Karnataka High Court
Smt. Parimala vs Smt. G Lakshmi on 20 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:2365
CRL.RP No. 691 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 691 OF 2016
BETWEEN:
1. SMT. PARIMALA
W/O MOHAN
AGED ABOUT 39 YEAS
RESIDING AT NO.162,
5TH CROSS, II MAIN ROAD,
PRAKASHNAGAR,
BANGALORE-560 021.
...PETITIONER
(BY SRI. NEHRU P., ADVOCATE)
AND:
1. SMT. G. LAKSHMI
W/O GANESH
Digitally signed AGED ABOUT 53 YEARS
by DEVIKA M NO.319/8, 5TH CROSS,
Location: HIGH 1ST MAIN, PRAKASHNAGAR,
COURT OF
KARNATAKA BANGALORE-560 021.
...RESPONDENT
(BY SRI. RAMACHANDRA NAIK R., ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE ENTIRE IMPUGNED ORDER AND
JUDGMENT PASSED BY THE XIII ADDL. C.M.M, BENGALURU IN
C.C.NO.19174/2014 DATED 02.09.2015 AND THE ORDER
DATED 27.04.2016 PASSED BY THE LXVI ADDL. CITY CIVIL
AND SESSIONS JUDGE, CCH-67, BENGALURU IN
CRL.A.NO.1239/2015.
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CRL.RP No. 691 of 2016
THIS PETITION COMING ON FOR THIS DAY, ORDER WAS
MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
1. Heard the learned counsel for revision petitioner
and the learned counsel for the respondent.
2. This revision petition is filed against the
concurrent finding of the Trial Court and also the First
Appellate Court for convicting and sentencing the revision
petitioner for the offences punishable under Section 138 of
Negotiable Instruments Act directing the revision
petitioner to pay an amount of Rs.2,55,000/- as against
the amount of Rs.2,50,000/-.
3. The factual matrix of case of the complainant
before the Trial Court that the accused being known
person to the complainant had approached the
complainant for financial assistance of Rs.2,50,000/-
during the 1st week of the January-2014 to meet her
urgent problems, assuring to repay the same within 3
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months and believing her words, the complainant had
advanced the money in favour of the accused by way of
cash. After lapse of the stipulated period, on persistent
demand, the accused had issued a Cheque dated
08.05.2014 for a sum of Rs.2,50,000/-, when the said
Cheque was presented, the same was dishonored with an
endorsement 'insufficient funds' and immediately legal
notice was issued and notice was served and accused did
not comply with the demand but gave evasive reply and
hence, filed the complaint.
4. The Trial Court taking cognizance of the
offence, allowed the complainant to examine herself as
PW1 and got marked Ex.P1 to Ex.P8. The accused
subjected to 313 statement and the accused herself
examined as DW1. The accused filed an application to
examine the daughter of the complainant as Court witness
and the Trial Court not treated as court witness but
examined her as DW2. The Trial Court having considered
the evidence of the PW1 and DW2 and documentary
evidence of Ex.P1 to Ex.P6 and also Ex.D1 and also taking
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into note of the defense of an amount of Rs.30,000/- was
received and not the amount of Rs.2,50,000/- and having
considered the signature found on the document accepted
the case of complainant and disbelieved the case of the
petitioner and convicted for the offence punishable under
Section 138 of N.I Act and directed to pay an amount of
Rs.2,55,000/- and out of that an amount of Rs.2,50,000/-
compensation is payable to the complainant. Being
aggrieved by the order of the Trial Court, an appeal is filed
in Crl.A.No.1239/2015. The First Appellate Court having
considered the material on record, re-assessed the same
and taken note of the contentions of the revision petitioner
that about 5-6 years back, she had received an amount of
Rs.3,000 to Rs.5,000/- borrowed from the complainant
and at that time the complainant used to take Cheque and
issued the cash. Accordingly in the month of October-
2012, she had received an amount of Rs.30,000/- and
agreed to repay the same within 6 months. Even after 6
months, she could not repay the loan amount because she
has suffered the loss. When she fails to pay the amount of
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compensation, misusing her signed Cheque and buildup
the same and presented the same and filed the false case.
The complainant not paid an amount of Rs.2,50,000/- and
only amount of Rs.30,000/- was paid and for misusing of
Cheque also, filed a separate complaint against the
respondent/complainant invoking Section 420 of IPC and
document of Ex.P1 is marked.
5. The First Appellate Court having considered the
defense which has been taken and also re-assessed the
material on record, comes to the conclusion that when the
signature was admitted and under circumstances in which
the Cheques are given was not established and hence
accepted the reasoning given by the Trial Court and
dismissed the appeal.
6. The counsel appearing for the revision
petitioner would vehemently contend that specific defense
is given that the revision petitioner used to take the
financial assistance from the complainant earlier and only
borrowed an amount of Rs.30,000/- and not an amount of
Rs.2,50,000/-. The counsel also would contend that when
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the notice was issued, immediately reply was given setting
forth the defense. The counsel would contend that
complainant admitted that she is doing tailoring business
and getting the income of Rs.6,000/- and highly
impossible to make the payment of Rs.2,50,000/- in
favour of the accused. The counsel would contend that the
evidence of DW2 who has been examined only says that
they were helping the mother, but no substantial material
is placed for helping the mother to advance the amount of
Rs.2,50,000/-. The Trial Court ought not to have convicted
the petitioner only on the basis of Cheque which is not
disputed. The very evidence of complainant is that
daughter is working in ITPL and in the cross-examination
DW2 says that she is a freelancer. These are the
contradictions not taken note of by the Trial Court.
