Karnataka High Court
Smt. Vanajakshi P vs Sri. S M Devaraju on 4 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.318/2022
C/W.
CRIMINAL REVISION PETITION NO.319/2022
IN CRIMINAL REVISION PETITION NO.318/2022:
BETWEEN:
SMT. VANAJAKSHI P.,
W/O SHIVAKUMAR M.S.,
AGED ABOUT 52 YEARS
R/AT SLNT CLASS TEACHER
BHOVIPALYA NEW EXTENSION
OORUKERE,
TUMAKURU -572106. ... PETITIONER
(BY SRI K. SRINIVASA, ADVOCATE)
AND:
SRI. S.M. DEVARAJU
S/O LATE MALLAIAH
AGED ABOUT 61 YEARS
R/AT NO.53, (LIG), KHB COLONY
TUMAKURU TOWN-572 101. ... RESPONDENT
(BY SRI M.B.RYAKHA, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
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JUDGMENT AND ORDER DATED 31.01.2022 IN
CRL.A.NO.46/2021 PASSED BY THE HON'BLE II ADDITIONAL
DISTRICT AND SESSIONS JUDE AT TUMAKURU AND THE ORDER
DATED 30.09.2021 IN C.C.NO.4357/2016 PASSED BY THE II
ADDITIONAL CIVIL JUDGE AND JMFC AT TUMAKURU AND
ACQUIT THE PETITIONER AND ETC.
IN CRIMINAL REVISION PETITION NO.319/2022:
BETWEEN:
SMT. VANAJAKSHI P.,
W/O SHIVAKUMAR M.S.,
AGED ABOUT 52 YEARS
R/AT SLNT CLASS TEACHER
BHOVIPALYA NEW EXTENSION
OORUKERE, TUMAKURU-572106. ... PETITIONER
(BY SRI. K. SRINIVASA, ADVOCATE)
AND:
SRI. S.M.DEVARAJU
S/O LATE MALLAIAH
AGED ABOUT 61 YEARS
R/AT NO.53, (LIG) KHB COLONY
TUMAKURU-572101. ... RESPONDENT
(BY SRI. M.B.RYAKHA, 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 DATED 31.01.2022 IN
CRL.A.NO.41/2021 PASSED BY THE HON'BLE II ADDITIONAL
DISTRICT AND SESSIONS JUDE AT TUMAKURU AND THE ORDER
DATED 30.09.2021 IN C.C.NO.4356/2016 PASSED BY THE II
ADDITIONAL CIVIL JUDGE AND JMFC AT TUMAKURU AND
ACQUIT THE PETITIONER AND ETC.
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THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 12.02.2025 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
The Crl.R.P.Nos.318/2022 and 319/2022 are filed
challenging the judgment and order dated 31.01.2022 passed in
Crl.A.Nos.46/2021 and 41/2021 respectively by the First
Appellate Court and the judgment and order dated 30.09.2021
passed in C.C.Nos.4357/2016 and 4356/2016 respectively by the
Trial Court.
2. Heard the learned counsel appearing for the
respective parties.
3. The complainant and the accused are one and the
same in both the revision petitions and though independent
judgments are delivered by the Trial Court as well as the First
Appellate Court, the issue involved between the parties is one
and the same and defence is also one and the same. Hence,
both the revision petitions are taken up together for
consideration while exercising the revisional jurisdiction.
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4. The factual matrix of the case of the complainant in
C.C.Nos.4357/2016 and 4356/2016 are that the accused being
the very close relative of the complainant family and to the
complainant, had borrowed a hand loan of Rs.5,00,000/- in each
case from the complainant for her legal necessities, domestic
purposes and also for construction of the house in the month of
November and December 2014 agreeing to repay the said
amount in the month of February 2016 and in this connection,
accused has issued a post dated Cheque bearing No.537598
dated 22.02.2016 and Cheque bearing No.002936 dated
24.02.2016 for Rs.5,00,000/- in respective case and assured the
complainant to present the said Cheques in the month of
February 2016. Accordingly, the complainant presented the said
cheques and the same were dishonoured with an endorsement
'Account Closed' and hence, the complainant issued the legal
notice to the accused and same was served on her. Inspite of
service of notice, the accused failed to repay the amount as well
as replied to the said notice. Hence, the complainant lodged the
complaint against the accused under Section 138 of NI Act
before the Court and the Court has taken the cognizance in both
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the matters and secured the accused and accused did not plead
guilty and hence, trial was conducted.
