Karnataka High Court
Sri. T. Jagadeesh vs Sri. K.R. Shivashankarappa on 13 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 1602 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1602 OF 2016
BETWEEN:
1. SRI. T. JAGADEESH
S/O THIMMANNA
AGED ABOUT 50 YEARS
TEACHER
R/O ASANDI VILLAGE AND POST
HIRENALLUR HOBLI
KADURU TALLUK
CHIKKAMAGALURU DISTRICT
PIN -577548
...PETITIONER
(BY SRI. K.S.GANESHA, ADVOCATE [THROUGH V.C.])
AND:
Digitally signed
by DEVIKA M 1. SRI. K.R.SHIVASHANKARAPPA
Location: HIGH S/O REVANNA
COURT OF AGED ABOUT 51 YEARS
KARNATAKA ADVOCATE
R/O RAILWAY STATION ROAD
KADURU
CHIKMAGALURU DISTRICT
PIN-577548
...RESPONDENT
(BY SRI. N.V.MANJUNATH, ADVOCATE)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
20.10.2016 PASSED BY THE II ADDL. SESSIONS JUDGE,
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CRL.RP No. 1602 of 2016
CHIKKAMAGALURU IN CRL.A.NO.364/2013 AND ALSO SET
ASIDE THE JUDGMENT DATED 11.09.2013 PASSED BY THE II
ADDL. CIVIL JUDGE AND JMFC, KADUR IN C.C.NO.1076/2005
IN CONVICTING THE PETITIONER AND DIRECT THAT THE
PETITIONER BE ACQUITTED.
THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard learned counsel for the petitioner and learned
counsel for the respondent.
2. This revision petition is filed against the concurrent
finding of the Trial Court convicting the petitioner for the
offence punishable under Section 138 of N.I. Act and
confirmation the same by First Appellate Court in the appeal.
3. The factual matrix of the case of the complainant
before the Trial Court is that during the month of March, 2005,
the accused approached the complainant for financial
assistance for the purpose of his family necessity, borrowed an
amount of Rs.90,000/-. Having received the said amount, he
gave post-dated Cheque dated 03.05.2005 for a sum of
Rs.90,000/-. On presentation of the said Cheque, the same was
dishonoured with an endorsement 'funds insufficient'.
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Immediately, he gave notice and no reply was given and
complaint was filed and the Trial Court taken cognizance and
secured the accused and the accused did not plead guilty and
claimed for trial.
4. The complainant examined himself as P.W.1 and
got marked the documents as Exs.P1 to P9. The statement of
accused under Section 313 Cr.P.C. was recorded and accused
examined himself as D.W.1 and three other witnesses as
D.Ws.2 to 4 and got marked the document as Ex.D1. The
Handwriting Expert was examined as C.W.1 and got marked
the documents as Exs.C1 to C9.
5. The Trial Court having considered the evidence of
complainant and the accused, not admitted the defence of
accused, since the accused relied upon the document of Ex.D1
and the said document was denied by the complainant. But,
Handwriting Expert given the opinion that signature belongs to
the complainant. But, the averments made in the said
document is that handwriting at Ex.D1 not belongs to the
complainant and not accepted the case of the defence, since
the same is in different handwriting and convicted the accused.
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6. Being aggrieved by the said order of the Trial Court,
an appeal is filed before the First Appellate Court in
Crl.A.No.364/2013. The First Appellate Court, having
considered the grounds urged in the appeal and on re-
appreciation of both oral and documentary evidence placed on
record, answered points for consideration as 'negative' and the
First Appellate Court also regarding payment is concerned
discussed in paragraph No.14 that in terms of Ex.D1, the
person who wrote the blue endorsed writings marked 'S1 to S8'
did not write the blue enclosed writings marked 'Q2'. Having
considered the same, the First Appellate Court comes to the
conclusion that the finding cannot be accepted in respect of
Ex.D1 is concerned and complainant also proved the case by
placing document of Cheque and no rebuttal evidence is placed,
except relying upon the document of Ex.D1 and not accepted
the document of Ex.D1 and confirmed the judgment of the Trial
Court. Being aggrieved by the concurrent finding, the present
revision petition is filed before this Court.
