Karnataka High Court
Venkatesh vs M/S Yelahanaka Merchants Finance Co on 28 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 28TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1438/2024
BETWEEN:
VENKATESH S/O PATTELLAPPA
AGED ABOUT 57 YEARS
RESIDING AT NO.393 (SY. NO.126)
N.H.207, BEERASANDRA
DEVANAHALLI TALUK
BENGALURU - 560 102. ... PETITIONER
(BY SRI. H.MALLAN GOUD, ADVOCATE)
AND:
M/S. YELAHANAKA MERCHANTS FINANCE CO.,
BYPASS B.B.ROAD, YELAHANKA
BENGALURU - 560 064
REPRESENTED BY GPA HOLDER
SMT. GIRIJA. ... RESPONDENT
(BY SRI. M. SUBRAMANI, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE
ORDER DATED 20.09.2024 PASSED IN CRL.A.NO.1614/2019 ON
THE LII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU WHICH IS PRODUCED AT ANNEXURE A AND TO SET
ASIDE THE CONVICTION ORDER DATED 24.06.2019 ON THE
FILE OF XXV ACMM AT BENGALURU IN C.C.NO.25057/2016
WHICH IS PRODUCED AT ANNEXURE B AND ETC.
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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 26.03.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
This revision petition is filed by the petitioner/accused
challenging the judgment of conviction and sentence dated
24.06.2019 passed in C.C.No.25057/2016 by the Trial Court and
the judgment of confirmation dated 20.09.2024 passed in
Crl.A.No.1614/2019 by the First Appellate Court.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the complainant
before the Trial Court that the complainant being the financial
banker had advanced a loan of Rs.1 crore by way of cash to the
accused on 22.12.2006 and the accused agreed to repay the
same on daily basis through a pigmy collector an amount of
Rs.1,000/-. But the accused did not pay the same and hence,
on demand, the accused had issued the Cheque and
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confirmation on 13.03.2007. On presentation of the said Cheque,
the same was dishonoured with an endorsement 'payment
stopped by drawer' on 28.03.2007. Thus, a demand notice was
issued on 30.04.2007 to the accused and the same was served
since the notice was sent through certificate of posting as well as
registered post but the accused did not comply the demand
notice. Hence, filed the complaint.
4. The Trial Court took cognizance and thereafter
secured the accused and accused did not plead guilty and claims
to be tried. In order to prove the case of the complainant, she
examined hermself as PW1 and got marked the documents at
Ex.P1 to P11. Accused, to rebut the case of the complainant,
examined himself as DW1 and got marked the documents at
Ex.D1 to D3 during the course of cross-examination of PW1.
Accused was subjected to 313 statement. The Trial Court
considering both oral and documentary evidence placed on
record particularly, the documents at Ex.P2 and P3 that is loan
receipt and acknowledgment and also Ex.P4-Cheque comes to
the conclusion that the accused had availed the loan of Rs.1
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crore from the complainant company and not accepted the
defence of accused that he did not avail any loan and only he
had executed the document for the purpose of availing the loan
but no such loan was given. The Trial Court comes to the
conclusion that the documents available on record disclose about
the transaction and the same has not been rebutted by the
accused by placing any cogent evidence and hence, convicted
and sentenced the accused to pay an amount of
Rs.1,02,10,150/- and out of that amount, an amount of
Rs.5,000/- is ordered to pay to the State.
5. Being aggrieved by the said judgment of conviction
and sentence, an appeal was filed by the accused in
Crl.A.No.1614/2019 and the First Appellate Court having
considered the grounds which have been urged in the appeal
discussed in detail while re-appreciating both oral and
documentary evidence placed on record and comes to the
conclusion that loan was sanctioned on 22.12.2006 and to
corroborate the same i.e., granting of loan, Ex.P2 and PW3 were
produced and the same establishes the issuance of Cheque for
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the balance amount and also acknowledgment for having
received the amount and confirmation of balance amount. Ex.P5
certainly establishes the fact of dishonour of Cheque for the
reasons stated and notice was also issued and same was sent
through RPAD as well as UCP. The Trial Court also taken note of
admission given in the cross-examination of DW1 and those
admissions will not help the defence of the accused. The First
Appellate Court also taken the contention of the accused that he
gave the Cheque to one Santhosh who was a pigmy collector of
the complainant company and the same was also given for
availing an amount of Rs.1,00,000/- as loan and extracted the
admission given by DW1 in paragraph 24 and did not accept the
defence and confirmed the judgment of the Trial Court and
dismissed the appeal. Being aggrieved by the said concurrent
finding of both the Courts, the present revision petition is filed
before this Court by the accused.
