Karnataka High Court
Sri K Shabbir Ahmed vs Smt. N Bharamaramba on 7 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 704 of 2020
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. 704 OF 2020
BETWEEN:
1. SRI. K. SHABBIR AHMED
S/O. KHASIM SAB
AGED ABOUT 65 YEARS
R/O. 2ND CROSS
KOTE AREA, OLD TOWN
BHADRAVATHI-577 245.
...PETITIONER
(BY SRI. MALLIKARJUN C. BASAREDDY, ADVOCATE)
AND:
1. SMT. N. BHARAMARAMBA
W/O. LATE SHANMUKHAPPA
AGED ABOUT 60 YEARS
Digitally signed
by DEVIKA M R/O. SAVI NILAYA
Location: HIGH SIDDARODA NAGARA
COURT OF OLD TOWN
KARNATAKA BHARAVATHI-577 245.
...RESPONDENT
(BY SRI. B.V.VEERA ARAVIND, ADVOCATE - [ABSENT])
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 17.02.2020
IN C.C.NO.749/2019 ON THE FILE OF THE PRL. SENIOR CIVIL
JUDGE AND JMFC AT BHADRAVATHI, WHICH CONFIRMED IN
CRL.A.NO.5006/2020 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT
BHADRAVATHI.
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CRL.RP No. 704 of 2020
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
1. Heard the learned counsel for revision petitioner
and also the learned counsel for the respondent is absent
and this Court earlier made it clear that if counsel does not
appear in the next date of hearing, the matter will be
heard in his absence.
2. The factual matrix of case of the complainant
before the Trial Court that this petitioner has availed sum
of Rs.2,00,000/- on 12.02.2013 for discharging his debts
towards the construction of his house. The accused also
issued the post dated Cheque dated 10.12.2014 for a sum
of Rs.2,00,000/- and agreed to pay the interest at 18%
per annum. When the Cheque was presented in view of
non payment of the amount as agreed, the same was
dishonoured with an endorsement that 'Funds insufficient'.
The notice was issued and postal authority had issued the
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intimation to the accused regarding the above legal notice
and with dishonest intention he awarded repayment and
the same was returned after 7 days he enquired and
intimation was given and hence he did not pay the amount
on demand and hence filed the complaint and cognizance
was taken before the Trial Court. The accused was secured
and he did not plead guilty and claims trial and hence, the
Trial Court examined the complainant as PW1 and got
marked the documents Ex.P1 to Ex.P7 and accused also
examined himself as DW1 and also examined wife as DW2
and got marked Ex.D1 and Ex.D2.
3. The Trial Court having considered both oral and
documentary evidence placed on record comes to the
conclusion that the case of the complainant is probable
than the accused. The Ex.D1 is very clear that the
complainant was not doing any chit business and he has
denied the suggestion that her husband had issued the
Ex.P1 for discharging loan borrowed by him for
Rs.2,00,000/- on 12.02.2013 agreeing to repay the same
with interest at the rate of 18% and also comes to the
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conclusion that DW1 and DW2 cross-examination is clear
that accused has fail to connect issuance of Cheque Ex.P1
with alleged chit business. The DW1 and DW2 have clearly
admitted that they have not taken any legal action against
the complainant for misusing the Cheque issued by them
as per Ex.D2 and also comes to the conclusion that
accused has not replied to the legal notice issued by the
complainant. Apart from that the complainant produced
the document of Cheque and also produced the Ex.P6
which clearly discloses that earlier there was a transaction
between the parties and also presumption under Section
118 and 139 of N.I Act not been rebutted by placing any
preponderance of probabilities and statutory presumption
was drawn in favour of complainant in coming to the
conclusion that except legal necessity, no other reasons
are found for having issued the Cheque Ex.P1 which is not
disputed and hence convicted the accused and ordered to
sentence and the same has been challenged in the
criminal appeal and in the criminal appeal also the First
Appellate Court having re-assessed the material available
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on record, comes to the conclusion that no dispute with
regard to the issuance of Cheque. The Trial Court has
observed that all these decisions are not applicable and
there is no error committed by the Trial Court in
considering the material on record. The First Appellate
Court also taken note of Section 27 of General Clauses Act
regarding service of notice is concerned, when the notice
was sent to the correct address and also taken note of the
notice sent by the complainant was returned with an
endorsement as he has enquired 7 days and not found and
hence returned to the sender. When there is no dispute
with regard to the issuance of Cheque and also the
document Ex.P6 clearly discloses that there were
transaction between both of the complainant and his wife
and also accused has signed the document for having
received the amount of Rs.1,00,000/- earlier in the year
2004 which evidence the fact with regard transactions
between the complainant and accused. Hence, confirmed
the judgment of the Trial Court.
