Karnataka High Court
Smt. Gangamma vs Sri D B Kumarachar on 11 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 985 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 985 OF 2021
BETWEEN:
1. SMT. GANGAMMA
D/O RAMACHANDRAPPA
AGED ABOUT 45 YEARS,
R/AT C/O CHANDRAMMA
NO.115, MANJUNATHA TEMPLE STREET
NEXT TO L.G. PUBLIC SCHOOL
PARVATHI NAGAR, LAGGERE
BENGALURU-560 058
PRESENTLY R/AT G.B.HALLI
(HASANPURA) ROLLE POST
MADAKASIRA TALUK
ANANTHAPURA DISTRICT
ANDHRA PRADESH
Digitally signed
by DEVIKA M ...PETITIONER
Location: HIGH
COURT OF (BY SRI. SHIVA PRASAD E., ADVOCATE)
KARNATAKA
AND:
1. SRI D.B. KUMARACHAR
S/O LATE BHASKARACHAR
AGED ABOUT 65 YEARS,
R/AT NO.9,
RMB 2ND STAGE, 2ND BLOCK
BENGALURU-560 054
...RESPONDENT
(BY SRI. NAGARAJA S., ADVOCATE [ABSENT])
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CRL.RP No. 985 of 2021
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO ALLOW THIS CRL.RP AND SET ASIDE THE
JUDGMENT AND ORDER DATED 02.03.2021, PASSED IN
CRL.A.NO.1567/2018, BY THE COURT OF THE LXII ADDL. CITY
CIVIL AND SESSIONS JUDGE, AT BENGALURU AND THE
JUDGMENT AND ORDER DATED 18.07.2018 PASSED IN
C.C.NO.2238/2015 BY THE COURT OF THE XII A.C.M.M., AT
BENGALURU AND CONSEQUENTLY ACQUIT THE
PETITIONER/ACCUSED FROM THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT.
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. This matter is listed for admission. Heard the
learned counsel for revision petitioner. The learned counsel
for respondent is absent today. On 28.01.2025 also the
counsel for respondent was absent and this Court made it
clear that if counsel for respondent does not appear on the
next date of hearing, the matter will be heard in his
absence.
2. This revision petition is filed against the order of
conviction and sentence passed in C.C.No.2238/2015 vide
order dated 18.07.2018 and confirmation by the First
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Appellate Court in Crl.A.No.1567/2018 dated 02.03.2021
to pay an amount of Rs.1,50,000/-, the accused shall pay
a fine of Rs.1,52,000/-. In default of payment of the said
fine amount, the accused shall undergo simple
imprisonment of two months and out of Rs.1,52,000/-, an
amount of Rs.2,000/- shall be remitted to the State and
the same was challenged in criminal appeal and the
Appellate Court also confirmed the order of the Trial Court.
Being aggrieved by the said orders, the present revision
petition is filed before this Court.
3. The factual matrix of case of the complainant
before the Trial Court is that the complainant and the
accused known to each other. The accused borrowed a
sum of Rs.1,50,000/- from the complainant on 15.12.2013
to improve the business of the accused agreeing to repay
the same with interest at 18% per annum within 6 months
time. Even after completion of 6 months the accused one
or other pretext dodged to repay the amount to the
complainant. On 18.12.2014, towards repayment of the
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loan of Rs.1,50,000/- the accused has issued the Cheques,
when the said Cheques are presented, the same were
dishonored and returned with an endorsement 'Funds
Insufficient' and legal notice was issued and the accused
did not give any reply and failed to repay the amount.
Hence, the complaint has been filed and the Trial Court
taken the cognizance. The accused did not plead guilty
and claims trial. In order to substantiate the case of the
complainant, examined himself as PW1 and got marked
the documents Ex.P1 to Ex.P6 and Ex.P6(a). The accused
denied the incriminating evidence in 313 statement and
examined as DW1 and got marked documents at Ex.D1 to
Ex.D4.
4. The Trial Court having considered both oral and
documentary evidence placed on record, particularly when
the Cheque was admitted, presumption can be drawn and
knowingfully having sufficient fund in her bank account
with an intention to defeat the claim of the complainant,
the said Cheque was given. The Trial Court comes to the
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conclusion that complainant has proved his case by giving
cogent evidence of document Ex.P1 to Ex.P6 and the same
is not rebutted under Section 139 of N.I Act. Being
aggrieved by the said order, an appeal is filed in
Crl.A.No.1567/2018. The First Appellate Court on
re-appreciation of both oral and documentary evidence
placed on record and having considered both the
evidences that the accused did not denied the very
issuance of Cheque and only taken the contention that this
Cheque was lost when the same was signed and kept in
the house of the complainant. The First Appellate Court
comes to the conclusion that the defense theory of the
accused was not proved and there is no material available
on record to substantiate the grounds which have been
urged by the appellant and confirmed the order of the Trial
Court and hence, the present revision petition is filed
before this Court.
