Karnataka High Court
K Damodaran vs M Shivaramareddy on 22 August, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.234 OF 2015
BETWEEN:
K. DAMODARAN S/O KRISHNAN,
AGED ABOUT 50 YEARS,
PYGMI COLLECTOR, SYNDICATE BANK,
ROBERTSON PET, K.G.F.,
KOLAR DISTRICT-563 117
....PETITIONER
(BY SRI. ABHILASH KUMAR .M.N, ADVOCATE FOR
SRI. NANJUNDA GOWDA .M.R, ADVOCATE)
AND:
M. SHIVARAMAREDDY
S/O MUNIREDDY,
AGED ABOUT 46 YEARS,
R/AT. USHA PROVISION STORES,
7TH CROSS, ROBERTSON PET, K.G.F,
KOLAR DISTRICT-563 117.
...RESPONDENT
(BY SRI. JAGADEESHA .K.J, ADVCOATE)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 OF CR.P.C. PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED
16.1.2012 PASSED BY THE SR. C.J. AND PRL. J.M.F.C., K.G.F.,
IN C.C.NO.260/2004 AND ALSO SET ASIDE THE JUDGMENT
AND ORDER DATED 31.1.2015 PASSED BY THE PRL. S.J.,
KOLAR IN CRL.A.NO.7/2012.
2
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 09.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the accused under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 challenging the judgment of conviction and order of sentence passed by Senior Civil Judge and Principal JMFC, KGF in C.C.No.260/04 and confirmed by Principal Sessions Judge, Kolar, in Crl.A.No.7/12 vide judgment dated 31.01.2015.
2. For the sake of convenience, the parties herein are referred to the original ranking occupied by them before the trial court.
3. The factual matrix leading to filing of the case are that the accused has approached the complainant on 05.05.2003 and availed a loan amount of Rs.1,75,000/- for payment of his personal debt. He has also issued a cheque dated 05.05.2003 drawn on Syndicate Bank, 3 Robertsonpet, KGF in discharge of the said debt. The complainant has presented the said cheque on 16.06.2003 and the said cheque returned with an endorsement that 'signature differs from specimen signature available in the office'. The complainant has got issued a legal notice under registered post and accused has refused the same and hence, a complaint was lodged by the complainant. On the basis of this complaint, the learned Magistrate has taken cognizance and issued process against the accused. The accused has appeared through his counsel and he was enlarged on bail. He has also denied the accusation.
4. The complainant was got examined himself as PW1 and he placed reliance on the evidence of two witnesses who were examined as PW2 and PW3. Further complainant has also placed reliance on 7 documents marked at Ex.P1 to Ex.P7.
5. After conclusion of the evidence of the complainant, the statement of the accused under Section 4 313 of Code of Criminal Procedure is recorded to enable him to explain the incriminating evidence appearing against him in the case of the complainant. The case of the accused is of total denial and he himself got examined as DW1 and further examined one witness as DW2 on his behalf. He has further placed reliance on one document marked at Ex.D1.
6. After having heard the arguments and after appreciating the oral as well as documentary evidence, the learned Magistrate has convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act' for short) and sentenced him to undergo Simple Imprisonment for a period of one year with fine of Rs.5,000/- and also awarded a compensation of Rs.1,75,000/- to the complainant.
7. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the learned Principal Sessions Judge, Kolar in 5 Crl.A.No.7/2012. The learned Sessions Judge after re- appreciating the oral and documentary evidence, dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate. Being aggrieved by these concurrent findings of both the courts below, the accused is before this court by way of this revision.
8. Heard the arguments advanced by the learned counsel for revision petitioner and learned counsel for respondent. Perused the records.
9. The learned counsel for revision petitioner would contend that though the cheque belonged to the accused, he has not admitted his signature on the cheque and the complainant has also failed to establish his financial status. He would further assert that the evidence of PW1 and PW3 in this regard is inconsistent and contrary and hence, he would contend that the presumption under Section 139 of the Act is not available to the complainant. He would contend that the cheque 6 leaf was stolen from his house and his signature has been forged. He would further assert that both the courts below have failed to appreciate these aspects and hence, he would contend that the judgment of conviction and order of sentence passed by both the courts below are perverse and arbitrary. Hence, he would seek for interference by this court.
10. Per contra, learned counsel for respondent would support the judgment of conviction and order of sentence. He would contend that though the signature on the cheque has been disputed, the conduct of the accused disclose that he went on changing his signatures. It is also asserted that the transaction has taken place in presence of PW3 and PW3 has identified the signature of accused on the cheque as it was signed in his presence. He would further assert that the defence of the accused regarding theft of the cheque was not an acceptable defence, since, no complaint was lodged and no steps were taken by the accused in this regard. Hence, he 7 would contend that both the courts below have appreciated the oral and documentary evidence in detail and have rightly convicted the accused and as such, he would seek for dismissal of the revision petition.
11. Having heard the arguments and after appreciating the oral and documentary evidence, now the following point would arise for my consideration:
(i) Whether the judgment of conviction and order of sentence passed by the trial court and confirmed by the appellate court are perverse, arbitrary or illegal so as to call for any interference by this court?
12. It is the specific contention of the complainant that accused is well acquainted to him and on 05.05.2003, he approached him at his residence for a hand loan of Rs.1,75,000/- and as such, he lent the said amount, which was available in his house and accused has issued a cheque under Ex.P1. On the contrary, it is the specific defence of the accused that the cheque was stolen from his house and the signature on the cheque 8 does not belongs to him. It is the contention of the complainant that he is working as a clerk in a B.Ed College. He also claims that his salary was Rs.2,500/- per month. He further asserts that he is also running a grocery shop in Nehru Ground and claims that he has invested Rs.4 Lakhs for his grocery business. Interestingly, he asserts that in respect of transaction of grocery shop, he has not kept any accounts.