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4. Being aggrieved by the concurrent finding the
present revision petition is filed before this Court. The
main contention of the revision petitioner that once Ex.P1
was executed and also DW1 categorically admitted that
the said amount was not paid. The said transaction is in
respect of 2004 and what made to execute the Cheque in
the year 2014 and the same has not been considered by
the Trial Court. The counsel also would vehemently
contend that the material is very clear that there was a
chit transaction between the complainant and wife of the
accused and in that connection, the Cheque was given as
security and defense of the accused also probabilized
inspite of both the Courts committed an error in coming to
the conclusion that Cheque was issued discharging of legal
liability for having received the amount. The Courts below
comes to the conclusion that DW2 who is the wife of the
petitioner admitted the issue of Cheque to the respondent
and convicted the petitioner which is against the procedure
of law since the DW2 clearly given stating that the Cheque
was issued regarding the chit transaction as a security and
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not for the present case and the same has not been
considered by both the Courts.
5. The learned counsel for the petitioner relied
upon the judgment reported in (2019) 5 SCC 418 in the
case of BASALINGAPPA vs MUDIBASAPPA wherein the
Apex Court held with regard to the source of income is
concerned and standard of proof, while prosecution must
establish its case beyond reasonable doubt, accused to
prove a defence must only meet standard of
preponderance of probabilities.
6. The learned counsel for the petitioner also
relied upon the judgment of this Court passed in
R.F.A.No.565/2010 dated 14.06.2019 wherein also
discussion was made with regard to presumption as to
negotiable instruments of consideration of Section 138 and
brought to notice of this Court paragraph 14 wherein
discussion was made with regard to answer elicited from
the mouth of witnesses regarding the documents.
7. Having heard the learned counsel appearing for
the petitioner and considering the principles laid down in
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the judgments referred supra, the points that would arise
for consideration of this Court are:
i) Whether both the Courts committed an
error in convicting and sentencing the
accused for the offence punishable under
Section 138 of NI Act and it amounts to
any perversity in the finding and suffers
from its legality and correctness?
ii) What order?
Point No.1:
8. Having heard the learned counsel appearing for
the petitioner and also on perusal of the material on
record, it discloses that this petitioner availed a loan of
Rs.2,00,000/- in the year 2013 from the complainant and
gave posted dated Cheque in the month of December
2014, when the said Cheque was presented, it got
dishonoured and hence, legal notice was issued and the
said notice was returned with an endorsement that
'postman visited the house of the petitioner seven days',
thereafter returned the same as 'not known'. It is the fact
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that the petitioner did not dispute issuance of Cheque at
Ex.P1 but his only defence is with regard to the chit
transaction is concerned and his wife has given the said
Cheque which was signed by the petitioner. However, in
the cross-examination, DW1 admits that his wife has given
the said Cheque towards chit transaction but his wife -
DW2 deposed in her cross-examination that Cheque was
signed by her husband in order to withdraw the retirement
benefit amount and same was given to the complainant
and hence, the version of DW1 and DW2 is contrary to
each other.
9. It is important to note that Ex.P6 clearly
discloses that there were money transaction between the
complainant and accused family and the documents also
reveal that in the year 2004 also accused availed the
amount of Rs.1,00,000/- and the accused and his wife
have signed the said document. When said document is
placed before the Court, it evident the fact that there is a
financial transaction between the complainant and
accused. The theory of Cheque was given in respect of
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chit transaction is concerned, same has not been proved.
The fact that there was a chit transaction between the wife
of the accused and complainant and same is not in dispute
since document at Ex.D1 was confronted to the
complainant and the complainant admitted the same. The
fact that wife of accused only gave the said Cheque.
However, accused also showed the document at Ex.D2 and
DW1 categorically admits that the said Cheque is in his
custody and same is also not utilized by any of the parties.
When such being the case, mere production of Ex.D2 also
not probabilize the case of the petitioner. Once the
petitioner admits that he has issued the Cheque, though
contend that it is in respect of chit transaction is
concerned, the very evidence of DW1 and DW2 is contrary
to each other and DW2 not says that the said Cheque was
not given by her husband towards security as contended
by DW1 and answer given by DW1 and DW2 is contrary to
each other.
10. The counsel in support of his arguments relied
upon BASALINGAPPA's case referred supra. The
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complainant in her evidence categorically stated that she
is having building and getting the rent of Rs.30,000/- per
month and though not produced the receipt for having
received the amount, DW1 categorically admitted that the
complainant having three storey building. When such
evidence is given by the complainant and same has been
admitted by the accused, now, the petitioner cannot
contend that not having any source of income. The other
judgment relied upon by the counsel for the petitioner is
with regard to the contents of the document is not in the
handwriting of the accused and same cannot be a ground
to allow the revision petition since the Apex Court recently
held that once issuance of blank Cheque is admitted, later
on cannot contend that same is not in his handwriting
when authorization was given to the complainant to fill up
the Cheque and the accused cannot contend that said
Cheque was misused. In the case on hand also when the
defence was taken that Cheque was misused but no
complaint was given and same is admitted by the witness
before the Trial Court. When such being the material on
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record, I do not find any perversity in finding of both the
Courts and this Court can exercise the revision jurisdiction
only when the finding of both the Courts suffers from its
legality and correctness. Hence, no grounds are made out
in this revision petition to exercise the revisional
jurisdiction by this Court. Accordingly, the above point
No.1 is answered as 'Negative'.
Point No.2:
In view of the discussions made above, I pass the
following:
ORDER
The Revision Petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS,SN
