Karnataka High Court
Smt. Mangala G vs Smt H T Parvathamma on 10 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10th DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1084/2019
C/W
CRIMINAL REVISION PETITION NO.1083/2019
IN CRIMINAL REVISION PETITION NO.1084/2019:
BETWEEN:
1. SMT. MANGALA G.,
W/O. SURESH KUMAR,
AGED ABOUT 36 YEARS
R/AT NO.83, 3RD CROSS,
CHIKKAMMA BUILDING,
3RD MAIN, NAGASANDRA POST,
MANJUNATHNAGAR,
BENGALURU-560 073. ... PETITIONER
(BY SRI P. PRASANNA KUMAR, ADVOCATE)
AND:
1. SMT. LAKSHMI B.,
W/O. SATHYANARAYANA B,
AGED ABOUT 38 YEARS
R/AT NO.62, HEMALATHA BUILDING,
2ND CROSS, 6TH MAIN ROAD,
NAGASANDRA POST,
ISMAIL GARDEN,
MANJUNATHANAGAR,
BENGALURU-560 073. ... RESPONDENT
(BY SRI HARISH KUMAR M.C., ADVOCATE)
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
JUDGMENT AND ORDER OF CONVICTION DATED 02.11.2018
PASSED IN C.C.NO.8917/2016 ON THE FILE OF THE SMALL
CAUSES JUDGE AND XXVI A.C.M.M AT BENGALURU BY
CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT AND
ALLOW THE APPEAL AND ACQUIT THE PETITIONER AND TO SET
ASIDE TEH JUDGMENT AND ORDER DATED 29.06.2019 PASSED
IN CRL.A.NO.2439/2018 ON THE FILE OF THE LXV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY AND
ACQUIT THE PETITIONER FOR THE AFORESAID OFFENCE.
IN CRIMINAL REVISION PETITION NO.1083/2019:
BETWEEN:
1. SMT. MANGALA G.,
W/O SURESH KUMAR,
AGED ABOUT 36 YEARS
R/AT NO.83, 3RD CROSS,
CHIKKAMMA BUILDING,
3RD MAIN, NAGASANDRA POST,
MANJUNATHANAGAR
BENGALURU - 560 073. ... PETITIONER
(BY SRI P. PRASANNA KUMAR, ADVOCATE)
AND:
1. SMT. H.T. PARVATHAMMA
W/O NINGAIAH
AGED ABOUT 46 YEARS
R/AT NO.40, 2ND CROSS,
ISMAIL GARDEN
NAGASANDRA POST
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MANJUNATHANAGAR
BENGALURU - 560 073. ... RESPONDENT
(BY SRI NATARAJ D., ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C. PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED
02.11.2018 PASSED IN C.C.NO.1290/2016 ON THE FILE OF
SMALL CAUSES COURT AND XXVI ADDL.C.M.M., BENGALURU BY
CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT AND
ALLOW THIS CRL.RP AND ACQUIT THE PETITIONER AND TO SET
ASIDE THE JUDGMENT AND ORDER DATED 29.06.2019 PASSED
IN CRL.A.NO.2440/2018 ON THE FILE OF LXV ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU AND ACQUIT THE
PETITIONER FOR THE AFORESAID OFFECE.
THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 08.01.2025 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
1. Heard the learned counsel for revision petitioner
and also the learned counsel for respondent in both the
revision petitions.
2. These two revision petitions are filed against the
concurrent finding of conviction and sentence and taken up
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together since complaint is same and accused persons are
different but same set of facts and defenses in both the
matters. Hence, taken up for common disposal.
3. The factual matrix of case of
Crl.R.P.No.1084/2019 wherein complainant while filing the
complaint invoked offence punishable under Section 138 of
Negotiable Instruments Act. It is contended that
complainant and accused well known to each other since
several years and complainant during the month of 2nd
week of June-2015, took financial help to the tune of
Rs.5,00,000/- to fulfill the accused domestic necessities and
promised to pay the amount within 4 months, but fail to
pay the amount and hence on demand, the subject matter
of Cheque dated 15.11.2015 was issued and the same was
dishonored with an endorsement ' funds insufficient ' and
legal notice was given. The notice was returned with an
endorsement 'addressee refused' and notice sent through
speed post is not returned despite the receipt of notice,
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accused has neither paid the Cheque amount nor replied to
the same and hence filed the complaint and cognizance was
taken and the accused was summoned before the Court and
he did not plead guilty and hence, the complainant himself
examined as PW1 and got marked Ex.P1 to Ex.P10 and
accused was also subjected to 313 statement and the
accused examined himself as DW1. The Trial Court having
considered both oral and documentary evidence placed on
record, convicted the accused and sentenced a
Rs.5,25,000/-. Being aggrieved by the said judgment of
conviction and sentence, an appeal is filed in
Crl.A.No.2439/2018. The First Appellate Court on
re-appreciation of material on record, confirmed the
judgment of Trial Court.
