific case that he had only received an
amount of Rs.20,000/- and not Rs.1,20,000/- and undertaking is
also given for Rs.10,000/- not for Rs.1,00,000/- and both the
Courts fails to take note of the fact that undertaking was given
when the warrant was issued and took four years time to make
the balance amount of Rs.10,000/-. Hence, both Courts
committed an error in not considering these documents and
compare the same and having compared the same invoking
Section 73 of the Evidence Act, very case of the accused is
probable than the case of the complainant. I have already
pointed out that the presumption is rebuttal presumption and
same is rebutted relying upon the document at Ex.P1 and P10
and same is substantiated contention of the accused. When
such being the case, it is a clear case of manipulation of
document at Ex.P1 so also Ex.P10 and same has been lost sight
by the Trial Court as well as the First Appellate Court. Both
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Courts also fails to take note of the fact that if really made the
payment of Rs.1,20,000/-, what made to take undertaking only
for Rs.1,00,000/- and it would have been Rs.1,20,000/- if really
it is true.
15. Having considered the reasoning given by both the
Courts, it discloses that not only lost the sight on Ex.P1 and P10
but fails to consider the admission given by PW1 that the
Mahadevappa who is her brother and accused were working at
Shravanabelagola and she is residing at Bengaluru but accused
residing at Shravanabelagola where he works and also says that
she met the accused once only to make the payment and not at
any point of time. When the complainant not met the accused at
any point of time except lending of money that too advancing
the amount Rs.1,20,000/- without any earlier acquaintance also
creates the doubt and also categorically admitted that not having
any document to show that she was having cash of
Rs.1,20,000/- at the time of lending the money and no other
document is obtained from the accused except Cheque and case
of the accused that he had availed the money from
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Mahadevappa not from the complainant is very probable since
both of them were working at same place and have acquaintance
with each other. Hence, it is clear case that the said
Mahadevappa got filed the complaint through PW1 who is the
resident of Bengaluru not the resident of Hassan and these
preponderance of probabilities have not been considered by the
Trial Court while accepting the case of the complainant and
committed an error in rejecting the defence of the accused when
accused case is more probable than the complainant and the
same has not been considered by both the Courts and hence, it
is a clear case of perversity in the finding of both the Courts
when no legal evidence available on record. When the evidence
and finding is not legal, the Court can exercise the revisional
jurisdiction if order suffers from its legality and correctness.
Hence, this case is a fit case to exercise the revisional
jurisdiction to reverse the concurrent finding of both the Courts.
Hence, I answer the above point as affirmative.
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Point No.2:
16. In view of the discussions made above, I pass the
following:
ORDER
The revision petition is allowed.
The impugned judgment of conviction and sentence dated
14.01.2015 passed in C.C.No.11968/2008 by the Trial Court and
the judgment dated 18.08.2015 passed in Crl.A.No.214/2015 by
the First Appellate Court are hereby set aside. Consequently,
the petitioner/accused is acquitted for the offence punishable
under Section 138 of NI Act.
Sd/-
(H.P. SANDESH)
JUDGE
SN