7. Learned counsel appearing for the petitioner would
vehemently contend that when the document of Ex.D1 is
produced and when there is an endorsement for having paid an
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amount of Rs.90,000/- i.e., the subject matter of the Cheque
amount, both the Courts committed an error in not accepting
the document of Ex.D1, when Handwriting Expert gave the
opinion that signature belongs to the complainant. Learned
counsel would vehemently contend that both the Courts
committed an error in coming to the conclusion that
handwriting not belongs to the complainant and disbelieved the
document of Ex.D1 and the same is erroneous and both the
Courts committed an error. The counsel would vehemently
contend that specific defence of the petitioner before the Trial
Court is that he borrowed an amount of Rs.37,000/- during
1997 from the complainant and issued Ex.P1 and he repaid the
entire amount in 2002-2003 with interest of Rs.90,000/- to the
complainant. For having received the said amount, the
complainant has issued receipt as per Ex.D1 and Ex.D1 is clear
that entire amount was paid and the same has not been
accepted by the Trial Court. Hence, this Court has to allow the
revision. Learned counsel also would vehemently contend that
once the document of Ex.D1 is sent to Handwriting Expert and
signature is of the complainant, the complainant has to explain
the same and further prove what made him to execute the
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document of Ex.D1, if no such amount is received and the
same has not been done and this Court has to set aside the
order of the Trial Court and the First Appellate Court.
8. Per contra, learned counsel for the respondent
would vehemently contend that the very document of Ex.D1 is
a created one and taking advantage of signature available on
the blank paper, made use of the same to show that entire
amount has been cleared. Learned counsel would vehemently
contend that when notice was issued to the accused and
served, no reply was given and instead, he contend that, he
made the payment within three days from the date of receipt of
said notice. The counsel would further contend that this Court
has to look into the writings available in Ex.D1, which is a
space adjustment in the blank paper used for creating the
document. Hence, both the Courts rightly not accepted the
document of Ex.D1, particularly taking note of handwriting
available in Ex.D1 and it does not require any interference.
9. Having heard learned counsel for the petitioner and
learned counsel for the respondent and also considering the
document, particularly Ex.D1 and also the defence of the
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revision petitioner that he made entire payment, the points that
would arise for consideration of this Court are:
(i) Whether the Trial Court committed an error
in convicting the petitioner for the offence
punishable under Section 138 of N.I. Act and
confirmation of same by the First Appellate
Court and whether it requires interference of
this Court by exercising revisional
jurisdiction?
(ii) What order?
Point No.(i)
10. Having heard respective counsel and also on
perusal of the material on record, the very case of the
complainant before the Trial Court is that the accused availed
loan of Rs.90,000/- to meet his family necessity and also issued
post-dated Cheque and when the same was presented, it was
dishonoured. It is also not in dispute, immediately after
dishonour, notice was issued and the same was served and he
did not give any reply to the notice. But, took the specific
defence in the cross-examination that he had cleared entire
loan amount which was taken in the year 1997 with interest of
Rs.90,000/-. Having considered the defence, contents of the
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complaint and also the evidence of P.W.1, the Trial Court taken
note of the same in paragraph No.13 with regard to
endorsement of taking Rs.5,000/- each through Siddamma and
Kallesha and also contention of Rs.80,000/- was paid on
29.08.2003 in terms of the endorsement, in total received an
amount of Rs.90,000/-. The Trial Court observed that according
to D.W.4, on 29.08.2003, the accused and himself had been to
the complainant's house at Kadur, where the accused has paid
a sum of Rs.80,000/- to the complainant in his presence.
Thereafter for having received Rs.90,000/-, the complainant
has issued receipt as per Ex.D1, wherein he has stated that:
"CzÉà ¢ªÀ¸À F »AzÉ PÉÆlÖ vÀ Á gÀÆ.5,000/-
UÀ¼ÀÄ ªÀÄvÀÄÛ ¢£ÁAPÀ 29-08-2003 gÀAzÀÄ PÉÆlÖ
gÀÆ.80,000/- UÀ¼À£ÀÆß ¸ÉÃj¹ MlÄÖ gÀÆ.90,000/-
PÉÆnÖgÀÄvÀÛzÉ JAzÀÄ MAzÀÄ aÃn §gÉzÀÄPÉÆnÖgÀÄvÁÛgÉ. ¸ÀzÀj
aÃnAiÀÄ£ÀÄß ¦ügÁåzÀÄzÁgÀgÀÄ £À£Àß ¸ÀªÀÄPÀëªÀÄzÀ°è
§gÉzÀÄPÉÆnÖgÀÄvÁÛgÉ. But the DW.1 in his cross-
examination he has stated that £ÉÆÃnøï vÀ®Ä¦zÀ 3
¢£ÀUÀ¼À £ÀAvÀgÀ £Á£ÀÄ ¦ügÁå¢zÁgÀgÀ£ÀÄß CªÀgÀ ªÀÄ£ÉAiÀÄ°è
¨sÉÃnAiÀiÁV C°è 90 ¸Á«gÀ gÀÆ. ªÀ£ÀÄß PÉÆlÄÖ ¤r-1
gÀ²Ã¢AiÀÄ£ÀÄß §gɹPÉÆArgÀÄvÉÛãÉ".
