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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.523/2019
BETWEEN:
SRI A. HEMANTHA KUMAR S/O SRI M. AMARCHAND BARLOTA AGED ABOUT 30 YEARS R/AT NO 244, OPH ROAD, BENGALURU – 560051.
...PETITIONER
(BY SMT.M.RAJESHWARI, ADVOCATE FOR SRI R.B.SADASIVAPPA, ADVOCATE)
AND:
SRI HARSHITH REDDY S/O SRI KESHAVA REDDY AGED ABOUT 28 YEARS R/AT NO 463, 5TH MAIN, ANANDA NAGARA, HEBBAL POST, BENGALURU – 560024.
...RESPONDENT
(BY SRI N.DEVENDRA, ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT DATED 18.03.2019 PASSED BY THE LV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-56) IN CRL.A.NO.676/2017 AND ALSO THE ORDER DATED 18.04.2017 PASSED BY THE XV ADDL.C.M.M., BENGALURU IN C.C.NO.17857/2016 AND CONSEQUENTLY DISMISS THE COMPLAINT FILED BY THE RESPONDENT.
2 THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
This matter is listed for admission. Heard the learned counsel for the petitioner. Learned counsel for the respondent is absent.
The factual matrix of the case of the respondent- complainant is that the petitioner-accused and himself are friends since two years and the petitioner-accused had approached the complainant in the first week of December, 2014 and sought for hand loan of Rs.6,00,000/- for the purpose of business of Veena Jewelry and Banker. The amount of Rs.6,00,000/- was paid in the fourth week of December, 2014 and the petitioner-accused assured to repay the amount within one year.
In discharge of liability, the petitioner-accused issued cheque for Rs.6,00,000/- on 21.06.2016. When the same was presented, it has returned unpaid for the reason that ‘funds insufficient’. Hence, legal notice was issued and duly served and petitioner did not bother to make payment. Therefore,
3 complaint was filed and cognizance was taken and this petitioner was secured before the Trial Court.
The respondent-complainant, in order to prove his case, examined himself as P.W.1 and got marked the documents as Exs.P1 to P7. The petitioner has not led any evidence and did not mark any documents.
Though the P.W.1 is cross-examined, the petitioner has not led any defence evidence before the Trial Court. The Trial Court, after considering both oral and documentary evidence placed on record, accepted the case of the respondent- complainant and convicted the petitioner directing him to pay a fine of Rs.6,15,000/-. In default of payment of fine, ordered to undergo simple imprisonment for a period of one year.
Being aggrieved by the judgment of conviction and sentence, an appeal is filed in Crl.A.No.676/2017. The Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal. Hence, the present criminal revision petition is filed before this Court.
4 7. Learned counsel appearing for the petitioner would vehemently contend that the postal acknowledgement which has been produced before the Trial Court is not pertaining to the service in respect of the petitioner and there is no proper service of notice and both the Courts failed to take note of the said fact into consideration and also failed to take note of the financial capacity of the respondent-complainant to lend the amount of Rs.6,00,000/- as hand loan and there is a suppression of material before the Trial Court. Inspite of the same, both the Courts committed an error and it requires interference of this Court.
Having heard the learned counsel for the petitioner and also on perusal of the material on record, with regard to the first contention of the learned counsel for the petitioner that there was no service of notice, the Trial Court, in para No.17, discussed both oral and documentary evidence placed on record and taken note of the notice at Ex.P3 and also the postal acknowledgement at Ex.P5. Though the Trial Court comes to the conclusion that notice was served on one Subhash Bhai, nowhere it is stated, whether he is a relative but, the Trial Court has
5 taken note of the fact that no contrary address other than the address stated in Ex.P5 is produced before the Court by the respondent by adducing any evidence. Apart from that, the Trial Court has taken note of the fact that order sheet reveals that, on 08.11.2016, the accused appeared before the Trial Court and he was released on bail, consequent upon the summons issued by the Court is received by one Shaila on 24.08.2016 in the very same address. Hence, the Trial Court comes to the conclusion that notice is issued to the correct address, even though the acknowledgement is not signed by the accused and it is signed by the family members and turned down to the defence of the petitioner.
The other contention of the learned counsel for the petitioner before the Trial Court is that, in the cross-examination of P.W.1, he states that, apart from the subject matter cheque, four cheques pertaining to him had been taken by the respondent-complainant from Veena Jewelry and Banker and filed a false case. In order to substantiate the said defence also, the petitioner has not led any defence evidence and not disputed the signature found in Ex.P1-Cheque. Further, when legal notice
6 was issued, no reply was given and not set out any defence in the reply notice and gone to the extent of denying the very service of notice and no rebuttal evidence is placed before the Trial Court. When the issuance of cheque is admitted and no reply is given to the legal notice and also not led any defence evidence before the Trial Court, the question of exercising the discretion under revisional jurisdiction does not arise. This Court can exercise the discretion, if the case of the petitioner is not considered by both the Trial Court and the Appellate Court. The Appellate Court, on re-appreciation of both oral and documentary evidence placed on record, particularly in para Nos.14 to 16 discussed the case of the respondent-complainant and also observed that P.W.1 was cross-examined much in respect of income tax returns for the year 2014 and comes to the conclusion that, to disprove the contents of the complaint, nothing is elicited in the cross-examination of P.W.1 and accepted the reasoning given by the Trial Court.
Having considered the reasoning given by the Trial Court and the Appellate Court, in order to exercise the revisional jurisdiction, no rebuttal evidence is led by the petitioner-accused
7 and no doubt, the P.W.1 is cross-examined, nothing is elicited with regard to issuance of cheque. When such being the factual aspects and both the Courts have accepted the case of the respondent-complainant and the petitioner-accused has not led any rebuttal evidence to disprove the case of the respondent- complainant, it is not a fit case to admit the criminal revision petition to exercise the revisional jurisdiction.
In view of the discussions made above, I pass the following: ORDER The criminal revision petition is dismissed.
Sd/- JUDGE