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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY 2021
BEFORE
THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.562 OF 2012
BETWEEN:
H.A. Veerachari, S/o. Neelakantachari, Age 59 years, Occ: Employee in KPCL, SVP Colony, Jog Falls Sagar Taluk 577 401. ..Petitioner (By Sri. S.V. Prakash, Advocate)
AND:
Manjappa, S/o. Ningaiah Age: 47 years R/o. Marati Keri, SVP Colony, Jog Falls, Sagar Taluk 577 401.
.. Respondent (By Sri. Ganapathi, Advocate)
****
This Criminal Revision Petition is filed under Section 397 of the Code of Criminal Procedure, 1973, praying to call for the records and set aside the judgment dated 05-03-2012 in Criminal Appeal No.45/2009 passed by the Court of Fast Track - Sagar, and also the judgment dated 04-04-2009 passed by the Additional Civil Judge (Sr.Dn.) and J.M.F.C. Sagar, in C.C.No.14/2004, etc.
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This Criminal Revision Petition coming on for Final Hearing, through Physical Hearing/Video Conferencing Hearing this day, the Court made the following:
O R D E R
The present petitioner as the accused was tried by the Court of the learned Additional Civil Judge (Sr.Dn.) and J.M.F.C. at Sagar (hereinafter for brevity referred to as the “Trial Court”) in C.C.No.14/2004, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as the “N.I. Act”) and was convicted for the said offence by its judgment of conviction and order on sentence dated 04-04-2009.
Aggrieved by the same, the accused preferred a Criminal Appeal in the Court of the Fast Track Court, Sagar (hereinafter for brevity referred to as the “Sessions Judge’s Court”) in Criminal Appeal No.45/2009.
The appeal was contested by the respondent who was the complainant in the Trial Court. The Sessions Judge’s Court in its order dated 05-03-2012 dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court in C.C.No.14/2004.
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Aggrieved by the said judgment, the accused has preferred this revision petition.
The summary of the case of the complainant in the Trial Court is that, himself and accused were known to each other, since about six to eight years. Prior to the filing of the complaint, the accused had transactions with the complainant and was borrowing money whenever he was requiring the same. Likewise, the accused borrowed loan of a sum of `90,000/- from him on 06-06-2004 in order to meet his family necessities and to meet his medical expenses. He had agreed to repay the said loan amount together with interest thereupon at the rate of `1.5%, within a month. Since he did not repay the said loan amount, on the demand made by complainant for its repayment, he issued a cheque bearing No.0390655 dated 02-08-2004, in favour of the complainant, for a sum of `90,000/-, drawn on Canara Bank, Kargal Branch. When the said cheque was presented for its realisation, the same came to be returned dis-honored, with the banker’s Shara ‘funds insufficient’. Thereafter, the complainant issued a legal notice, demanding the payment of the cheque amount. However, the accused instead of repaying the cheque amount, has issued an
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untenable reply, which constrained the complainant to institute a criminal case for the offence punishable under Section 138 of the N.I. Act against the accused.
The accused appeared in the Trial Court and contested the matter through his counsel. He pleaded not guilty and claimed to be tried, as such, the Trial Court proceeded to record the evidence wherein the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-4. From the accused’s side, the accused was examined as DW-1 and as many as thirty-nine documents were got marked from Exs.D-1 to D-39.
The Trial Court after recording the evidence led before it, by its impugned judgment of conviction dated 04-04-2009 convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced him to pay a fine of `1,20,000/-, in default, to undergo simple imprisonment for six months.
Challenging the same, the accused preferred an appeal in Criminal Appeal No.45/2009 before the learned Session’s Judge’s Court, which after hearing both side, by its judgment dated
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05-03-2012, dismissed the appeal, while confirming the judgment of conviction passed by the Trial Court. Being aggrieved by the same, the accused has preferred this revision petition.
Learned counsel for the revision petitioner/accused is appearing through video conference and learned counsel for the respondent/complainant is appearing physically before the Court.
The Trial Court and Sessions Judge’s Court’s records were called for and the same are placed before this Court.
Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge’s Court’s records.
For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.
During the pendency of this matter and at the stage of arguments, the revision petitioner/accused has filed an Interlocutory Application No.1/2021, under Section 482 of the
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Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as the “Cr.P.C.”), seeking permission to produce additional documents, which are the certified copies of the plaint and written statement in Original Suit No.91/2007 on the file of the Additional Senior Civil Judge and J.M.F.C., Sagar, the certified copy of the judgment and decree dated 25-02-2010 in the O.S.No. 91/2007 and a certified copy of the judgment and decree dated 21-02-2014 in R.A.No.159/2010 passed by the learned Presiding Officer, Fast Track Court, Sagar.