6. The learned counsel for the petitioner would
vehemently contend that first of all, PW1 was not having any
authority to depose before the Court. It is also contend that in
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substitution of PW1, a power of attorney was given to another
and the same is elicited in the cross-examination of PW1 and
inspite of it, the Trial Court committed an error in accepting the
evidence of PW1 and ought not to have consider the evidence of
PW1. The First Appellate Court also fails to take note of the said
fact and committed an error. The counsel would vehemently
contend that one Smt. Girija was examined before the Trial
Court but earlier that, there was an authorization to her but
substitution was made with one Smt. Anitha, but she was not
examined. But the earlier power of attorney holder was
examined. The order sheet dated 15.02.2018 discloses
regarding substitution and the same has not been considered by
both the Courts. The counsel also would vehemently contend
that specific defence was taken by the revision petitioner that
blank cheques are obtained by one Santhosh who was working
as pigmy collector and no loan was sanctioned and even though
no notice was served, the Trial Court committed an error in
convicting the petitioner. There was no any cause of action to file
the case. The cross-examination of PW1 probablises the case of
the accused. The counsel would vehemently contend that blank
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Cheque which has been obtained is conceded and there was no
any payment of Rs.1 crore by way of cash. It is contend that an
application was given only for loan of Rs.1,00,000/- and for
availing of said loan of Rs.1,00,000/-, cheque was given to
Santhosh and the same was not appreciated by the Trial Court.
7. Per contra, the learned counsel appearing for the
respondent would vehemently contend that Smt. Girija had filed
the complaint based on the power of attorney and the said
power of attorney is also marked as Ex.P1. Both the Courts have
given proper finding considering the evidence of both the
complainant as well as the accused and even discussion was
made with regard to eliciting the answer from PW1 as well as
DW1 and categorical admission given by DW1 also considered by
both the Courts. The counsel also would vehemently contend
that while cross-examination of PW1, a suggestion was made to
PW1 by the counsel for the accused. The counsel also would
vehemently contend that DW1 admits the issuance of Cheque
but payment was stopped and no reason was given and also not
produced any document to show that what reason was given to
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stop the payment. The counsel also would vehemently contend
that Ex.P2 and P3 are the vital documents wherein
acknowledged the receipt of Rs.1 crore and also the balance
amount as on the date of issuance of document at Ex.P2. Once
admitted the receipt of Rs.1 crore and execution of the
document of Ex.P2 and confirmed the balance in terms of Ex.P3,
no explanation was given by the accused for having executed
the said documents the same will takes away the case of the
accused. The Trial Court properly appreciated the same and the
First Appellate Court also on re-appreciation of evidence
considered the same. In paragraphs 24 and 25 of the judgment,
the First Appellate Court taken note of admission of DW1
wherein he contends that the pigmy collector collected the
Cheque and the same was discussed and even extracted the
evidence of DW1 wherein he categorically admits the signature
available in Ex.P3 and reasons are given and even signature on
the Cheque also admitted by DW1 and same is discussed in
paragraph 25 of the judgment and the First Appellate Court also
given the reason while re-appreciating the evidence and held
that no error is committed by the Trial Court. The counsel would
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vehemently contend that when both the Courts have given
finding based on the material on record, the question of
interfering with that findings by exercising revision powers does
not arise since the scope of revision is very limited.
8. In reply to the arguments of the learned counsel for
the respondent, the learned counsel for the petitioner would
vehemently contend that there is no any discussion about the
authorization and collecting of blank Cheque is admitted and the
same is also for advancing a loan of Rs.1,00,000/- and not for
Rs.1 crore and hence, contend that this Court has to exercise the
revisional jurisdiction.
9. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on record
as well as the grounds urged in the revision petition and the oral
submission of the respective counsel, the points that would arise
for the consideration of this Court are:
1. Whether both the Courts have committed an
error in convicting and sentencing the accused
for the offence punishable under Section 138
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of N.I. Act and whether the order of both the
Courts requires interference of this Court by
exercising the revisional jurisdiction?
