Karnataka High Court

Sri Sheik Rafeeq vs Mr Manjunatha Gowda on 6 January, 2025

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                   CRL.RP No. 1503 of 2019




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 6TH DAY OF JANUARY, 2025

                                          BEFORE

                           THE HON'BLE MR JUSTICE H.P.SANDESH

                       CRIMINAL REVISION PETITION NO.1503 OF 2019

                   BETWEEN:

                   SRI SHEIK RAFEEQ
                   S/O SHEIK PAKEER SAHEB
                   AGED ABOUT 36 YEARS
                   R/AT ODALA HOUSE
                   UJIRE VILLAGE AND POST
                   BELTHANGADY TALUK
                   D K DISTRICT-575219

                                                            ...PETITIONER
                   (BY SRI JEEVAN K, ADVOCATE)
                   AND:
Digitally signed
by DEVIKA M        MR MANJUNATHA GOWDA
Location: HIGH     S/O B S LAKSHMANA GOWDA
COURT OF
KARNATAKA          AGED ABOUT 48 YEARS
                   R/AT SURALI HOUSE
                   BERALU POST AND VILLAGE
                   BELTHANGADY TALUK
                   D K DISTRICT-575 219

                                                           ...RESPONDENT

                   (BY SRI DEEPAK WAGLE, ADVOCATE FOR
                    SRI A KESHAVA BHAT, ADVOCATE)
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                                        CRL.RP No. 1503 of 2019




     THIS CRL.RP IS FILED U/S 397 (1) R/W 401 CR.PC
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION      DATED     31.10.2018    MADE     IN
C.C.NO.244/2015 BY THE COURT OF PRL. SENIOR CIVIL
AND JMFC, BELTHANGADY AND THE JUDGMENT AND
ORDER DATED 31.10.2019 MADE IN CRL.A.NO.111/2018
BY THE COURT OF PRL. DISTRICT AND SESSIONS JUDGE,
D.K., MANGALURU AND ETC.

     THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR JUSTICE H.P.SANDESH


                       ORAL ORDER

This revision petition is filed challenging the

judgment and order of conviction dated 31.10.2018

passed in C.C.No.244/2015 and the judgment and order

dated 31.10.2019 passed in Crl.A.No.111/2018.

2. This petition is listed for admission. Heard the

learned counsel appearing for the respective parties.

3. The learned counsel for the revision

petitioner/accused would vehemently contend that the

Trial Court committed an error in not considering the

documentary evidence for having made the payment of

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Rs.1,30,000/-. It is the specific case of the

petitioner/accused is that he had borrowed only

Rs.1,30,000/- and he has repaid the said amount and the

same is evident from the records at Ex.D1 and D2. The

counsel also would vehemently contend that PW1

categorically admitted in the cross-examination that

except this transaction, there is no other transaction

between the petitioner and the respondent and inspite of

the said defence, the Trial Court committed an error in

coming to the conclusion that evidence of DW1

corroborates the case of the complainant that the accused

is in the habit of issuing Cheques without sufficient funds

in the account which is the main ingredient to attract

Section 138 of N.I. Act and did not accept the defence of

the petitioner. The counsel also would vehemently

contend that the Trial Court comes to the conclusion that

the accused from his own evidence has failed to rebut the

presumption even by preponderance of probabilities and

the very approach of the Trial Court is erroneous and

committed an error in convicting the petitioner for the

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offence punishable under Section 138 of N.I. Act. The

counsel also would vehemently contend that the First

Appellate Court also failed to take note of the material

available on record even though discussed the evidence of

PW1 wherein PW1 has admitted in his cross-examination

that it was the only transaction he had, cannot be read in

isolation and this stray admission cannot be misused by

the accused/appellant nor it rebuts the legal presumption

available under Section 139 of the N.I. Act. The very

reasoning given by the First Appellate Court is also

erroneous. The counsel also would vehemently contend

that when the material evidence available before both the

Courts, both the Courts have committed an error in

convicting the petitioner for the offence punishable under

Section 138 of N.I. Act. Hence, this Court can interfere

with the finding of both the Courts exercising the

revisional jurisdiction since the very observations made by

both the Courts are erroneous.

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4. Per contra, the learned counsel appearing for

the respondent/complainant would vehemently contend

that the Court has to take note of the evidence DW1

wherein he categorically admitted in the cross-examination

that he had started the transaction in terms of Ex.C1 in

the year 2012-2013 and account is also is in existence and

he cannot tell how many Cheques he has given and how

many Cheques are dishonoured and also categorically

admits that some of the Cheques were dishonoured and

also he admitted that he had maintained two accounts in

Karnataka Bank. The counsel also brought to notice of

this Court the suggestion made to DW1 that Ex.D1 and D2

are in respect of earlier transaction between the parties to

the case and not in respect of repayment of the loan

amount and hence, both the Courts have considered the

material available on record in a proper perspective and

hence, it doesn't require any interference.

5. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

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available on record, the points that would arise for the

consideration of this Court are:

1. Whether the Trial Court and the First Appellate

Court committed an error in appreciating the

material available on record and the finding of

both the Courts are against the material

available on record and whether this Court can

exercise the revisional jurisdiction?

2. What Order?

Point No.1:

6. Having heard the learned counsel appearing for

the respective parties and also on perusal of the material

available on record, it discloses that the learned counsel

for the petitioner brought to notice of this Court that in the

complaint, nowhere stated that on what date, the amount

was borrowed, except stating that the accused had

borrowed the amount of Rs.2,00,000/- from the

complainant and the complainant had demanded for

repayment of the loan amount and the petitioner had

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issued the subject matter of cheque in the month of May

2015 and the same was dishonoured. No doubt, notice

was also issued by the complainant and the accused did

not reply to the said notice. It is the specific defence of

the petitioner that he had borrowed an amount of

Rs.1,30,000/- in the year 2013 and he had issued the

subject matter of the cheque and he had repaid the

amount of Rs.90,000/- as well as Rs.40,000/- in terms of

Ex.D1 and D2 and the complainant did not return the

subject matter of the cheque and misused the same.

7. It is important to note that in the cross-

examination of PW1, he categorically admitted that there

is no other transaction except this transaction between the

complainant and the accused and both of them are friends

having acquaintance between them from last 8 to 10

years. This admission of PW1 is not only a stray admission

as observed by the First Appellate Court since on three

occasions, he made it clear that there is no any other

transaction between the petitioner and the respondent. It

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is important to note that complainant also admitted the

receipt of Rs.1,30,000/- in terms of Ex.D1 and D2. But

only suggestion was made in the cross-examination of

DW1 that the said payment in terms of Ex.D1 and D2 is in

respect of earlier transaction and the said suggestion is

also contrary to the admission given by PW1 in the cross-

examination wherein specific answer was given by PW1

that except the subject matter of transaction, no other

transaction was took place between them. It is important

to note that the Trial Court also while passing an order

made an observation that the accused though took the

specific defence of repayment, did not rebut the evidence

of complainant and the said observation is also erroneous.

In paragraph 17, the Trial Court made an observation that

the accused from his own evidence failed to rebut the

presumption even by preponderance of probabilities. The

very observation is erroneous when the accused placed

the document of Ex.D1 and D2 and also took the specific

defence that he had only availed the loan of Rs.1,30,000/-

and he repaid the said amount in terms of Ex.D1 and D2.

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8. The First Appellate Court also committed an

error in coming to the conclusion that it is only a stray

admission and the same cannot be a stray admission. I

have already pointed out that on three occasions, PW1

gave the answer that except this loan transaction, no

other transaction between the petitioner and the

respondent. When the accused has rebutted the evidence

by placing the documentary evidence, ought to have

appreciated the same in a proper perspective. Apart from

that in the complaint, nowhere stated that on what date,

this loan transaction was taken place and in the cross-

examination of PW1, he says that loan transaction was

taken place in the month of January, 2015. But the

subject matter of cheque at Ex.C1 is dated 19.05.2015

and the said evidence is also contrary to the document at

Ex.C1. When PW1 deposed that he made the payment in

the month of January, 2015, what made him to receive

the amount of Rs.40,000/- in terms of Ex.D2 on

01.01.2015 and there is no explanation on the part of the

complainant to the documents at Ex.D1 and D2 except

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making the suggestion in the cross-examination that the

same is in respect of earlier transaction. When there is

clear admission on the part of PW1 that there was no

other transaction except the subject matter of loan

transaction, the very explanation on the part of the

complainant is also not acceptable and hence, the

petitioner has made out preponderance of probabilities by

placing the documents at Ex.D1 and D2 for having made

the payment of Rs.1,30,000/- by placing rebuttal

evidence. It is the specific case of the petitioner that he

had borrowed only Rs.1,30,000/- and the same was repaid

and PW1 also categorically admits that there are no other

transaction except the subject matter of loan transaction

since they are friends from last 8 to 10 years. When such

material is available on record, this Court is of the opinion

that the petitioner has made out a ground to exercise the

revisional powers in coming to the conclusion that both the

Courts have not appreciated the material available on

record in a proper perspective and there is perversity in

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the finding. Accordingly, I answer the above point as

affirmative.

Point No.2:

9. In view of the discussions made above, I pass

the following:

ORDER

The criminal revision petition is allowed.

The judgment and order dated 31.10.2018 passed in

C.C.No.244/2015 by the Trial Court and the judgment and

order dated 31.10.2019 passed in Crl.A.No.111/2018 by

the First Appellate Court are set aside. Consequently, the

petitioner/accused is acquitted for the offence punishable

under Section 138 of N.I. Act.