Karnataka High Court
Chandrshekharayya Puttayya Hiremath vs Suresh Siddanagouda Hosagoudar, on 28 January, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.2231/2011
BETWEEN:
CHANDRASHEKHARAYYA PUTTAYYA HIREMATH
AGE: 53 YEARS, OCC:AGRICULTURE,
R/O DASANAKOPPA,
TQ:BYADAGI, DIST:HAVERI.
...PETITIONER
(BY SRI.NAGARAJ APPANNAVAR FOR SRI. T. LAXMA T
MANTAGANI, ADVOCATES)
AND:
SURESH SIDDANGOUDA HOSAGOUDAR
AGE:41 YEARS, OCC:AGRICULTURE,
R/O DASANAKOPPA,
TQ: BYADAGI, DIST:HAVERI.
...RESPONDENT
(BY SRI.CHETHAN MUNOLLI, FOR SRI. ARAVIND D KULKARNI,
ADVOCATES)
THIS REVISION PETITION IS FILED UNDER SECTION 397
READ WITH 401 OF Cr.P.C. SEEKING TO SET-ASIDE THE
JUDGMENT AND ORDER DATED 20.07.2011 IN CRL.A.
NO.1/2009 PASSED BY THE COURT OF SESSIONS JUDGE (FAST
TRACK) AT HAVERI, CONFIRMING THE ORDER PASSED BY THE
ADDL. JMFC, HAVERI IN CC NO.137/2006 DATED 24.12.2008.
THIS REVISION PETITION COMING ON FOR FINAL
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
Heard the revision petitioner's counsel and learned counsel for the respondent.
2. The revision petitioner is the accused before the trial Court for th eoffence punishable under Section 138 of Negotiable Instruments Act and the trial Court after recording the evidence of the complainant and other two witnesses and also the evidence of DW1, Exs.P1 to P13 and Exs.D1 and D2, convicted the accused for the offence punishable under Section 138 of NI Act and sentenced him to undergo simple imprisonment for six months and to pay fine of Rs.2,000/-and further directed to pay compensation of Rs.48,000/- and out of that the complainant is entitled to receive Rs.24,000/- as compensation. Being aggrieved by the judgment of the trial Court dated 24.12.2008, the petitioner herein has filed Crl.A. No.1/2009 and the first appellate Court vide order 3 dated 20.07.2011 confirmed the judgment of the conviction and sentence.
3. Being aggrieved by the order of the first appellate Court, the present revision petition is filed contending that the first appellate Court failed to appreciate the very provision of Sections 138 and 139 of NI Act and wrongly shifted the burden on the petitioner to prove that his cheque book was lost and it was forged by the complainant/respondent. The other contention is that both the Courts below failed to consider that the respondent was not capable of lending money as he was not at all financially sound, except an agricultural income out of his share of 30 guntas of land, no other source of income. The other contention is that the Courts below failed to consider the disputed signature of the petitioner on the alleged cheque and failed to send for comparing the disputed signature with that of admitted signature to the handwriting experts and the 4 Courts below totally ignored to consider the issue that the petitioner was lost the cheque book on 4.8.2005 while traveling in a bus and to the said effect, the petitioner was also intimated his banker on 5.8.2005 through Certificate of Posting vide Ex.D1 and D2. The Courts below failed to appreciate even after he felt that the accused may cheat him while advancing Rs.24,000/- to the petitioner/accused on 15.11.2005, as earlier advanced amount of Rs.50,000/- was not repaid. Thus, under the given circumstances, no prudent man would advance a loan even after knowing that the person is a cheater. Hence, it is nothing but a false case filed against the petitioner, and he prayed this Court to set-aside the orders of the Courts below.
4. The counsel for the revision petitioner reiterating the grounds urged in the petition relied upon the evidence of PW1 to 3 and DW1 and contends that it is specific case of the revision petitioner that he has lost 5 the cheque book while traveling in the bus and further, the signature of this petitioner is forged by the complainant and these facts are not considered by both the Courts below. The revision petitioner's counsel brought to my notice the judgment of both the Courts below and contends that the complainant/respondent was not having any source of income to advance loan of Rs.24,000/- and specific contention was taken that the signature of the revision petitioner herein was forged. The contention is that the very trial Court dismissed the other cheque bounce case of Rs.50,000/-; when the trial Court dismissed the said complaint, it ought to have dismissed this complaint also.
5. Per contra, the learned counsel for the respondent in his oral arguments contends that the Courts below considered the evidence of PW1 to 3 and the evidence of DW1 and also documentary evidence placed before the Courts below. It is observed in the 6 judgments of the trial Court and first appellate Court that the petitioner herein has admitted the capacity of advancing the loan amount and he cannot contend that the respondent was not having any source of income to advance the loan. The other contention is that both the Courts below categorically held that the petitioner herein was in financial difficulty and that he availed the loan from the bank. Further, though the theory of lost cheque has been set-up, no complaint is given and no steps are taken for misusing the cheque and hence, same cannot be accepted.