13. As per the complainant, this transaction has taken place in the year 2003. The amount of Rs.1,75,000/- in the year 2003 was a heavy amount. Admittedly, the salary of complainant itself was hardly Rs.2,500/- per month. Though he asserts that he is running a grocery shop, the said aspect has been disputed and the complainant has not produced any documents to show that he is running a grocery shop and invested Rs.4 Lakhs for his business. Further, when he is running a grocery shop, he is bound to keep accounts of 9 income and expenses, but he claims that he has not kept any accounts.
14. In the further cross-examination, complainant has admitted that he has no other documents except Ex.P1 to show that he has advanced Rs.1,75,000/- to the accused. In the further cross-examination, he has also admitted that on the basis of pronote, he has lodged a case and in respect of cheque, he has lodged a case for Rs.35,000/- and in respect of pronote, the case was for Rs.90,000/-. This clearly disclose that the complainant is illegally doing money lending business.
15. Further the complainant has asserted that on 04.05.2003, morning at 7.00 a.m., the complainant approached him and sought a sum of Rs.1,75,000/- and he deposed that he asked him to come on the next date and on the next day, when the accused approached him, he lent the amount. He has specifically asserted that while he was lending the amount, except himself, no one was present. He asserts that in order to purchase the 10 grocery, he has kept Rs.1,75,000/- in his house and he has lent the same to the accused. It is hard to accept the fact that when the accused is not a close friend of complainant, the complainant has lent him an amount of Rs.1,75,000/- kept for his business purpose without charging any interest. How this amount was secured by the complainant is not at all disclosed and his cross- examination further disclose that he has filed a number of cases on the basis of pronote and cheque. These aspects establish that complainant is doing money lending business illegally.
16. The accused has denied his signature on the cheque itself. When the accused has denied his signature on the cheque, the initial presumption under Section 139 of the Act cannot be drawn to the case in hand. The complainant has tried to rely on the evidence of PW3 who claims that he was present during the transaction and in his presence; the accused has signed the cheque. But interestingly, the complainant in his cross-examination 11 specifically admitted that while lending the amount to the accused, no one was present. In view of this aspect, the evidence of PW3 that he was present and in his presence, accused received the amount and signed the cheque cannot be accepted. Further, PW3 asserts that as complainant has insisted the accused that he should come with any person conversant with complainant, to get the hand loan and for that purpose, he accompanied the accused. But this fact was not at all stated by the complainant and these versions are inconsistent. Even complainant no where asserted the presence of PW3. Even PW3 in his cross-examination admitted that he has also filed number of cases and he attends the court in those cases. This clearly discloses that PW3 is also doing money lending business.
17. PW2 has deposed that cheque was returned and he asserts that cheque was returned on the ground that there was no sufficient funds, but the endorsement itself disclose that cheque was returned not on the 12 ground of 'insufficiency of funds' but, 'signature differs'. Hence, the evidence of PW2 and PW3 would not assist the complainant in any way.
18. Though the accused has taken a defence regarding theft of the cheque, he has not produced any document to show that he has taken any action in this regard. However, that itself cannot be a ground to draw a presumption in favour of the complainant. Unless the complainant discharges his burden of proving that, the amount of Rs.1,75,000/- was advanced to the accused and the cheque was issued towards legally enforceable debt, the complainant is not going to succeed in this case. As observed above, the financial capacity of the complainant itself is at stake. He has not produced any documents to show regarding he running a grocery shop and his salary is hardly Rs.2,500/- per month. Hence, it can safely be presumed that he is not financially sound to advance such a huge loan. He has not produced any of his bank statements to show his financial capacity. 13
19. The complainant has also not taken any steps to secure the opinion of expert regarding the signature of the accused on disputed cheque Ex.P1. No such attempt has been made by the complainant and he tried to rely on the evidence of PW3 asserting that the accused signed Ex.P1 in his presence, but complainant himself admitted that no one was present during the said transaction. In view of the these facts and circumstances, it is evident that the complainant has failed to establish the fact that Ex.P1 bears the signature of the accused and it was issued towards legally enforceable debt. When the complainant has failed to prove the guilt of the accused beyond all reasonable doubt, question of convicting him in this regard does not arise at all only on the ground that he has failed to prove his defence. Unless the complainant initially discharges his burden, the defence of accused does not have any much relevance.
20. Both the courts below have failed to appreciate the oral as well as the documentary evidence 14 in this regard in proper perspective and have only on the basis of evidence of PW1 and PW3 came to a conclusion that the cheque was issued by the accused. Even they have not considered the financial status of the complainant to advance such huge amount. Hence, the entire approach of both the courts below is perverse and arbitrary, which has resulted in miscarriage of justice. Considering these facts and circumstances, the judgment of conviction and order of sentence passed by both the courts below call for interference. Hence, the point under consideration is answered in the affirmative and accordingly, revision petition needs to be allowed. Hence, I proceed to pass the following:
ORDER
(i) The revision petition is allowed.
(ii) The impugned judgment of conviction and order of sentence passed by Senior Civil Judge and Principal JMFC, KGF in C.C.No.260/04 and confirmed by Principal District and Sessions Judge, Kolar, in 15 Crl.A.No.7/12 vide judgment dated 31.01.2015 are set aside.
(ii) The accused is acquitted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and he is set at liberty.
(iii) The bail bond executed by the accused / revision petitioner stands cancelled.
(iv) The amount, if any, deposited by the accused / revision petitioner before this court or before the lower courts shall be refunded to him.
Sd/-
JUDGE SS