Karnataka High Court
Arvinda Suri vs Smt Mary Vijay on 10 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 597 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.597 OF 2019
BETWEEN:
ARVINDA SURI
S/O DEVARAJ SURI
AGED ABOUT 52 YELARS
R/AT NO.241, EMBASSY WOODS,
NO.6, CUNNINGHAM ROAD,
BENGALURU 560052.
...PETITIONER
(BY SRI SANTHOSH KUMAR M B, ADVOCATE)
AND:
Digitally signed SMT. MARY VIJAY
by DEVIKA M W/O VEEJAY CASPAR
Location: HIGH AGED ABOUT 51 YEAWRS
COURT OF
KARNATAKA R/AT NO.430, 2ND BLOCK,
THUNGABHADRA NATIONAL GAMES VILLAGE,
KORAMANGALA, BENGALURU 560 034.
...RESPONDENT
(BY SRI LAKSHMIKANTH K, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 11.09.2018 PASSED BY THE XXI A.C.M.M., AT
BENGALURU CITY IN C.C.NO.26497/2017 AND ETC.
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CRL.RP No. 597 of 2019
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 petition is filed against the judgment and order
dated 11.09.2018 passed in C.C.No.26497/2017 and the
judgment and order dated 11.04.2019 passed in
Crl.A.No.2030/2018.
2. Heard the learned counsel appearing for the
respective parties.
3. This Court earlier heard the matter in part and
deferred the matter in view of the submission made by the
counsel for the petitioner that though five cheques were
issued, repayment was made and returned the cheques
and the counsel for the respondent submits that those
cheques were not returned and the same are in the
custody of the accused and no such payments are made.
Hence, the respondent is directed to produce those
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cheques before this Court and hence, this Court,
subsequently, time was granted to produce the same and
today, the learned counsel for the respondent submits that
those cheques are with one Ahmed Khan Hussain who is
the friend of the petitioner as well as the respondent and
now, he is evading to furnish the same and inspite of
compliant was given, police have also not taken any action
against him. Hence, this Court heard the matter on
merits.
4. The factual matrix of the case of the
complainant is that both of them are well known to each
other for more than four years and the complainant and
accused agreed to invest the money in Aviation business
run by the accused. Accordingly, on 08.11.2016, the
complainant invested Rs.10,00,000/- in the business of
the accused by paying the said amount through Cheque
for Rs.6,50,000/- and by way of cash of Rs.3,50,000/- but
when the accused fails to repay the said amount, he
assured to repay the said investment amount along with
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interest as business profit at the fixed rate of 5.71% per
quarter i.e., to pay Rs.1,75,000/- per quarter and the said
profit has to pay to the complainant on or before 10th of
every quarter. It is also the contention of the complainant
that in order to ensure payment of interest/business profit
and repayment of principle investment amount of
Rs.10,00,000/-, the accused had executed an on demand
promissory note and also agreement as well as he had
issued five undated cheques by filling the amount. It is
further averred that after availing the investment amount,
the accused has failed to pay the interest or business
profit and principle amount as agreed by him and hence,
the complainant insisted for repayment of the said amount
and the accused in the first week of September 2017,
issued a Cheque for Rs.10,00,000/- and when the said
Cheque was presented, the same was returned with an
endorsement 'payment stopped by drawer'. Hence, the
complainant issued the legal notice demanding for
repayment of the amount and the said notice was served
on the accused but he failed to reply to the notice. Hence,
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the complainant lodged the complaint seeking for
penalizing the accused for the offence punishable under
Section 138 of NI Act.
5. In pursuance of summons, the accused made
appearance through his counsel and he pleaded not guilty
and claimed for trial. Hence, the complainant examined
herself as PW1 and got marked the documents at Ex.P1 to
P7. The statement of accused is recorded under Section
313 of Cr.P.C and he has not chosen to adduce any
evidence. The Trial Court having considered the material
on record comes to the conclusion that the accused has
received the amount from the complainant and failed to
pay the same and Cheque issued by the accused also
dishonoured and when legal notice was issued, reply was
not given by the accused and though the accused contend
that he has repaid the amount, no cogent evidence is
placed before the Court and hence, the Trial Court did not
accept the theory of the accused and convicted and
sentenced the accused.
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6. The First Appellate Court having considered
both oral and documentary evidence placed on record
comes to the conclusion that the complainant has placed
the sufficient material to prove his case and no rebuttal
evidence is placed by the accused and hence, the accused
has not discharged his burden by proving his case within
the provisions of Section 118 and 139 of NI Act and hence,
adverse inference can be drawn against him under Section
114(g) and 103 of Evidence Act and thus, confirmed the
judgment of the Trial Court. Being aggrieved by the
concurrent finding of both the Courts, the present revision
petition is filed before this Court by the accused.