The respondent/complainant has not filed his objections to the said Interlocutory Application. Though this Court specifically asked whether the respondent is willing to file his statement of objections to the said Interlocutory Application No.1/2021, learned counsel submitted that, he would not file the statement of objections, however, he opposes the said application orally. Still, he submits that the documents sought to be produced under the interlocutory application are the certified copies of the litigation which were pending adjudication between the parties with respect to the same transaction.
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In the light of the above submission of the parties, the points that arise for my consideration in this revision petition are:
[i] Whether I.A.No.1/2021 filed under Section 482 of the Code of Criminal Procedure, 1973, deserves to be allowed?
[ii] Whether the judgments under revision are perverse, illegal and erroneous, warranting interference at the hands of this Court?
It is not in dispute that the parties are acquainted with each other. In that regard, both PW-1 and DW-1, in their respective evidence, have stated that, both of them were acquainted with each other and that the complainant was running a Provisions Store. The contention of the complainant is that, on 06-06-2004, the accused had availed a hand loan of a sum of `90,000/- from him. The accused has specifically denied the same, both in the cross-examination of PW-1 as well in his evidence as DW-1. On the other hand, the accused has taken a specific contention that, it was in the year 1998, when he had to undergo a heart surgery, he had availed a loan of a sum of `6,000/- from the complainant, at which point of time, the complainant had collected a blank, but duly signed cheque from him as security and also several National Savings Certificates
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(NSCs) as security. But without returning the said cheque, even after clearance of the said loan amount, the complainant has misused it. The suggestion made to PW-1 in that regard has not been admitted as true by PW-1. However, the accused, as DW-1, in order to support his contention has got marked documents from Exhibits D-1 to D-39.
Learned counsel for the revision petitioner, in his main point of argument, canvassed a point that, the accused has seriously disputed the alleged financial capacity of the complainant to lend the alleged sum of `90,000/- which was a huge amount in the year 2004. However, the complainant has nowhere produced any material to show that he had financial capacity to lend so much of money. Thus, the presumption formed in favour of the complainant stands successfully rebutted.
He further submitted that the complainant has admitted that, the accused had given him the National Savings Certificates (NSCs) and their maturity amount of a sum of more than `17,000/- was also given to him. That would further go to show that the alleged transaction was only in the year 1998, that too, with respect to an alleged loan of a sum of `6,000/- only, but the
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alleged loan transaction of a sum of `90,000/- said to have been taken place in June 2004, is only an imaginary one.
He further submits that the four documents now sought to be produced through the present Interlocutory Application No.1/2021 also goes to show that, with respect to the very same alleged transaction of the alleged loan of `90,000/- between the parties, a money recovery suit instituted by the present complainant in O.S.No.91/2007 in the Court of the learned Senior Civil Judge at Sagar, came to be dismissed on its merit by its judgment dated 25-02-2010 and the appeal filed by the plaintiff therein (complainant herein) in R.A.No.159/2010 before the learned Fast Track Court Judge at Sagar, also came to be dismissed by its judgment dated 21-02-2014.
With this, he submits that, the said aspect and finding of the learned Senior Civil Judge's Court given after due trial also would go to show that, the alleged loan transaction dated 06-06-2004 is not proved by the plaintiff (complainant herein) before it. As such, the alleged loan transaction is an imaginary transaction and that the complainant has misused the cheque given to him in the year 1998 by the accused.
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Per Contra, learned counsel for the respondent/complainant who has not denied or disputed the correctness or authenticity of the documents now sought to be produced by the applicant through the present interlocutory application, i.e. I.A.No.1/2021, submits that, though he admits that the present complainant as a plaintiff had made a futile attempt to obtain a decree against the present accused by instituting a civil suit and the present complainant also having failed in his attempt before the first appellate Court also, he submits that in the instant case, it is a criminal case and since the accused has not denied or disputed that the cheque at Ex.P-1 is issued by him bearing his signature, the Trial Court as well the Sessions Judge’s Court have rightly convicted the accused for the offence punishable under Section 138 of the N.I. Act.
The complainant who got himself examined as PW-1, in his support, got marked copy of the returned cheque at Ex.P-1 and got marked the signatures of the accused therein at Ex.P-1(a) and (b), the endorsement issued by the banker while returning the cheque, at Ex.P-2, copy of the legal notice said to have been sent to the accused at Ex.P-3 and the postal acknowledgement at Ex.P-4. The accused has not denied these
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exhibits. On the other hand, he has admitted that Ex.P-1 is shown to have been issued by him, but specifically contended that the said cheque was not issued as a repayment towards the alleged loan dated 06-06-2004 of alleged sum of `90,000/-, but it was issued in its blank form in the year 1998 when he had availed a loan of `6000/- from the complainant to undergo heart surgery, the expected medical expenditure of which was more than a lakh of rupees. However, the complainant has not admitted the suggestions made to him in that regard in his cross-examination as true. Thus, the aspect that the drawer of the instrument at Ex.P-1 is the accused and when it was presented by the complainant has returned without realisation but with an endorsement that there was no sufficient funds in the account of the drawer( accused), thereafter the complainant has issued a legal notice to the accused, demanding the cheque amount forms a statutory presumption in favour of the complainant under Section 139 of the N.I. Act. However, the said presumption is rebuttable.