2. What order?
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 this Court has to take note of the very case of
the complainant. The case of the complainant that the accused
had approached the complainant for financial assistance and
availed a loan of Rs.1 crore on 22.12.2006 and agreed to repay
the same and though agreed to repay the same, did not repay
the same. On repeated requests and demand, the accused
issued the subject matter of Cheque dated 13.03.2007. It is also
the case of the complainant that having availed the loan,
document of Ex.P2 was executed and confirmed the balance
amount as Rs.1,02,10,150/- by issuing the document at Ex.P3.
It is also the case of the complainant that when the Cheque was
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presented, surprisingly, came to know that payment was
stopped.
11. The complainant in order to substantiate her case,
she relied upon the document at Ex.P4-Cheque as well as Ex.P1
to P3. No doubt, in the cross-examination, it is elicited that on
29.01.2018, substitution application was filed under Section 256
regarding change of GPA and Smt.Anitha was given GPA to give
evidence and the same is admitted and even the Trial Court also
extracted the same in the discussion at paragraph 8 of the
judgment and also taken note of the answer elicited from the
mouth of DW1. Though he contend that one Santhosh was a
pigmy collector of complainant firm that he has taken the
Cheque with an intention to repay the same on the basis of
Rs.1,000/- per day. However, taken note of cross-examination
of DW1 wherein he admits issuance of Cheque and also admits
that if such cheques are issued, the same will be noted in the
books of accounts and the same was not produced before the
Court. However admits that Cheque belongs to the Tanu
Enterprises and also admits his signature in the said Cheque and
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also admits that he was in need of money but says that Cheque
was given for loan of Rs.1,00,000/- and also admits his
signature available in Ex.P2 and P3 wherein receipt is issued for
having received the money and also taken note of signature
existing on consideration receipt as well as the letter issued
along with confirmation of balance. The Trial Court taken note of
these documents particularly Ex.P2 to P4. In view of answer
elicited from the mouth of PW1 also taken note of by the Trial
Court with regard to the capacity to make the payment, the Trial
Court comes to the conclusion that though accused has been
examined as DW1 who got marked Ex.D1 to D3, an unequivocal
admission of DW1 during the course of cross-examination takes
away the defence of accused and comes to the conclusion that
presumption can be drawn and the same has not been rebutted.
12. The First Appellate Court also having reassessed the
evidence available on record, particularly as pointed out by the
counsel for the respondent/complainant, in paragraph 22 taken
note of date of loan as well as issuance of Ex.P2 and P3 and
comes to the conclusion that the same establishes the issuance
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of Cheque and also the confirmation and issuance of notice. The
Trial Court even extracted the admission given by PW1 regarding
giving an authorization. Though PW1 admits that not produced
any document for having fund of Rs.1 crore but taken note of
very consideration receipt and confirmation letter of Ex.P2 and
P3 and comes to the conclusion that the said admission will not
come in the way of appreciation of evidence.
13. It is also important to note that in paragraph 24 of
the judgment, the First Appellate Court also discussed with
regard to the issuance of Cheque in favour of pigmy collector
Santhosh and also the said Santhosh has not examined before
the Trial Court. When the accused took the specific defence that
he gave the Cheque for Rs.1,00,000/- in favour of Santhosh but
there was no any document for having given a loan application
for Rs.1,00,000/-. Apart from that stop payment instruction was
given but no reasons are assigned as contended and First
Appellate Court and the First Appellate Court also extracted the
admission given by DW1 in paragraph 24 so also taken note of
the fact that in the course of cross-examination, he has
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specifically admitted the signature on Ex.P4 as well as Ex.P2 and
P3 which clearly discloses for having received the amount of Rs.1
crore and also confirmation and also taken note of the
presumption which has been discussed in paragraph 32 of the
order of the Trial Court.
14. Having reassessed the evidence for the limited
purpose of exercising the revisional jurisdiction, though PW1
admits that GPA was given to Smt. Anitha and also the amount
was advanced on 22.12.2006 to different persons, both the
Courts taken note of the documents at Ex.P2 and P3. The
suggestion made to PW1 that they have collected the signed
Cheque and other contents are filled up by them and the same
was denied. Except this, nothing is elicited in the cross-
examination. But the fact is that GPA which is marked as Ex.P1
is clear with regard to giving of authorization and though it is
elicited that substitution was made, but, nothing is elicited in the
cross-examination of PW1 that this power of attorney was
withdrawn while substituting and only power of attorney given to
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Smt.Anitha and that will not make disentitle PW1 to give
evidence before the Court.