7. The main contention of the learned counsel for
the appellant that both the Courts have committed an
error in considering material on record in a proper
perspective and also contend that the complainant has not
proved her capacity to pay the amount lent to the
accused, though accused has raised a probable defence
that an amount of Rs.3,50,000/- was not lent to the
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accused within one week from 08.11.2016, the same is
not considered by both the Courts. The counsel would
vehemently contend that the cheques which have been
issued were in the custody of the complainant and he has
repaid the loan amount but the complainant has not
returned the said cheques to the accused and the accused
is not liable to pay any amount of Rs.10,00,000/- as
contended by the counsel for the respondent. It is also
the contention of the counsel for the petitioner that the
complainant admits that she has misused the blank
Cheque which were issued as security for the transaction
and the counsel further contend that though the counsel
for the respondent contend that cheques are with the
respondent, same is not placed before the Court. The
counsel for the petitioner submits that the cheques which
have been received were also destroyed, hence, unable to
produce the same before the Court. The counsel for the
petitioner contend that this Court has to interfere with the
finding of the Trial Court.
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8. Per contra, the learned counsel appearing for
the respondent would vehemently contend that the
issuance of subject matter of the Cheque is not in dispute.
The counsel would vehemently contend that in the
complaint as well as in the notice itself, the complainant
categorically stated that though the accused had promised
to repay the amount of Rs.1,75,000/- on each quarter by
way of Cheque but he did not repay the same and those
cheques are in his custody and he had promised to use
those cheques on quarterly, but he did not repay any
amount. The contention that accused has paid the amount
cannot be accepted. The counsel also would vehemently
contend that accused also executed the agreement as well
as on demand promissory note and consideration receipt
and on demand promissory note is marked as Ex.P6 and
consideration receipt is marked as Ex.P7. The counsel
further contend that if really, accused had made the
payment, he would have taken back the said pronote as
well as consideration receipt but he has not done the
same. Inspite of service of notice also he did not give any
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reply to the said notice hence, it is very clear that after
thought, he took the specific contention that he had repaid
the amount and hence, the contention of the counsel for
the petitioner cannot be accepted.
9. 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 appreciating the material on record
in a proper perspective and the order of
both the Courts amounts to perversity and
whether it requires interference of this
Court exercising the revisional jurisdiction?
2. What order?
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Point No.1:
10. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record, it discloses that the very specific pleading of the
complainant that she had lent the amount of
Rs.10,00,000/- to the accused for his business. The fact
that the complainant had paid an amount of Rs.6,50,000/-
by way of Cheque is not in dispute. The contention that
the said amount was repaid and hence, he had collected
the cheques for Rs.1,75,000/- each and the counsel
contend that those cheques were destroyed and not placed
the same before the Court. It is also important to note
that notice was issued and same was served but an
attempt was made during the course of the argument that
notice was not served. But on perusal of 313 statement of
the accused it is clear that he categorically admitted the
issuance of notice and having accepted the notice, but no
reply was given and track consignment was also marked
as Ex.P5 in this regard. When there is a categorical
admission that he had received the notice and reply was
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not given, only after thought, he has set up the defence
that he had repaid the amount. If really he had repaid the
amount as contended by the petitioner, he would have
given the reply immediately stating he had repaid the
amount by collecting the cheques, but not produced those
cheques and contend that same has been destroyed. The
counsel for the respondent would contend that cheques
are in his custody and also the respondent not produced
the same.
11. However, having taken note of the fact that at
the time of availing the loan, executed on demand pronote
and consideration receipt and the same are marked as
Ex.P6 and P7. Having considered the Ex.P6 and P7, it
discloses that the same are for Rs.10,00,000/- and hence,
what made the accused to execute the pronote for
Rs.10,00,000/- if only an amount of Rs.6,50,000/- was
received by way of Cheque and not received the amount of
Rs.3,50,000/- by way of cash and in this regard, there is
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no explanation on the part of the petitioner and the
petitioner also not disputes the issuance of Ex.P6 and P7.
12. Having considered the statement of the
petitioner under Section 313 of Cr.P.C, it discloses that
nothing is stated with regard to repayment of the amount
and he fails to enter into the witness box. No doubt, it is a
settled law that if answers are elicited from the mouth of
PW1, no need to enter to the witness box. On perusal of
evidence of PW1 it discloses that except suggesting that
made the payment of Rs.6,50,000/-, nothing is elicited
from the mouth of PW1 except eliciting that both of them
are not the income tax assesses. In the cross-
examination, suggestion made that inspite of amount was
repaid, only with an intention to get the more interest, the
present complaint is filed and PW1 stated that nothing is
placed on record for having received the amount by the
accused and defence remains as defence when nothing is
placed on record to substantiate the contention that
amount has been repaid. On perusal of Ex.P1, it is clear
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that for an amount of Rs.10,00,000/-, a Cheque was
issued and the same was dishonoured as per Ex.P2 and
when notice was issued also, reply was not given and
hence, it is clear that only after thought, the accused has
set up the defence of repayment. When such being the
case, the order of both the Courts does not suffer from
any legality and correctness and there is no perversity and
when there is no plausible evidence before the Court, the
question of entertaining the revision petition does not
arise. Hence, I answer the above point as negative.
Point No.2:
13. In view of the discussions made above, I pass
the following:
ORDER
The petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
