Karnataka High Court
Sri Purushotham M vs Sri V Ravi on 20 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 1445 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1445 OF 2021
BETWEEN:
1. SRI. PURUSHOTHAM M.,
S/O MUNI MALLAPPA
AGED ABOUT 45 YEARS
R/AT CHINNAMUTHALLI VILLAGE
HOSUR TALUK, KRISHNAGIRI-635 109.
...PETITIONER
(BY SRI. RAMACHANDRA HALINATHOTA, ADVOCATE)
AND:
1. SRI V. RAVI S/O VENKATARAMANA
AGED ABOUT 40 YEARS
R/AT 461/1, 1ST MAIN
2ND CROSS, A.S.PALYA
NEAR KITTANNA HOTEL, HAL POST,
Digitally signed
by DEVIKA M BENGALURU-560 017.
Location: HIGH ...RESPONDENT
COURT OF
KARNATAKA (BY SRI. LEELARAJU M.N, ADVOCATE [ABSENT])
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.PC PRAYING TO SETTING ASIDE THE IMPUGNED
CONCURRENT CONVICTION JUDGMENT RENDERED BY THE
APPELLANT COURT IN CRL.A.NO.25023/2021, DATED
01.12.2021 PASSED BY THE HONBLE LXXII ADDL. CITY CIVIL
AND SESSIONS JUDGE, MAYO HALL, BENGALURU AND
IMPUGNED CONVICTION JUDGMENT PASSED BY THE XV ADDL.
SMALL CAUSES COURT AND 23RD A.C.M.M., MAYO HALL,
BENGALURU IN C.C.NO.51896/2017 DATED 11.01.2021 AND
ACQUIT THE ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT.
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CRL.RP No. 1445 of 2021
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 learned counsel for the petitioner. This matter is
listed for admission and since, records are received, the matter
is considered on merits. Learned counsel for the respondent is
absent and on the previous occasion also, the counsel was
absent and this Court made it clear that, if learned counsel for
the respondent does not appear on the next date of hearing,
the matter will be heard in his absence.
2. This revision petition is fled against the conviction
and sentence passed by the Trial Court under Section 138 of
N.I. Act, wherein three months simple imprisonment as well as
fine of Rs.2,000/- is imposed and also directed to pay
compensation of Rs.4,50,000/- to the complainant and liberty
is reserved to the complainant to recover the said amount as
per Section 421 Cr.P.C, if the same is not paid. The said order
of the Trial Court is confirmed by the First Appellate Court in
Crl.A.No.25023/2021.
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3. The factual matrix of the case of the complainant
before the Trial Court is that accused is his friend. Due to
financial difficulties, the accused has approached the
complainant and borrowed a hand loan of Rs.4,00,000/- in the
month of first week of August, 2015 and promised to repay the
same within a month. Thereafter, the complainant has
approached the accused and demanded to repay the hand loan.
Towards repayment, the accused has issued a Cheque for
Rs.4,00,000/- dated 17.01.2017 and when the same was
presented, it was dishonoured with an endorsement, 'funds
insufficient'. The same was communicated to him, legal notice
was issued and the same was served and he did not comply
with the demand. Hence, private complaint was given. The
Trial Court taken cognizance, secured the accused and he did
not plead guilty and claimed for trail.
4. In order to prove the case, the complainant
examined himself as P.W.1 and got marked the documents as
Exs.P1 to P5 i.e., Cheque, bank endorsement, copy of the legal
notice, postal receipt and postal endorsement. On the other
hand, the accused examined himself as D.W.1 and one witness
as D.W.2 and got marked the documents as Exs.D1 to D3.
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5. The Trial Court having considered the evidence of
complainant and documentary evidence, comes to the
conclusion that defence was taken in the cross-examination
that complainant was running a chit transaction and in that
connection, he has issued the Cheque as security. But, during
the course of cross-examination, nothing is elicited and when
D.W.1 also examined, he did not place any material regarding
chit transaction and the witness D.W.2 is also not a member of
said chit transaction. Hence, not accepted the defence theory
of the accused and convicted and sentenced the petitioner.
6. Being aggrieved by the said order, the petitioner
filed an appeal before the First Appellate Court and the First
Appellate Court also having reassessed both oral and
documentary evidence placed on record, even extracted the
evidence of D.Ws.1 to 3 and having reassessed the material on
record, the First Appellate Court comes to the conclusion that
even though witnesses depose that there was chit transaction,
nothing is placed on record and no other subscriber of the chit
transaction has been examined before the Court. Hence, not
accepted the defence theory and confirmed the order of the
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Trial Court. Being aggrieved by the concurrent finding of both
the Courts, the present revision is filed before this Court.
7. The main contention of learned counsel for the
petitioner is that there is an admission with regard to payment
of Rs.10,000/- is concerned by the complainant and inspite of
he being elaborately cross-examined and answers are elicited
regarding earlier transaction and subscription of chit also, when
questions were put, he has not admitted the same and it is a
clear case of misusing of Cheque which had been given in
connection with the chit transaction and the same is not
accepted by the Trial Court and the First Appellate Court.
