Karnataka High Court
Sri Mohammed Rafi (Munna) vs T Shankaralingam on 21 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 501 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 501 OF 2020
BETWEEN:
1. SRI MOHAMMED RAFI (MUNNA)
S/O MOHIDDIN
AGED ABOUT 46 YEARS
R/AT NO.2/54, 9TH CROSS
NACHANAHALLI PALYA
MYSURU - 67.
...PETITIONER
(BY SRI. PRATHEEP K.C., ADVOCATE)
AND:
1. T. SHANKARALINGAM
S/O THILLAI NAYAGAM
AGED ABOUT 68 YEARS
R/AT NO.27, 2ND STAGE
Digitally signed
by DEVIKA M KHB COLONY, KUVEMPUNAGAR
Location: HIGH MYSURU - 78.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. S.N.A.RAM, ADVOCATE - [ABSENT])
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
20.02.2020 PASSED BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, MYSURU IN CRL.A.NO.204/2019 AND
JUDGMENT DATED 25.06.2019 PASSED BY THE II ADDITIONAL
CIVIL JUDGE AND JMFC, MYSURU IN C.C.NO.417/2015 AND
ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE
UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT.
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CRL.RP No. 501 of 2020
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 matter is listed for admission and I have heard
learned counsel for the petitioner.
2. Learned counsel for the respondent is absent on the
previous occasion and today also, learned counsel for the
respondent is absent. Hence, heard learned counsel for the
petitioner.
3. This criminal revision petition is filed against the
order of the Trial Court convicting the petitioner and sentencing
him to pay fine amount Rs.2,60,000/- and also against the
concurrent finding of the First Appellate Court.
4. The main contention of the learned counsel
appearing for the petitioner before this Court is that both the
Courts committed an error in accepting the case of the
complainant and wrongly appreciated the material which have
been placed before the Court. Learned counsel would
vehemently contend that the complainant, who has been
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examined as P.W.1 categorically admits that he was getting
pension of Rs.15,000/-. Apart from that, he was not having any
other source of income and contend that the very case of the
complainant cannot be believed. It is the specific case of the
petitioner that he borrowed a sum of Rs.1,00,000/- and the
same has been repaid in the year 2011 and therefore, without
there being legal debt, false complaint has been filed. Learned
counsel would vehemently contend that both the Courts failed
to consider the material on record and committed an error in
convicting and sentencing the petitioner.
5. Learned counsel for the petitioner in support of his
argument, relied upon the judgment of the Apex Court in
RAJESH JAIN VS. AJAY SINGH reported in (2023) 10 SCC
148 and brought to notice of this Court paragraph Nos.35 and
40 and contend that when the revision petitioner led defence
evidence and placed the document of exhibit 'D' series that the
petitioner lend money and filed the case against borrowers,
number of documents are also placed and answers are elicited
from the mouth of P.W.1. The material is also placed before
the Court that there is preponderance of probability regarding
the case of the petitioner and probable defence has been raised
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by placing document, inspite of it, both the Courts committed
an error and convicted the petitioner.
6. Having heard learned counsel for the petitioner and
also the grounds which have been urged in the revision
petition, the points that would arise for consideration of this
Court are:
(i) Whether the First Appellate Court committed
an error in concurring with the order passed
by the Trial Court and it requires interference
by exercising the revisional jurisdiction?
(ii) What order?
7. Having considered the grounds urged as well as the
principles laid down in the judgment referred supra by the
learned counsel for the petitioner, the Court has to take note of
the averments made in the complaint. The specific averment
made by the complainant in the complaint is that petitioner had
borrowed an amount of Rs.2,00,000/- for the repayment of
loan borrowed by the complainant and issued a Cheque in the
month of May, 2011. He had promised that the Cheque would
be honoured, but the same was dishonoured, when it was
presented before the bank. Hence, legal notice was issued and
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reply was given. When he did not repay the amount, complaint
was filed and the Trial Court taken cognizance and proceeded
to conduct trial and accordingly, the complainant examined
himself as P.W.1 and marked the documents of Exhibit 'P'
series and the revision petitioner also has been examined as
D.W.1 and marked the documents of Exs.D1 to D31. The Trial
Court considered the documents and the defence of the
petitioner is that he borrowed an amount of Rs.1,00,000/- not
Rs.2,00,000/- and the same was repaid and no transaction has
taken place as contended by the petitioner and the Cheque was
not returned on repayment and misused the same. Learned
counsel also reiterates the same in his argument also.
8. Having considered the contention urged by the
petitioner and also taking note of the defence of the
complainant, he reiterated in his evidence that he got marked
the documents of Exhibit 'P' series and reply was given and
answer was elicited from P.W.1 that he was getting pension of
Rs.15,000/- and he used to lend hand loan to his friends also
other than accused. He also admits that he had filed three
cases in Mysore Court and he was managing the family with the
pension fund. Apart from that, relied upon Ex.P2 that he has
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received the retirement benefit and he gave the money in the
month of May, 2011 and the accused gave the Cheque in terms
of Ex.P1. It is also important to note that in the cross-
examination, P.W.1 admits that he also lent money to one
Muttumari and categorically admits that he had filed the case
against Muttumari and other persons and document relied upon
by the petitioner clearly disclose that financial transaction has
taken place as per the documents produced by the respondent
as Exhibit 'P' series. The main contention is that he did not had
money to lend the same to other persons. But, the fact is that
he has received the amount of Rs.1,00,000/- and the Cheque
at Ex.P1 was given for Rs.2,00,000/-.