In order to rebut the said presumption, the accused, at the earliest point of time, is claimed to have sent a reply to the legal notice to the complainant, wherein, he has taken a
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contention that no loan transaction as alleged in the complaint has ever taken place and the cheque in question was issued only in the year 1998. Apart from the same, the accused herein has also produced the copies of the National Savings Certificates (NSCs.) from Exs.D-1 to D-19, alleging that those National Savings Certificates were given to the complainant as a security for the alleged loan transaction. The complainant has not specifically denied that those National Savings Certificates were given to him by the accused in the year 1998. Apart from the same, the accused has also produced a copy of his complaint said to have been lodged with the Police alleging that the complainant was harassing him to pay a sum of `90,000/-, when in fact he had not taken the loan. The complainant, in his cross- examination as PW-1, has admitted that the accused had lodged a Police complaint in that regard and the Police had summoned him to the Police Station and had recorded his statement. In that regard, the accused has also produced a copy of the complaint at Ex.D-20 and endorsement given by the Police at Ex.D-21.
In order to further draw the attention of the Court that the complainant was in the habit of lending money to various people and used to collect blank cheques from them and also used to
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harrass them for repayment of the higher amount than what was actually lent, several suggestions were made to PW-1 in his cross-examination giving the instances of several alleged loan transactions said to have taken place between the complainant and other different persons, but, PW-1 (complainant) has not admitted those suggestions as true. However, PW-1 has stated in his cross-examination that, for three or four persons he might have given the loan. However, in order to further prove that the complainant is also making use of the religious sentiments of the people and himself in order to make unlawful gain from the alleged loan transaction, the accused attempted to bring out from the evidence of the complainant that, he has approached various temples and made votive offerings towards the alleged loan transaction, which suggestion was admitted as true by the witness. In that regard, the accused has confronted several letters said to have been written by the complainant to the temple authorities and the reply by the temple authorities and got them marked at Exs.D-25 to D-28.
No doubt, these statements made by the complainant, at the maximum, would go to show that the complainant is very much eager in pursuing his attempt to recover money from the
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various people including the accused for the alleged recovery of money. Merely because the complainant is said to have approached many temples or merely because the complainant is said to have filed money recovery case or the criminal case for the alleged bouncing of the cheque against few other people, from that itself, it cannot be concluded that the alleged transaction in the present case has not taken place.
In the process of rebutting the presumption formed in favour of the complainant, the accused has also attempted to show that, the complainant had no financial capacity at the time of the alleged loan transaction to pay the said huge sum of `90,000/- in the year 2004. He has also stated that, in the year 2004, he had no occasion or reason to borrow any amount, much less a sum of `90,000/- from anyone including the complainant. In that regard, the first point the accused has confronted with the complainant is about his alleged financial capacity. The accused has questioned the financial capacity of the complainant at more than one place in his cross-examination to elicit that the complainant had no financial capacity to lend the said sum. Though the complainant has not admitted the said suggestion as true, but has stated that he was at the relevant point of time,
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running a Provisions Store with a minimum or moderate business in it. It is for the said reason, the complainant has stated that he was also an income-tax assessee, but not filed any income- tax returns. Thus, the first point, the accused could able to show that the complainant though claims to have been financially sound, was having very moderate business in his alleged Provisions Store and that he was also not an income-tax assessee.
Secondly, in the very same cross-examination of PW-1, the accused could also able to bring from the mouth of the complainant that, the complainant himself was a loanee, having availed loan of a sum of `1,00,000/- from the State Bank of Mysore at its Jog Branch on 01-04-2005. This goes to show that, at the relevant point of time, when the complainant claims that he had lent a huge sum of `90,000/- as loan to the accused, he himself was not sound in his financial condition, which made him to avail a loan of a sum of `1,00,000/- from a bank.
Thirdly, the complainant in his cross-examination has also stated that, he has also availed loan from State Bank of Mysore, Jog Branch, upto a sum of `1,00,000/- and utilised a
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sum of `25,000/- from it for the purpose of improving the Provisions Store. This goes to show that the complainant himself was a regular loanee and has availed loan for his business purposes.
Fourthly, The accused has also elicited in the cross- examination of PW-1 that, one Sri. Govindaraju was a surety for one of such loan availed by the complainant and that the complainant became a defaulter by non-repayment of the said loan, in which regard, the banker had issued him a notice. The complainant as PW-1 initially denied the suggestion that he was a defaulter, however, admitted that Govindaraju was a surety for the loan availed by him and he admitted Ex.D-33 which is a copy of the notice issued by the banker, demanding repayment of the loan amount from the present complainant. PW-1 has admitted the said notice. Thus, it goes to show that the complainant himself was in debt trap and even the banker had issued notice to him.