4. In Crl.P.No.1083/2019 the case of the
complainant that both of them are known to each other and
accused sought for financial assistance of Rs.6,00,000/- for
the purpose of construction of house and the same was
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advanced and promised to repay the same within 6 months
and after lapse of 6 months, fail to pay the amount and
hence on demand issued the Cheque and the same was
returned with an endorsement ' funds insufficient ' and legal
notice was issued and refused and returned to sender and
hence complaint was filed and cognizance was taken and
accused was secured and did not plead guilty and hence,
complainant herself examined as PW1 and got marked 5
documents and accused was subjected to 313 statement
and accused examined herself as DW1. The Trial Court
having considered both oral and documentary evidence
placed on record, ordered to pay compensation of
Rs.6,30,000/-. Being aggrieved by the said conviction and
sentence an appeal is filed in Crl.A.No.2440/2018. On
re-appreciation, the First Appellate Court confirmed the
judgment and sentence and hence the present revision
petition is filed.
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5. In Crl.R.P.No.1084/2019, the counsel appearing
for the revision petitioner would vehemently contend that
there is no proof of source of income to make the payment
of Rs.5,00,000/- and no witnesses have been examined and
only relied upon the husband's passbook. It is also
contended that petitioner, respondent and also other
complainant are the members of Srisangha and Trial Court
fails to consider all these material on record and committed
an error in convicting and sentencing. The First Appellate
Court also committed an error in confirming the judgment
of the Trial Court. Hence, it requires interference.
6. In support of his argument, counsel also relied
upon the judgment reported in (2024) 8 Supreme Court
Cases 573 in case of Dattatraya V/s Sharanappa and
counsel brought to notice of this Court discussion made in
paragraph No.23 with regard to the non-existence of the
death or liability either through conclusive evidence and
also brought to notice of this Court paragraph No.29
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wherein discussion was made regarding no financial
capacity or acknowledgment in his income tax returns by
the appellant to the effect of having advanced a loan to the
respondent. The counsel by referring this judgment would
vehemently contend that this Court has to exercise the
revisional jurisdiction since both the Courts have committed
an error.
7. Per Contra, the counsel appearing for the
respondent/complainant would contend that they have not
challenged the signature though denied the same and not
sought any expert opinion. It is admitted fact that all of
them are known to each other and admitted the transaction
while making the suggestion to the witness. It is admitted
that she was running the business of tailoring and the fact
that took the premises for lease also not in dispute.The fact
that husband also not working is not in dispute and brother
of the complainant is working in abroad is also not in
dispute. The Trial Court in detail discussed the same and
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admitted cases are registered against her with regard to the
chit transaction and known cheater and no reply was given,
however, admits the notice. The Trial Court relied upon
Ex.P1 to Ex.P10 and rightly convicted and First Appellate
Court also rightly re-appreciated the material.
8. In reply to this argument, the counsel brought to
notice of this Court, the admission of PW1 in cross-
examination at page Nos.6 and 7.
9. In respect of Crl.R.P.No.1083/2019, the counsel
appearing for the revision petitioner would contend that
loan is borrowed for construction of house and no such
house was constructed and also with regard to source it is
stated that amount was paid in cash and the same was in
house. But, in the cross-examination admits that amount
was drawn from the bank but claims that having cash which
is contradictory to each other and no witnesses are
examined and admittedly she is a house wife and not a
income tax assessee. The counsel also brought to notice of
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this Court Ex.P3 dated 20.11.2015 and Ex.P5(a) when the
notice was opened on different dates and both the Courts
fails to consider the admission of PW1.