5. The counsel appearing for the revision
petitioner would vehemently contend that both the Courts
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failed to consider the material on record. When the
accused in his evidence and rebutted the evidence of the
complainant, the same was not taken note of and there
cannot be presumption of fact and law. When the accused
successfully rebutted the same, there is no satisfactory
statement mentioned in any manner and there are
contradictions. The counsel also would contend that in the
complainant, it is specifically pleaded that Cheque was
given after one week and also contended that interest was
paid for a period of six months, but in the cross-
examination PW1 admits that Cheque was given on the
date of transaction and also no payment of interest was
made and agreed to pay the interest at 18%. When the
Cheque was given after one year what made the accused
to give a Cheque for the said amount and not included any
interest while issuing the Cheque and hence it is clear that
there was no any transaction between the complainant
and the accused.
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6. The counsel also brought to notice of this Court
that PW1 categorically admitted that accused came to
know her through one Chandramma and also says that
when the accused was staying in the house of person
belongs to the Muslim community he went to the house of
the accused twice that is prior to 15.12.2013 and says that
thereafter 7 times went to the village of the accused, but
claims that accused was having a bangle store at
Hegganahalli village. It is elicited that prior to 15.12.2013
no amount was given to the accused and she demanded
the loan amount in her house and she cannot tell exact
date. It is also elicited that he was having retirement
money in the corporation bank and amount was drawn
from the bank to the tune of Rs.61,00,000/-, out of that
made the payment of the subject matter of the Cheque. It
is also the case that in November-2013 she has purchased
the property and remaining amount was in the house. In
further cross-examination, it is elicited that husband of
Chandramma and herself working in the same company
that is Car mobile company and Chandramma used to get
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the money from her and she might have given money to
others also. It is also elicited that she went to the house of
fancy store, but did not know the name of the fancy store.
It is elicited that she knows the accused only prior to six
months of the transaction and when Chandramma used to
visit her house, accused used to visit her house. The
amount was paid by cash and also getting the income of
rent from the house and except the said Cheque, she did
not obtained any document and also says that accused has
not paid any interest to that amount. It is suggested that
accused not running any shop and same was denied. It is
her evidence that herself and Chandramma both are very
cordial and they used to visit the house of the accused and
when the accused went to the work of garments, taking
the key of the house, stolen those Cheques and made use
of the same for filing the complainant. The accused
examined as DW1 and also produced the document Ex.D1
to Ex.D4 and he was subjected to cross-examination and
categorically says that last three Cheques and returned
remaining Cheques and closed the account on 05.08.2014.
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In the cross-examination admits that in Bangalore
jurisdiction residing from last 20 years and also from 4 to
5 year residing at Hasanpura and admits that signature is
found in Ex.P1 and also identified as Ex.P1(a). It is also
elicited that at the time of issuance of notice, she was
residing at Hasanpura and her children are in need of
money, she gave the Cheques and kept the same in the
drawer and when she asks for children, whether they have
drawn the money, children have not given any reply and
cannot say on what date she had signed the Cheques and
kept the same in the drawer and her one of the son is
working as driver and they used to give money to her
Rs.8,000/- to Rs.10,000/- per month and she used to keep
the amount in her account and she cannot tell on what
date amount was given by her children and she has not
given any complaint when the Cheques were lost and only
she has given intimation to the bank. It is also her
evidence that she cannot tell Ex.D4 is in existence and
also she did not mentioned the same in Ex.D4 on what
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date Cheque was lost and she has not given any complaint
against the Chandramma as well as the complainant.
7. Having re-assessed the material on record, no
doubt scope of revision is very limited, but main
contention of the counsel appearing for the petitioner is
that Cheques were lost and the same were misused. In
order to prove the case of the defense, whether sufficient
materials are available or not this Court has to look into
the same. Admittedly, Cheque belongs to the accused and
not disputes the same and also it is the contention that
Cheques are kept in the drawer after signing the same and
she used to give key to the Chandramma and when the
accused went to duty, at that time, the same was stolen.