11. The Trial Court in detail discussed the same with
regard to the evidence of D.W.1 as well as D.W.4 and apart
from that, D.W.4 says that complainant himself wrote the
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same. But, when the Handwriting Expert has given the opinion
that the said handwriting not belongs to the complainant, both
the Courts not accepted the document of Ex.D1. The Trial Court
discussed in paragraph No.14 with regard to the payment is
concerned to the tune of Rs.90,000/- in total. The other
defence that Rs.37,000/- is borrowed in 1997 and payment was
made in 2002-2003 was also not accepted.
12. First of all, when the notice was issued, no reply
was given by the accused. If really, he has made the payment,
he would have given the reply immediately and Trial Court also
taken note of the judgment of the Apex Court in RANGAPPA
VS. MOHAN reported in 2010 SC 1898, wherein it is clear
that when notice was issued, no such reply was given and the
Court has taken note of the probable defence of the accused.
Having perused the detail order passed by the Trial Court, the
First Appellate Court while re-appreciating the material on
record taken note of the same and discussed in paragraph
No.14 and not accepted the case of the accused.
13. The main contention of the learned counsel for the
petitioner is that when endorsement was available for having
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made the payment and acknowledged the same, merely
because signature belongs to the complainant available in
Ex.D1, it cannot be considered that entire amount has been
paid. Having perused the said document, though it is stated
that complainant himself had gave such endorsement, the
same was sent to the Handwriting Expert and the Handwriting
Expert gave the opinion that the said handwriting is not of the
complainant and the version of the D.W.4 is taken note,
wherein he says that complainant wrote the same but,
Handwriting Expert opinion is clear as to that is not the
handwriting of the complainant. Hence, both the Courts
accepted the case and the same is not the probable defence. If
really the amount was paid and gave such endorsement in the
handwriting of complainant, if Handwriting Expert opinion is
that the said handwriting is of complainant, then there would
have been force in the contention of the learned counsel for the
accused, but the opinion is different. Therefore, both the Courts
not accepted the case of the complainant.
14. The scope of this revision is very limited and this
Court cannot re-appreciate the material on record. However,
this Court can consider the same, if any perversity in the
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finding of the Trial Court and the First Appellate Court in
rejecting the document of Ex.D1 for having made the payment
and based on the evidence on record, there is no perversity in
the finding of the Trial Court and the First Appellate Court. It is
also settled law that, while exercising the revisional jurisdiction,
if finding is not legal and suffers from illegality, then the Court
can exercise revisional jurisdiction. I dot not find any such
circumstance warranting in the case on hand to exercise the
revisional jurisdiction. Though Ex.D1 is relied upon by learned
counsel for the accused, the same has been elaborately
discussed in paragraph No.13 and while not accepting the case
of the defence, reasoning is given in paragraph Nos.13, 14 and
15 and well reasoned order has been passed considering the
judgment of the Apex Court in RANGAPPA's case, when notice
was given, no reply was given and defence was set up. In the
case on hand, inspite of notice being served, the accused has
not given any reply. Hence, the very contention of learned
counsel for the petitioner cannot be accepted. Therefore, I do
not find any ground to interfere with the findings of both the
Courts. However, the transaction is of the year 2005 and case
was disposed of in 2013, almost after 8 years, since C.C. of the
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year 2005 and disposed of in the month of September, 2013.
Now, almost 20 years have elapsed. Having taken note of said
fact into consideration, instead of making double the fine
amount, it is appropriate to reduce the same and instead of
ordering to pay fine amount of Rs.1,80,000/-, the same is
reduced to Rs.1,50,000/- considering the long period of
pendency of the matter.
15. In view of the discussion made above, I pass the
following:
ORDER
(i) The criminal revision petition is allowed in
part.
(ii) The judgment of the Trial Court is modified
reducing the fine amount from Rs.1,80,000/-
to Rs.1,50,000/-.
(iii) The default sentence on failure to pay the
fine amount is upheld.
Sd/-
(H.P.SANDESH)
JUDGE
ST