10. Per Contra, the counsel appearing for the
respondent would vehemently contend that PW1 in the
cross-examination, admitted signature that he had signed
all the Cheques. It is also contended that in the cross-
examination of PW1 suggested that amount of her husband
and her. When the source is disputed and when such
submission is made, amount belongs to her and her
husband now cannot argue contending that no source of
income. Legal notice was issued and no reply was given.
Both the Courts taken note of the material available on
record, though disputes the Cheque, not sent the same for
handwriting expert and the fact that defense is taken that
Cheque book was brought by daughter of the complainant,
but no action was taken for non return of Cheque book and
the same is admitted. Both the Courts taken note of the
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said facts into consideration and rightly convicted and
sentenced. The First Appellate Court also on
re-appreciation both oral and documentary evidence placed
on record, confirmed the same.
11. Having heard the revision petitioner's counsel
and also the counsel appearing for the respondent and also
the principles laid down in the judgment referred supra, the
points that would arise for consideration of this Court are:
1) Whether the Trial Court and First Appellate
Court committed an error in conviction and
sentence and confirming the order and
whether it requires exercising of revisional
jurisdiction in C.C.No.8917/2016 and
Crl.A.No.2439/2018?
2) Whether the Trial Court and First Appellate
Court committed an error in conviction and
sentence and confirming the order and
whether it requires exercising of revisional
jurisdiction in C.C.No.1290/2016 and
Crl.A.No.2440/2018?
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3) What Order?
Point No.1:
12. Having heard the revision petitioner's counsel
and also the counsel appearing for the respondent, it is the
case of the complainant that in the 2nd week of June,
accused had approached her for financial help of
Rs.5,00,000/- to meet her domestic need and considering
the need, she paid an amount of Rs.5,00,000/- and after
lapse of 4 months, when the complainant approached, she
has issued the subject matter of Cheque i.e., 15.11.2015
and the said Cheque was presented and dishonored and
legal notice was issued and not given any reply. It is
important to note that the main contention of the counsel
appearing for the petitioner is that no proof of source of
income.
13. The counsel for the respondent brought to notice
of this Court PW1 categorically admitted that she was
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having Rs.5,00,000/- out of her income, but no document is
produced, but relied upon the document of Ex.P7 which is
passbook of her husband. The counsel also contend that
husband's passbook is produced wherein no such amounts
are available and also material discloses that complainant
and accused are known to each other and there is a
pleading to that effect also and the same is not disputed. It
is the claim of the complainant that she is doing tailoring
business from last 15 years and photographs are also
produced as Ex.P9 that she is running tailoring shop at
Mayanna layout and also took the premises for lease.
14. It is also important to note that when the
accused examined as DW1, though denied that she is not
having any job, but categorically admits that complainant's
husband is working in the garments and also admits that
complainant was running tailoring shop at Mayanna layout
earlier, but not knows about the present, but also admits
that account was opened in the year 2014 and Cheque
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Ex.P1 belongs to her but she also admits that 2 times she
took the Cheque from the bank.
15. It is important to note that when the source is
disputed, DW1 admitted that she was doing tailoring
business and having a shop at Mayanna layout and though
denied the same, there is an admission. Apart from that
admitted the fact that husband of the complainant also
working and hence the very contention that no proof of
source cannot be accepted. It is also important to note that
she also admits that other complainant Parvathamma also
filed a case against her and also suggestion was made that
she has given Cheque to the several persons and the same
was denied, but admits that with regard to the chit
transaction is concerned, Peenya Police have registered the
case against her. It is the case of the complainant that
notice was also issued and in the cross-examination DW1,
admits that at the time of issuance of notice, she was
residing in the very same address, but though contend that
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she has not refused the same, but categorically admits that
notice was served on her mother-in-law, but no reply was
given and when no reply was given, during the course of
cross-examination, different defense was taken and in order
to prove the fact that complainant is running tailoring
business, produced the document Ex.D8 and Ex.D9 and also
admitted in the cross-examination that earlier she was
running the business, but not aware at present. These are
the facts which were taken note of by the Trial Court as well
as the First Appellate Court. The Trial Court also taken note
of the fact that though denied the Cheque does not bears
her signature and disputed the Cheque and not sent the
same for expert opinion. The First Appellate Court in
paragraph No.19 taken note of the said fact. When the
Cheque is disputed, ought to have sent the same for
handwriting expert and the same has not been sent and
also the fact that defense is taken that daughter of another
complainant Kavya collected the Cheque book from the
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bank, but she did not return the same, no complaint was
given against her and also admitted that no intimation is
given to the bank not to honor the Cheque, no action was
taken, but only a self statement is made that Cheque was
collected by one Kavya, but she did not return the Cheque
after collecting the same, but no action was taken, but all
these facts were taken note of by the Trial Court while
appreciating the material on record and in the absence of
any perverse finding, it does not requires any interference.