Fifthly, PW-1 in his cross-examination has stated that, he has documents including the accounts to show that he had financial capacity to lend `90,000/- to the accused as loan as on
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06-06-2004. In his cross-examination, he has stated that he can produce those documents to substantiate his contention. However, when he was summoned for his further cross- examination, at a later date on 18-10-2007, he has specifically stated that he has not brought any documents to produce before the Court and that he has no documents to show that he had financial capacity to lend a sum of `90,000/- as on the date of the loan. These aspects very clearly go to show that the complainant had no financial capacity to lend a sum of `90,000/- as on 06-06-2004 to the accused. In such a situation, when the complainant himself was not financially in a good and sound condition and he himself was in a debt trap and had invited notice from the banker, which had lent him money, it is improbable for him to lend a huge sum of `90,000/- to the accused on 06-06-2004. In that circumstance, the defence of the accused that the cheque which is at Ex.P-1 was given to the complainant in respect of a previous loan transaction taken place in the year 1998 between them, only as a security, proves to be more reliable. It is also for the reason that, nowhere in his evidence, PW-1 has denied the alleged loan transaction between
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himself and the accused in the year 1998, when the accused is said to have taken a hand loan of a sum of `6,000/- from him.
Added to the above, the complainant was admittedly a business person knowing the worldly affairs. According to him, he has lent money not just to the accused but also for other persons against whom also, he has initiated various litigations before different Courts of law. If that were to be the case, it is expected of him in securing any document in support of the alleged loan transaction said to have taken place on 06-06-2004. However, PW-1 in his cross-examination has stated that, he has not obtained any of the documents from the accused and no writing was made and it is only on belief, he had lent such a huge sum of money to the accused. The said statement also does not inspire confidence of this Court to believe in it for the reason that, when in their previous loan transaction said to have taken place in the year 1998, the very same complainant had collected various securities including National Savings Certificates, copies of which are from Exs.D-1 to D-19, but in the alleged subsequent loan transaction, alleged to have taken place in the year 2004, how come he kept quiet without obtaining any documents or without any documentation for an alleged loan
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transaction, that too, of a higher amount, compared to their earlier loan transactions.
These aspects have not been properly appreciated by the Trial Court as well as the learned Sessions Judge's Court in their proper perspective. On the other hand, merely by looking at Ex.P-1 - cheque, cheque return memo at Ex.P-2, and legal notice at Ex.P-3, both the Courts have jumped to a conclusion that, the complainant has proved the alleged guilt against the accused.
Since the above analysis now goes to show that, the accused by leading his evidence and also producing several documents in exhibit 'D' series and also through cross- examination of PW-1 could successfully rebut the presumption formed in favour of the complainant, and on the other hand, the complainant could not able to prove the alleged loan transaction dated 06-06-2004 between himself and the accused, it has to be necessarily held that, the complainant has failed to prove the alleged guilt against the accused.
In this background, since the respondent herein (complainant) has admitted the institution of a civil case by him
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in O.S.No.91/2007 before the learned Senior Civil Judge, Sagar and the said suit after getting dismissed by the said Court, preferring an appeal in R.A.No.159/2010 in the Court of the Fast Track, Sagar, and the said appeal also coming to be dismissed by the said Fast Track Court, the necessity of allowing the interlocutory application, i.e. I.A.No.1/2021 does not arise.
For these reasons, since the Trial Court as well as the learned Sessions Judge's Court have erred in appreciating the evidence placed before them in their proper perspective and have committed an error, which led them into giving an erroneous finding in the matter, interference by this Court through this revision petition is warranted.
Accordingly, I proceed to pass the following:- O R D E R [i] I.A.No.1/2021 is dismissed;
[ii] The Criminal Revision Petition is allowed;
[iii] The impugned judgment of conviction and order on sentence dated 04-04-2009, passed by the learned Additional Civil Judge (Sr.Dn.) and J.M.F.C., Sagar, in C.C.No.14/2004, holding the accused guilty
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of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him for the alleged offence, is set aside; Consequently, the judgment passed by the Court of the Fast Track at Sagar, dated 05-03-2012, in Criminal Appeal No.45/2009, is also set aside. [iii]
The accused – Sri. H.A. Veerachari, S/o. Neelakantachari, Age 59 years, Occ: Employee in KPCL, SVP Colony, Jog Falls, Sagar Taluk - 577 401, is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.
Registry to transmit a copy of this order to both the Trial Court and also the Sessions Judge’s Court along with their respective records forthwith.
Sd/-
JUDGE
BMV*