8. Learned counsel for the petitioner, in support of his
contention, relied upon the judgment in SRI DATTATRAYA
VS. SHARANAPPA reported in AIR 2024 SC 4103, wherein
with regard to dishonour of Cheque and presumption regarding
negotiable instruments, observed that financial capacity or
acknowledgement by complainant to the effect of having
advanced a loan to accused was not indicated in income tax
returns, complainant failed to prove when the said loan was
advanced and to explain as to how a Cheque issued by accused
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allegedly in favour of another person came to his hands,
complainant was not able to plead even a valid existence of
legally recoverable debt, accused had inscribed his signature on
agreement drawn on a white paper and not on a stamp paper
and accused had rebutted presumption under Section 139, the
Apex Court held that acquittal is valid. Learned counsel
referring this judgment would contend that in the case on hand,
the complainant has not declared the same in his income tax
returns. Hence, it requires interference.
9. Having heard learned counsel for the petitioner and
also principles laid down in the judgment and the reasons
assigned by the Trial Court and the First Appellate Court, the
points that would arise for consideration of this Court are:
(i) Whether both the Courts committed an error
in coming to the conclusion that complainant
has issued Ex.P1-Cheque and the same is
towards legal liability and committed an error
in not accepting the defence theory and
whether it requires interference of this Court
by exercising revisional jurisdiction and
whether the order of the Trial Court and the
First Appellate Court suffers from its legality
and correctness?
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(ii) What order?
Point No.(i)
10. Having heard learned counsel for the petitioner and
also on perusal of the material on record, it is the specific case
of the complainant that this petitioner was having acquaintance
with the complainant, since both of them are friends and the
accused had approached the complainant for availing loan of
Rs.4,00,000/- in the first week of August, 2015 and he
promised to repay, but he did not repay the amount and issued
the subject matter of Cheque dated 17.01.2017 towards
repayment. It is not in dispute that Cheque was issued and
signature in Ex.P1 is admitted and when the same was
presented, it was dishonoured is also not in dispute.
11. It is also important to note that when the Cheque
was dishonoured, notice was given and the same was served
and the accused did not give any reply. However, it is the
specific defence of the petitioner that complainant was running
chit transaction and in order to prove the factum of
complainant was running chit transaction, nothing is produced
before the Trial Court and even did not examine other
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subscriber of the chit and only he had examined the witness
D.W.2 and though, he says that in connection with chit
transaction, Cheque was given, he was not a subscriber of the
chit. The petitioner also categorically admits that, if any chit
transaction is made, normally, insist other subscriber to
become a guarantor and D.W.1 also categorically admits that
he did not offer any guarantee of any other subscriber of the
chit and with regard to chit transaction is concerned, defence
remains as defence only.
12. No doubt, learned counsel for the petitioner brought
to notice of this Court that the petitioner was a Carpenter,
suggestion was made that he was not saving money, but he
categorically says that he was saving Rs.3,000/- to Rs.4,000/-
every week, though he claims that he used to save Rs.6,000/-
every week. Having considered the principles laid down in the
judgment, no doubt in the case on hand, complainant has
declared the same in his income tax returns, to prove the fact
that he was an income tax assessee, nothing is placed on
record. Apart from that, in the decision of the Apex Court
relied upon by the learned counsel for the petitioner, the
Cheque given in favour of other person gone to the hands of
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the complainant. Hence, the Apex Court comes to the
conclusion that no reason was assigned as to how he got the
Cheque. Having considered the principles in the judgment, the
reasoning given is not applicable to the facts of the case on
hand. In the said case, signature was found in the agreement
and rebuttal evidence was led by the accused and Apex Court
comes to the conclusion that rebuttal evidence is placed before
the Court. In the case on hand, there is no rebuttal evidence
and with regard to the chit transaction is concerned, from
which account he has given the Cheque is also not
substantiated by placing any plausible evidence before the Trial
Court. The Court can accept the defence only if any answer is
elicited from the witness and answer elicited from D.Ws.1 and 3
is that nothing is placed on record to prove that there was chit
transaction between the complainant and the accused. Further,
the petitioner has not examined any other subscriber of the chit
to prove that there was chit transaction between him and the
complainant and once he admits that Cheque bears his
signature, he has to rebut the same by leading cogent evidence
and unless the presumption is rebutted, the question of coming
to other conclusion does not arise.
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13. Having reassessed the material on record, the First
Appellate Court even extracted the admission of D.W.1 and
P.W.1, while considering the material on records and the Trial
Court and the First Appellate Court not committed any error in
appreciating the evidence. The scope of revision is very limited
and only if the finding suffers from perversity and legal
infirmity, then only Court can exercise revisional jurisdiction
and the said circumstance is not warranted in the case on hand
to invoke the revisional jurisdiction. Hence, I do not find any
merit in the revision petition to come to an other conclusion.
Therefore, I answer point No.(i) as 'negative'.
Point No.(ii)
14. In view of the discussion made above, I pass the
following:
ORDER
The criminal revision petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