5. In order to prove the case of the complainant, he
himself examined as PW1 and got marked the documents at
Ex.P1 to P5. On the other hand, accused examined herself as
DW1 but not produced any documents. The Trial Court
considering the material on record observed that the accused
admitted the issuance of Cheques and defence was set out that
those cheques were given as security to the loan obtained by the
complainant for the construction of the house and the
complainant misused the said cheques. The accused contend
that the complainant is not having any source of income to lend
the money of Rs.5,00,000/- in each case and the said defence of
the accused was not accepted by the Trial Court in coming to the
conclusion that there was no any plausible evidence and allowed
the complaint and convicted the accused for the offence
punishable under Section 138 of NI Act and sentenced to pay
fine of Rs.7,00,000/- in each case, in default, accused shall
undergo simple imprisonment for a period of six months.
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6. Being aggrieved by the judgment of conviction and
sentence, accused preferred separate appeals before the First
Appellate Court in Crl.A.Nos.46/2021 and 41/2021 and the First
Appellate Court on re-appreciation of both oral and documentary
evidence placed on record accepted the reasons given by the
Trial Court and also relied upon the judgments reported in
(2009) 2 SCC 513 in the case of KUMAR EXPORTS vs
SHARMA CARPETS, AIR 2019 SC 1983 in the case of
BASALINGAPPA vs MUDIBASAPPA, (2019) 4 SCC 197 in
the case of BIR SINGH vs MUKESH KUMAR and so also in
2021 SCC ONLINE SC 75 in the case of M/S KALAMANI TEX
AND ANOTHER vs B BALASUBRAMANIAN and comes to the
conclusion that there is no any preponderance of probabilities in
favour of accused since she admitted the issuance of Cheques
and also admitted that her husband has handed over the two
cheques to the complainant for the purpose of availing loan by
him but no document is produced to prove the said fact. In the
cross-examination, accused admitted that she has not affixed
her signature as collateral security to the loan availed by the
complainant and hence, confirmed the judgment of the Trial
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Court. Being aggrieved by the concurrent finding of both the
Courts, the present revision petitions are filed by the accused
before this Court.
7. In these revision petitions, the learned counsel for
the petitioner would vehemently contend that there was no
monetary transaction between the parties and no point of time,
the petitioner has borrowed a sum of Rs.5,00,000/- in each case
from the respondent or she had issued a alleged cheques to the
respondent for discharging of the said loan amount. The
respondent has no financial capacity to lend the loan of
Rs.5,00,000/- in each case and the respondent has not placed
any evidence to establish existence of any debt and that the
cheques in question were issued for discharge of the said debt
and also contend that the complainant failed to produce his
passbook or any other document to show that as on relevant
day, he had that much of amount to lend the same to accused
and hence, presumption drawn in favour of the complainant is
erroneous. The counsel further contends that the complainant
had misused the alleged cheques which were issued towards
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security and the same is not enforceable debt and hence, both
the Courts committed an error. The counsel contend that the
complainant says that he was a cashier, but no document is
produced to establish the said fact but, the complainant admits
that he was working as a supplier and getting the salary of
Rs.25,000/-, but no document is produced in this regard as well.
The complainant is the brother-in-law of the revision petitioner
and the counsel contend that both the Courts committed an
error in not considering the fact regarding financial capacity.
8. The learned counsel for the petitioner in support of
his arguments relied upon the judgment reported in 2024(2)
KCCR SN 139 in the case of D SIDDAPPA vs G ONKARAPPA
wherein it is held that the complainant said to be working as a
teacher in a private school and also owning agricultural land, but
failed to prove his avocation and also income from lands, failed
to produce RTC extracts in this behalf and hence, judgment of
conviction set aside.
10. The counsel also relied upon the judgment reported
in (2020) 12 SCC 724 in the case of APS FOREX SERVICES
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PRIVATE LIMITED vs SHAKTI INTERNATIONAL FASHION
LINKERS AND OTHERS and brought to notice of this Court
paragraph 8 of the judgment wherein discussion was made that
whenever accused raises issue of financial capacity of
complainant in support of his probable defence, despite
presumption in favour of complainant regarding legally
enforceable debt under Section 139, onus shifts again on
complainant to prove his financial capacity by leading evidence,
more particularly when it is case of giving loan by cash and
thereafter issuance of Cheque.