15. The document at Ex.P2 is very clear that having
received the amount of Rs.1 crore wherein also 18% interest
also agreed to repay the same and admits the signature as well
as issuance of confirmation letter on 23.03.2007 wherein
balance amount was also confirmed as Rs.1,02,10,150/- in
terms of Ex.P3. Ex.P4 is the Cheque having issued the Cheque
on the date of confirmation of balance amount and what made to
give these documents at Ex.P2 to P4, nothing is explained by the
accused. Ex.P8- notice is very clear for having advanced the
amount of Rs.1 crore wherein also specific mention was made
that due of Rs.1,02,10,150/-. It is the contention of the counsel
for the petitioner that notice was not served. But the fact that
notice was sent through RPAD as well as certificate of posting
and Ex.P9 and P10 evidence the said fact.
16. It is important to note that in the cross-examination,
categorically admits that if such notices are given to the address
mentioned in the document, the same will be served and the
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same was also taken note of by the Trial Court. It is also
important to note that letter was addressed to the postal
department in terms of Ex.P11 and there is an endorsement on
the part of Sub-Post Master having acknowledging the same and
hence, the admission given by DW1 takes away his case. He
admits the issuance of Cheque so also books of accounts stating
that if any Cheque was given, the same will be entered in the
books of accounts and no difficulty to produce the same. If such
Cheque was not given for liability, he would have produced the
same. He also admits that he was in need of money but says
that he has given an application for Rs.1,00,000/- and though
contend that not having any acquaintance with the complainant
but clear admission was given that in connection with loan,
having the acquaintance with the complainant and also
categorically admits that while signing the document, he would
know the contents of the document and then only he would sign
the same and admits Ex.P2 and P3 wherein clear statement is
made having received the amount of Rs.1 crore and also
acknowledging the balance but claims that documents at Ex.P2
and P3 were in printed form and admits that he knows the
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contents of Ex.P2 and P3 and also he was aware of the same and
also categorically admits that if any notice is sent to the
particular address, notice will be served to him. When the
suggestion was made that while availing the loan also very same
address was given but admits that the same address was given
as well as another address as 315/8. He categorically admits
that he did not take any action against Santhosh when he did
not get the loan and also not taken any steps even after the
receipt of summons from the Court against the said Santhosh as
well as the complainant. All these materials were also taken note
of by both the Courts. When such materials were considered by
both the Courts, the question of exercising the revisional
jurisdiction does not arise since there is no any perversity in the
finding of both the Courts. The scope of revision is very limited.
Only if any perversity is found, this Court can interfere with the
reasoning of both the Courts.
17. The main contention of the counsel for the petitioner
that there was no any authorization. But the fact that Ex.P1 is in
existence and the same is not in dispute. The only substitution
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power of attorney was given to Smt. Anitha, but she was not
examined. On the other hand, again, the power of attorney
holder i.e., PW1 was examined before the Court and she was
having acquaintance with the factual aspects of the case. When
there is no material to show that Ex.P1 was withdrawn by the
complainant company and such material was taken note of by
both the Courts and even both the Courts have extracted the
admission given by DW1 with regard to the substitution is
concerned, the very contention of the counsel for the petitioner
that both the Courts have not discussed the same cannot be
accepted.
18. Having considered the other ground of the learned
counsel for the petitioner that the blank Cheque was given to
one Santhosh and not in favour of the complainant and the said
contention cannot be accepted for the reason that Ex.P2 and P3
are in respect of execution of the same for having received an
amount of Rs.1 crore as well as acknowledgment executed by
the petitioner and the same has not been disputed and no
probable defence has been raised by the accused. When such
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material is available on record, the presumption lies in favour of
the complainant and the same has not been rebutted by the
accused placing any cogent evidence except taking the defence
that Cheque was given in favour of Santhosh and this Court
already made an observation that the said Santhosh has not
been examined before the Trial Court. When such being the
case, there are no materials to exercise the revisional
jurisdiction since the scope and ambit of the revision is very
limited. Hence, I answer the above point as negative.
Point No.2:
19. In view of the discussions made above, I pass the
following:
ORDER
The revision petition is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
SN