These are the material available on record and I do not find
any perverse finding either by the Trial Court or by the First
Appellate Court and both the Courts applied their judicious
mind and taken note of both oral and documentary
evidence placed on record and in the absence of any
perversity and when there are categorical admissions that
having acquaintance with each other and also the members
of Srishakthi Sanga, there is no any error on the part of the
Trial Court Trial Court and First Appellate Court in
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considering the material on record and hence answered the
point as negative.
POINT No.2:
16. In this revision petition, the very case of
complainant is that in order to construct the house,
borrowed an amount of Rs.6,00,000/- and did not repay the
same and on demand, issued the Cheque and the same was
returned with an endorsement. The main contention of the
counsel that no house was constructed but the fact
emerged that construction was made by her father-in-law
and also the contention that there are contradictions in the
evidence and the same has not been considered. No doubt
in the cross-examination of PW1, she has stated that
having acquaintance with each other and she is running
Srishakti Sanga, but in the very suggestion to the PW1, it is
suggested that Rs.6,00,000/- belongs to her husband and
belongs to her and the same is got admitted by the defense
counsel in the cross-examination of PW1 and also even
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suggestion was made that the said amount was kept in the
bank, but the same was denied and once the said
suggestion was made that Rs.6,00,000/- belongs to her and
her husband earned money cannot contend that there is no
any source of income. No doubt in the cross-examination
elicited regarding the Swasahaya Sangha and also admitted
that she is having a daughter by name Kavya and also
admitted that Cheque book might have been collected by
her daughter, but in the evidence of the accused herself,
categorically admitted regarding construction of the house,
but her father-in-law started construction and also admits
the case filed against her by one Lakshmi and she denies
the signature available in Ex.P1 and even suggested that
signature available in Ex.P1(a) and her Vakalath are one
and the same, but denies the same, however admits the
address mentioned in Ex.P3 and Ex.P5 belongs to her.
However, she admits she had signed all the Cheques but
only says that Ex.P1 Cheque is not belongs to her. Once she
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admits that she admits that she had signed all the Cheques
and if really Cheque does not contain her signature ought to
have sent the same for handwriting expert and no such
application was filed. Even she admits that she cannot tell
when she gave the Cheque to said Kavya, but she claims
that she demanded to return the Cheque twice, but she has
not given any complaint for having misused the Cheque and
also no notice was given and also admits that registration of
case against her in Yeshwanthpur Police Station in
connection with the chit transaction.
17. Having perused the material available on record,
it is clear that she admits having registered the case
against her in different Police Station regarding her chit
transaction and also material available on record that
though denied the signature and signatures are not sent to
the handwriting expert and also no complaint was given
when the Cheque was not returned by Kavya, the daughter
of the complainant and mere taking an assistance of
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collecting of Cheque from the bank through Kavya and the
very defense theory of the revision petitioner that Cheques
are not returned cannot be accepted, but she categorically
admitted that she had signed all the Cheques and in one
breath she claims that she signed the Cheque and other
breathe she says that she has not signed the Cheque. The
First Appellate Court taken note of the fact that when the
signature available in Ex.P1(a) is disputed, ought to have
been sent the same for handwriting expert.
18. It is also important to note that no complaint
was given against the said Kavya who is none other than
the daughter of the complainant, when the Cheque book
are not returned and also the Court has to take note of the
conduct for having registered the case against her in
different Police Station with regard to the chit transaction is
concerned and when such being the case, when both the
Courts appreciated the material available on record and
defense taken has not been substantiated by producing any
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rebuttal evidence, except examining herself and the
admissions takes away the case of the revision petitioner
and no reply was given to the notice issued to the accused
and immediately would have taken such defence in the
reply, but no such reply was given. Hence, I do not find any
ground to exercise the revisional jurisdiction. Hence, I
answered the points as Negative.
19. In view of the discussions made above, I pass
the following:
ORDER
Both the revision petitions are dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
RHS