No doubt it has to be noted that bank intimation is given
in the month of August-2014, but it is the case of the
complainant that amount was taken in the year 2013. It is
the case of the complainant that Cheque was given in the
month of December-2014. No doubt Ex.D4 is also given
which is intimation to the bank, but the fact is that when
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the Cheques are signed and kept in the drawer, nothing is
mentioned in the Ex.D4 and having considered Ex.D4, only
Cheques numbers are mentioned that they are lost where
the same have been lost is not stated and also even not
examined the said Chandramma for taking of the Cheques
from the drawer of the accused.
8. It is also important to note no complaint was
given against either Chandramma or against the
complainant for having stolen the Cheques and the same
is categorically admitted by DW1. Though the statements
of account is produced as Ex.D2 and also Ex.D3, no doubt
account closing cash debit date is mentioned as
21.08.2014 and also records reveals that Cheque was
given subsequent to the letter given to the bank and how
the document of Cheque gone to the hands of the
complainant, no probable evidence is placed before the
Court except giving of the complaint. The counsel brought
to notice of the contradictions in the evidence of
complainant for having paid the interest is concerned and
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in the cross-examination says no interest was paid, but in
the complaint it is mentioned that interest was paid for a
period of 6 months and not paid the interest subsequently
and this admission will not take away the case of the
complainant when the Cheque was issued and when the
Cheque was admitted that the same belongs to the
complainant and only contention that three Cheques are
lost but no complaint was given to the Police, but only
intimation was given to the bank that too particularly in
respect of three Cheques and subject matter of Cheque is
only one Cheque and the fact that when the Cheque was
presented an endorsement was given on 19.12.2014 as
'Funds Insufficient', but contend that intimation was given
to the bank in terms of the Ex.D4 and on the said letter
itself the seal was put that account was closed, but not
examined the author of the document Ex.D4 and hence
the Trial Court as well as the First Appellate Court rightly
drawn the presumption under Section 139 of N.I Act when
there is no any rebuttable presumption and also when
documents are placed before the Court, both the Courts
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have drawn the presumption and invoked Section 138 of
N.I Act. The Revision Petitioner fails to prove the defense
and no doubt mere closure of account in the bank itself is
not a ground even after issuance of Cheque and closure of
account also attracted Section 138 of N.I Act, but the fact
is that account was closed on 05.08.2014, but Cheque
date was subsequent to the closure of the account. It is
also important to note that the complainant has
specifically stated that loan was availed on 15.12.2013
and the accused personally approached the complainant
on 18.12.2014 and issued a Cheque and nothing is elicited
with regard to the specific pleading of the complainant that
he went and gave the Cheque on 18.12.2014 and having
made the payment by way Cheque on 18.12.2014, nothing
is elicited and when such being the material on record, I
do not find any error committed by Trial Court and also
the First Appellate Court in coming to the conclusion that
presumption could be drawn under Section 139 of N.I Act
and the same has not been rebutted. No doubt under
section 139 of N.I Act, evidence of the complaint can be
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rebutted and when the Cheques are lost in the house, no
such complaint was given either against the complainant
or against the Chandramma who is known to both the
complainant as well as the accused and also specifically
admitted in the cross-examination that she kept the
Cheque in the drawer and she went for job. Though
contend that she enquired with children whether they have
drawn the money from account, but no specific answer in
the cross-examination of DW1 and whether children have
withdrawn the money or not also no answer from the
mouth of DW1 and when the same was noticed when she
asked the children whether they have drawn the money
and found Cheques are missing, but no complaint was
given except the document of Ex.D4 intimation letter was
given. Under these circumstances, the theory of lost the
Cheque and not issued the Cheque in favour of the
complainant cannot be believed and except giving the
letter in terms of the Ex.D4 that Cheques are lost and
where it was lost nothing is stated in the Ex.D4, but at the
time of defense, it is stated that Cheques are lost which
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were kept in the drawer of the house and hence, theory of
the defense not accepted by the Trial Court and First
Appellate Court and when the evidence was appreciated by
the Trial Court as well as the First Appellate Court and only
this Court can exercise the revisional jurisdiction if
evidence available on record and finding is not legal and
under such circumstances, revisional jurisdiction can be
exercised. Hence, I do not find any infirmity in the order
and question of exercising revisional powers does not
arise.
9. In view of the discussions made above, I pass
the following:
ORDER
The Revision Petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