7. Per Contra, the counsel appearing for the
respondent/complainant would contend that both the
complainant and accused are having acquaintance with
each other is not in dispute. Apart from that the very
revision petitioner clearly admits that petitioner used to
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take financial assistance and only defense taken is that the
Cheque which was taken earlier was misused for an
amount of Rs.2,50,000/- and no such payment was made
cannot be accepted. When the complainant has examined,
nothing is elicited from the mouth of the complainant with
regard to the misusing of the Cheque which was given
earlier and those suggestions are given and the same has
been denied. It is also contend by the counsel that a
complaint under Section 420 of IPC is filed only after the
issuance of notice against the revision petitioner herein
and not prior to the filing of the complaint. Hence, marking
of document Ex.D1 cannot be a ground to comes to a
other conclusion and hence, it does not requires any
interference.
8. Having heard the revision petitioner's counsel
and also the learned counsel for the respondent and also
having perused the material available on record, the point
that would arise for consideration of this Court are:
1) Whether the Courts below have
committed an error in convicting and
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sentencing and whether this Court can
exercise revisional jurisdiction for coming
to other conclusion?
2) What Order?
9. Having heard the revision petitioner's counsel
and also the counsel appearing for respondent, it is not in
dispute that the Cheque Ex.P1 contains the signature of
the revision petitioner and it is also not in dispute that
when the Cheque was presented and the same was
dishonored and bank was issued endorsement in terms of
Ex.P2. It is also not in dispute that notice was issued to
the revision petitioner and the same was served on the
revision petitioner and reply is given in terms of the Ex.P6.
Having perused the Ex.P6-reply notice, it is categorically
stated that revision petitioner has approached the
complainant in the year 2012 and sought for a hand loan
of Rs.30,000/- with an assurance that the said amount will
be returned to client but could not repay the same as
agreed. It is also the contention that he was paying
interest to the complaint regularly at the rate of 3% p.m.
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No doubt the reply was given and specific defense was
taken and also contend that interest was paid at the rate
of 3% p.m and no such material is placed before the Court
for having paid the interest also. It is also important to
note that in the cross-examination of DW1 categorically
admitted that the DW2 is none other than daughter of the
complainant and she speaks about only giving assistance
to the mother. Apart from that when the PW1 was
examined before the Trial Court, no doubt in the cross-
examination she admits that she was working as a tailor.
She is getting an income of Rs.6,000/- per month and also
she says that she is paying rent of Rs.6,000/- to that
house and she is not having any F.D amount in any of the
bank. It is her case that she is keeping the money of
Rs.2,50,000/- in order to get the house for lease and when
the accused demanded the money from her, she paid the
money of Rs.2,50,000/-. No doubt she also admits that
she did not obtain any promissory note or any other
documents and regarding the very defense of the revision
petitioner that she had availed an amount of Rs.30,000/-
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in the year 2012, nothing is elicited from the mouth of
PW1 when the Cheque is admitted and also on perusal of
the document of Ex.P1 and also the defense if really the
revision petitioner was paying the interest as agreed from
2012 ought to have placed any material for having paid
the interest and nothing is placed on record and when the
Cheque is admitted, Court can draw the presumption
under Section 139 of N.I Act. No doubt when the
presumption is drawn in favour of complainant and having
admitted the Cheque, burden shifts on the revision
petitioner to rebut the evidence of the complainant. In
order to rebut the contention of the revision petitioner,
except saying that she had borrowed only an amount of
Rs.30,000/- and not Rs.2,50,000/-, nothing is elicited and
also even not examined any witnesses with regard to the
lending of money only Rs.3,000/- to Rs.5,000/- by the
complainant to the revision petitioner and also the very
case of the revision petitioner that the Cheque was given
earlier and the same was misused. In order to
substantiate the contention that for misusing of the
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Cheque also nothing is placed on record except producing
the document of Ex.D1 i.e., order sheet. No doubt a
complaint is filed invoking Section 420 of IPC and in order
to substantiate the same also with regard to the misusing
of the Cheque, nothing is placed on record and the
revision petitioner ought to have placed the material of
preponderance of probabilities and with regard to the
earlier transaction is also concerned, no document is
placed before the Court. It is also the case of the revision
petitioner that earlier she used to receive the money
Rs.3,000/- to Rs.5,000/-, but the very contention that she
had availed the loan of Rs.30,000/- is not disputed, but
only contention that instead of Rs.30,000/- made use of
Cheque and misused the same for an amount of
Rs.2,50,000/- and unless any preponderance of
probabilities are placed before the Trial Court, I do not find
any error committed by the Trial Court and also the First
Appellate Court in appreciating the evidence, only self
styled statement that he had borrowed only Rs.30,000/-
cannot be accepted and the fact that borrowed the money
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is not in dispute and only dispute is with regard to the
quantum of amount is concerned and only contention that
borrowed Rs.30,000/- and not an amount of Rs.2,50,000/-
and the same is also not substantiated by placing any
preponderance of probability and admitted that no
complaint is given when the Cheque was misused and no
steps also taken, when such being the case, I do not find
any error committed by the Trial Court in appreciating
both oral and documentary evidence placed on record and
the very contention and defense of the revision petitioner's
counsel cannot be accepted. Hence, I answer the point as
negative.
10. In view of the discussions made above, I pass
the following:
ORDER
The Revision Petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