11. Per contra, the learned counsel appearing for the
respondent would vehemently contend that both the Courts have
appreciated both oral and documentary evidence placed on
record in a proper perspective and regarding source of income is
concerned, the accused already admitted that the respondent
was working as a supplier but the complainant contends that he
was working as a cashier and earning Rs.25,000/- per month as
well as he used to get Rs.1,000/- everyday as an additional
amount and apart from that he owns an agricultural land to the
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extent of four acres and same is elicited and also his case that
he was earning Rs.60,000/- to 70,000/- as agricultural income
and the learned counsel for the respondent contend that
judgments which have been relied upon by the counsel for the
petitioner not applicable to the facts of the case on hand but the
fact that he owns a land and same has not been denied.
12. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on record,
the point that would arise for consideration of this Court are:
1. Whether both the Courts committed an error
in accepting the case of the complainant that
he has lent the money and whether it requires
interference of this Court by exercising the
revisional jurisdiction?
2. What order?
Point No.1:
13. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on record,
in the complaint it is averred that the accused was in need of
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money and borrowed hand loan of Rs.5,00,000/- in each case
from the complainant for her legal necessities and also for
construction of the house in the month of November and
December 2014 agreeing to repay the same in the month of
February 2016 and issued post dated cheques and when the said
cheques were presented, the same were dishonoured with an
endorsement 'account closed' and hence, legal notice was issued
to the accused and same was served but reply was not given. In
order to prove the case of the complainant, he examined himself
as PW1 and also got marked the documents and reiterated the
complaint averments. In the cross-examination, it is elicited
that accused is his brother's wife and she is working as a school
teacher and getting salary of Rs.56,000/- per month and his
brother is also working as a driver in KSRTC. It is elicited that
firstly, the complainant gave an amount of Rs.5,00,000/- and
thereafter, accused demanded to pay additional amount since
she is having more financial commitments and again he gave the
money of further amount of Rs.5,00,000/- and he says that
amount was given in the month of February. It is suggested
that the complainant was not having any source to pay that
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much of amount and same was denied. It is suggested that the
complainant was working as a supplier and same was denied but
he claims that he is working as a cashier and also he used to get
Rs.1,000/- as an additional amount and also get the profit from
sale of water bottles and the same was given to him by the
owner, but no documents are produced to establish the said fact.
It is elicited that he was not an income tax assessee, however,
he categorically says that he was having four acres of land at
Siddapura of Madhugiri and he used to grow paddy, ragi,
groundnut and coconut trees and getting the income of
Rs.60,000/- to 70,000/- and his brother is taking care of the
land. In the cross-examination not denied the evidence of PW1
that he was not having any land. It is also admitted that Ex.P5
is with regard to service of notice. It is suggested that the
cheques are taken for security and same were misused and
same was denied.
14. Accused also examined in both the cases and set out
the same defence in both the cases. He was also subjected for
cross-examination. In the cross-examination, she admits that
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she is a Government school teacher and also admits that while
getting the loan by the complainant, she had not signed any
collateral security document and also admits that she has not
produced any document to show that the complainant had
availed the loan. However, she admits her signature in both the
cheques, but only denied the handwriting in the said cheques.
Also admits that her husband is also a Government employee
and not given any complaint with regard to misuse of the
cheques by the complainant which were given to him. It is
suggested that number of cases are filed against her and the
same was objected by the counsel, but the Court allowed to put
the question and earlier not ready to give answer and later, she
admitted that there were two to three cases filed against her.
15. Having considered the grounds which have been
urged in the revision petition as well as the arguments of the
respective counsel and also on perusal of the material on record,
this Court has to examine whether there is any perversity in the
finding of the Trial Court. Having perused the material on record,
it discloses that no dispute that Cheques were belongs to the
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revision petitioner and signature on the said cheques also not in
dispute. Her contention is that those two cheques were given as
security for the purpose of availing loan by the complainant for
construction of the house. In order to prove the fact that the
complainant had taken loan for the work of construction of
house, no document is placed. Apart from that though it is
contended that those two cheques are given as security, no
document is placed before the Court to show that the
complainant had availed loan for construction of the house and
also this petitioner stood as surety and signed any collateral
document. Hence, the very first defence that cheques were given
to avail the loan to the complainant is not substantiated and no
probable defence before the Court though examined as DW1.
The accused also not placed any documentary proof with regard
to substantiate the defence.