6. Having heard the learned counsel for the revision petitioner and learned counsel for the respondent, this Court has to examine whether both the Courts below have committed an error in appreciating the evidence. The scope of revision is very limited, if the material has not been considered by both the Courts below or mistake apparent on the record, then this 7 Court has to exercise the revisional power and whether revision petitioner has made out such ground to interfere with the orders of both the Courts below.
7. The sum and substance of the complaint is that this revision petitioner has demanded hand loan from the complainant for his financial problems, accordingly, on 16.06.2005, the complainant gave hand loan of Rs.24,000/- to the petitioner/accused. The accused promised that he would repay it as early as possible, but he did not repay the said loan amount. On the persistent demand, he gave cheque dated 1.12.2005 for Rs.24,000/-, when the same was presented for encashment on 9.1.2006, it was returned for the reason "insufficient of funds". The respondent herein issued legal notice dated 23.01.2006 and it was received by him on 24.01.2006 and he gave untenable reply stating that the said cheque book was lost and same was misused by the complainant. Without 8 alternative, he has filed complaint. In support of his contention, to substantiate his pleadings, he relied upon his own evidence and other two witnesses, the persons who accompanied him and witnessed for the issuance of the cheque by this revision petitioner in favour of the respondent; the other witness is Bank Manager and also relied upon Exs.P1 to P13. On the other hand, revision petitioner herein has examined as DW1 and relied upon Ex.D1 and D2. The Trial Court after hearing both the parties, convicted the revision petitioner.
8. The Court below while convicting the petitioner herein discussed in para-34 of the judgment in detail regarding the issuance of the cheque and also with regard to source of his income is concerned and PW2 who has been examined in support of the case of the complainant also spoken with regard to the complainant cultivating 3 acres of land and also further, he says that he accompanied the 9 complainant/respondent herein regarding issuance of the cheque when DW1 i.e. petitioner who has been examined before the trial Court categorically admits that he has written the agreement executed by one Hanumanthagouda in favour of the complainant which is at Ex.P13 and the complainant has purchased the said property. It is further observed that on perusal of Ex.P13, it is forthcoming that the complainant has purchased 5 guntas of land in his village at the rate of Rs.9,000/- per gunta for a total sum of Rs.45,000/- in the year 2002. This fact shows that though the complainant was residing in a shed, he was financially sound and he invested a sum of Rs.45,000/- to purchase the said property.
9. It is also observed at para-36 of the judgment that mere leading of some formal evidence denying the issuance of cheque by the accused cannot be a ground to rebut the presumption. But the counsel 10 for the petitioner has contended that he has lost the cheque book and same has been mis-used by the respondent herein. In order to substantiate his contention, he has not led any evidence except producing Exs.D1 and D2. Further, the petitioner relied upon Ex.P11 and P12 which are admitted by the accused that he raised loan by pledging the land regarding his financial constraints and the first appellate Court also considered the evidence of PW1, 2 and 3 and nothing is elicited from the mouth of the PW3-Bank Manager. In the evidence of PW3-Bank Manager, he has categorically deposed with regard to while encashing the cheque, they used to compare the signature, thereafter only they pass the cheque. Further, he categorically says that the accused has not given any information with regard to the loss of cheque. In the cross-examination also, except suggestions that if any information is given to the bank for loss of cheque, 11 he cannot say without seeing inward register; the suggestion was made that he is deposing falsely, no information was given to the bank and the said suggestion was denied. In order to prove the fact that the cheque is lost, no material is proved before the Courts below, but he relied upon only Ex.D1 and D2. On perusal of Ex.D2, no where he put signature, no endorsement for having sent the letter to the Bank and the Bank Manager, who has been examined as DW2 has stated that, no such information has been given to the Bank regarding loss of cheque and he relied upon Ex.D1 regarding letter sent to the Bank and there is no proof with regard to service of said letter and no date is also mentioned in the said Certificate of Posting allegedly sent to the bank. Both the Courts below considered these documents Ex.D1 and 2 and came to the conclusion that the said documents bears no date and no acknowledgment and same cannot relied upon and it 12 appears that in order to set-up the defence, those documents are created. In the 313 statement also, the revision petitioner says that the specimen signatures are also available in the bank and he says that he has informed the bank about loss of cheque relying upon Ex.D1 and D2 and same cannot be believed and both the Courts below considering the evidence available on record rightly come to the conclusion that the defence of the respondent has not been proved when the revision petitioner contends that his signatures are not proved. Admittedly, burden shifts on the revision petitioner to prove the signatures. On perusal of the entire cross- examination, mainly cross-examination of the complainant with regard to source of income for advancing loan and not in respect of denial of signature I do not find any effective cross-examination in the cross-examination of PW1 with regard to forging of the 13 cheque except the suggestion and PW1 has denied that signatures are forged.
10. Under the circumstances, I do not find any reasons to interfere with the orders of the Courts below by exercising the power under Sections 397 and 401 of Cr.P.C. to reverse the orders of the Courts below.
11. In view of the discussions made above, I pass the following:
Revision petition is dismissed.
Sd/ JUDGE JTR