9. The main contention of the learned counsel for the
petitioner is that amount was advanced to Mutthumari on
27.04.2011 i.e., an amount of Rs.5,00,000/-. It is also the
contention of the petitioner that the complainant had paid the
said amount of Rs.2,00,000/- to the petitioner from the amount
of Rs.5,05,000/- which he had drawn from his S.B. Account on
20.04.2011. It is further contended that the said amount of
Rs.5,05,000/- drawn from his S.B. Account on 20.04.2011 was
also paid by the respondent to one Mutturaj on 27.04.2011 as
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could be seen from Ex.D31. The said contention cannot of the
petitioner cannot be accepted merely because in Ex.D31, the
amount of Rs.5,05,000/- is being reflected, it cannot be
construed that the respondent had paid the said amount of
Rs.5,05,000/- to said Mutthumari from the amount which he
had drawn from S.B. Account on 20.04.2011. On perusal of
averments in Ex.D31, nowhere it is stated that the
respondent/complainant had paid the said amount of
Rs.5,05,000/- to one Mutthumari from the amount drawn from
his S.B. Account. Therefore, in the absence of any material
evidence to substantiate the said act, the contention putforth
by the petitioner cannot be accepted.
10. In the cross-examination of P.W.1, he also
categorically admits that complainant used to lend money to
others also and also admits that both of them were working in
Railway Department and one Mr. Manoj Kumar is known to
him. But, he claimed that he borrowed an amount of
Rs.1,00,000/- in the year 2010 and paid the amount in 2011.
But, in order to substantiate the said contention, this petitioner
has not placed any material before the Court. It is also
important to note that in the cross-examination, he
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categorically admits that when he repaid the amount, except
the complainant and family members belonging to his family,
no other persons were there. In order to substantiate the fact
that earlier there was transaction between the complainant and
the petitioner, nothing is placed on record and even for having
repaid the amount of Rs.1,00,000/-, no document is placed
before the Court. He also further admits that he took money
for his necessity, but again he says that he received the money
in 2013-2014. One breath he says that he received the money
in 2010 and claims that when amount was taken in 2013-204,
he repaid the amount within six months. Hence, the petitioner
is not firm about receipt of the amount i.e., it is only
Rs.1,00,000/- or Rs.2,00,000/- and the Cheque pertains to the
year 2012 and also admits that the amount was received in the
year 2011 and repaid the same. But, for having repaid the
same also, not having any document.
11. Apart from that, complainant has produced Ex.P2-
Bank statement for having drawn the money from the bank and
gave the money to the petitioner. When such material is
placed before the Court for having the money to pay the
amount and Cheque was also issued, the Trial Court also taken
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note of the fact that presumption can be drawn, though
petitioner relied upon the document of Exs.D1 to D31. The fact
that complainant filed the case against other person cannot be
a ground to come to an other conclusion. The fact that he had
received the money of Rs.1,00,000/- is not in dispute. But, his
contention is that not on the date of withdrawal of pensionary
benefit in the year 2011, but in the year 2010. But in order to
substantiate the said fact also, nothing is placed on record that
he had borrowed the money in 2010 and repaid in 2011 and
admission on the part of the petitioner clearly shows that he is
not having any document and he was having money to repay
the same. He only says that when he repaid, his family
members were present. Mere production of document that the
complainant filed several cases against other person cannot be
a ground to disbelieve the case of the complainant and the
same cannot be a probable case as contended by the learned
counsel for the petitioner.
12. In order to prove the contention of the petitioner
and substantiate his defence, he has to lead evidence and
produce the documents of preponderance of probability and no
such preponderance of probability is found, except stating that
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he repaid the amount and the fact that Ex.P1-Cheque was
disputed is not in dispute. Though it is not in respect of this
transaction and in respect of other transaction and there were
other transaction with the petitioner and the complainant, no
such material is placed before the Court. Hence, the very
contention of the learned counsel for the petitioner cannot be
accepted and no ground to exercise the revisional jurisdiction
and both the Trial Court and the First Appellate Court has taken
note of said fact into consideration. Even though Rs.5,00,000/-
is given to one Mutthumari and the same is not the payment
out of the amount which he had drawn and the First Appellate
Court has taken note of said fact and mere drawing of money
and advancing the amount in favour of Mutthumari and made
use the same cannot be accepted. Both the Trial Court and the
First Appellate Court has not committed any error in
appreciating the material on record. Hence, I do not find any
perversity in the finding of the Trial Court and the First
Appellate Court and it does not require interference of this
Court. Accordingly, I answer point No.(i) as 'negative'.
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Point No.(ii)
13. In view of the discussion made above, I pass the
following:
ORDER
The criminal revision petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