16. Apart from that other contention is taken before the
Court is that the complainant was not having any source to lend
so much of amount. But the fact is that he is working in the
hotel is not in dispute and suggestion was made that he was a
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supplier but he claims that he is a cashier and getting other
income and in addition to that his contention is that he is having
agricultural income. To that effect also though cross-examination
was made by the counsel for the accused, the complainant gave
the evidence that he is having land at Siddapura to the extent of
four acres and growing paddy, ragi, groundnut and also having
coconut trees and getting income of Rs.60,000/- to 70,000/-,
same was not denied in the cross-examination when PW1
answered the same and he claims that he gave the document to
show his income and denied that no such document is produced.
On perusal of the records, it discloses that no document is
produced.
17. The very case of the complainant that he is having
four acres of land and the said fact is not denied by the accused
except stating that the complainant was not having any income
to lend that much of amount. With regard to the fact of
avocation, accused himself admitted that the complainant was
working as a supplier in a hotel but the complainant claims that
he was working as a cashier. The judgment which has been
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relied upon by the counsel for the petitioner in the case of
D.SIDDAPPA referred supra it is held that complainant said to
be working as a teacher in a private school and also owning
agricultural land, but failed to prove his avocation and also
income from lands and also not produced RTC extracts in this
behalf and this judgment is not applicable to the facts of the
case on hand since with regard to avocation is concerned,
accused admitted that the complainant is working as a supplier
but complainant claims that he is a cashier and hence, avocation
is proved as the complainant may be a supplier or a cashier.
With regard to the agricultural income is concerned, though not
produced RTC, PW1 given answer that he is having four acres of
land at Siddapura, Madhugiri and the same has not been denied.
Even in the absence of RTC also, when the evidence of
complainant has not been denied, the said judgment is not
applicable to the facts of the case on hand.
18. No doubt, the counsel for the petitioner also relied
the judgment with regard to financial capacity is concerned in
the case of APX FOREX SERVICES PRIVATE LIMITED
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referred supra, wherein the Apex Court held regarding financial
capacity is concerned, in support of his probable defence,
accused has placed any material despite presumption in favour
of complainant regarding legally enforceable debt under Section
139, onus shifts again on complainant to prove his financial
capacity by leading evidence, more particularly when it is case of
giving loan by cash and thereafter issuance of Cheque. But in
the case on hand, no dispute that hand loan was given but there
is no probable defence. The very case of the petitioner is that
she gave the Cheques in order to get the loan from the bank by
the complainant, but no document of collateral security was
executed by the complainant in this regard. Apart from that the
contention of the accused that the complainant had constructed
a house, no document is placed in this regard. In addition to
that, the complainant had not availed the loan from the bank
also, no document is placed to prove the same and hence, no
probable defence is placed before the Court. Unless
preponderance of probabilities is proved before the Court, the
question of once again rebutting the same does not arise.
Hence, burden shifts on the complainant to prove does not arise
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and presumption could be drawn under Section 139 of NI Act in
the absence of any probable defence or preponderance of
probabilities. Hence, this judgment also not comes to the aid of
the accused.
19. Having considered the reasons given by the Trial
Court as well as the First Appellate Court and also considering
both oral and documentary evidence placed on record, it is
emerged that the revision petitioner is a Government school
teacher and also the relationship between the parties is sister-in-
law and brother-in-law and the case of the complainant is that
the petitioner was under financial constrains and the same is
admitted in the cross-examination and also admitted that there
are other cases against her. Though an attempt was made to
conceal the same, ultimately, she has admitted the same that
two to three cases were pending against her and so also not
disputes the issuance of Cheques. Though specific defence was
taken that those cheques were given as security in order to help
the complainant to avail the loan, to substantiate her defence
that the complainant had availed the loan and she stood as
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surety and given the documents as security, nothing is placed on
record. When the said defence was taken, burden is on the
revision petitioner to prove the same. In the case on hand, no
probable defence is placed on record and preponderance of
probabilities also not in favour of this petitioner. Hence, I do not
find any error committed by the Trial Court as well as the First
Appellate Court in convicting and sentencing this petitioner. This
Court can entertain the revision jurisdiction only if any perversity
is found in appreciating both oral and documentary evidence
placed on record and in the case on hand, no such circumstances
is warranted. Hence, I answer the above point as negative.
Point No.2:
20. In view of discussion made above, I pass the
following:
ORDER
The revision petitions are dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
SN
