Karnataka High Court
Arvinda Suri vs Smt Mary Vijay on 10 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:10048
CRL.RP No. 597 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.597 OF 2019
BETWEEN:
ARVINDA SURI
S/O DEVARAJ SURI
AGED ABOUT 52 YELARS
R/AT NO.241, EMBASSY WOODS,
NO.6, CUNNINGHAM ROAD,
BENGALURU 560052.
...PETITIONER
(BY SRI SANTHOSH KUMAR M B, ADVOCATE)
AND:
Digitally signed SMT. MARY VIJAY
by DEVIKA M W/O VEEJAY CASPAR
Location: HIGH AGED ABOUT 51 YEAWRS
COURT OF
KARNATAKA R/AT NO.430, 2ND BLOCK,
THUNGABHADRA NATIONAL GAMES VILLAGE,
KORAMANGALA, BENGALURU 560 034.
...RESPONDENT
(BY SRI LAKSHMIKANTH K, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 11.09.2018 PASSED BY THE XXI A.C.M.M., AT
BENGALURU CITY IN C.C.NO.26497/2017 AND ETC.
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NC: 2025:KHC:10048
CRL.RP No. 597 of 2019
THIS PETITION, COMING ON FOR ADMISSION, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
This petition is filed against the judgment and order dated 11.09.2018 passed in C.C.No.26497/2017 and the judgment and order dated 11.04.2019 passed in Crl.A.No.2030/2018.
2. Heard the learned counsel appearing for the respective parties.
3. This Court earlier heard the matter in part and deferred the matter in view of the submission made by the counsel for the petitioner that though five cheques were issued, repayment was made and returned the cheques and the counsel for the respondent submits that those cheques were not returned and the same are in the custody of the accused and no such payments are made. Hence, the respondent is directed to produce those -3- NC: 2025:KHC:10048 CRL.RP No. 597 of 2019 cheques before this Court and hence, this Court, subsequently, time was granted to produce the same and today, the learned counsel for the respondent submits that those cheques are with one Ahmed Khan Hussain who is the friend of the petitioner as well as the respondent and now, he is evading to furnish the same and inspite of compliant was given, police have also not taken any action against him. Hence, this Court heard the matter on merits.
4. The factual matrix of the case of the complainant is that both of them are well known to each other for more than four years and the complainant and accused agreed to invest the money in Aviation business run by the accused. Accordingly, on 08.11.2016, the complainant invested Rs.10,00,000/- in the business of the accused by paying the said amount through Cheque for Rs.6,50,000/- and by way of cash of Rs.3,50,000/- but when the accused fails to repay the said amount, he assured to repay the said investment amount along with -4- NC: 2025:KHC:10048 CRL.RP No. 597 of 2019 interest as business profit at the fixed rate of 5.71% per quarter i.e., to pay Rs.1,75,000/- per quarter and the said profit has to pay to the complainant on or before 10th of every quarter. It is also the contention of the complainant that in order to ensure payment of interest/business profit and repayment of principle investment amount of Rs.10,00,000/-, the accused had executed an on demand promissory note and also agreement as well as he had issued five undated cheques by filling the amount. It is further averred that after availing the investment amount, the accused has failed to pay the interest or business profit and principle amount as agreed by him and hence, the complainant insisted for repayment of the said amount and the accused in the first week of September 2017, issued a Cheque for Rs.10,00,000/- and when the said Cheque was presented, the same was returned with an endorsement 'payment stopped by drawer'. Hence, the complainant issued the legal notice demanding for repayment of the amount and the said notice was served on the accused but he failed to reply to the notice. Hence, -5- NC: 2025:KHC:10048 CRL.RP No. 597 of 2019 the complainant lodged the complaint seeking for penalizing the accused for the offence punishable under Section 138 of NI Act.
5. In pursuance of summons, the accused made appearance through his counsel and he pleaded not guilty and claimed for trial. Hence, the complainant examined herself as PW1 and got marked the documents at Ex.P1 to P7. The statement of accused is recorded under Section 313 of Cr.P.C and he has not chosen to adduce any evidence. The Trial Court having considered the material on record comes to the conclusion that the accused has received the amount from the complainant and failed to pay the same and Cheque issued by the accused also dishonoured and when legal notice was issued, reply was not given by the accused and though the accused contend that he has repaid the amount, no cogent evidence is placed before the Court and hence, the Trial Court did not accept the theory of the accused and convicted and sentenced the accused.
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NC: 2025:KHC:10048 CRL.RP No. 597 of 2019
6. The First Appellate Court having considered both oral and documentary evidence placed on record comes to the conclusion that the complainant has placed the sufficient material to prove his case and no rebuttal evidence is placed by the accused and hence, the accused has not discharged his burden by proving his case within the provisions of Section 118 and 139 of NI Act and hence, adverse inference can be drawn against him under Section 114(g) and 103 of Evidence Act and thus, confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present revision petition is filed before this Court by the accused.
7. The main contention of the learned counsel for the appellant that both the Courts have committed an error in considering material on record in a proper perspective and also contend that the complainant has not proved her capacity to pay the amount lent to the accused, though accused has raised a probable defence that an amount of Rs.3,50,000/- was not lent to the -7- NC: 2025:KHC:10048 CRL.RP No. 597 of 2019 accused within one week from 08.11.2016, the same is not considered by both the Courts. The counsel would vehemently contend that the cheques which have been issued were in the custody of the complainant and he has repaid the loan amount but the complainant has not returned the said cheques to the accused and the accused is not liable to pay any amount of Rs.10,00,000/- as contended by the counsel for the respondent. It is also the contention of the counsel for the petitioner that the complainant admits that she has misused the blank Cheque which were issued as security for the transaction and the counsel further contend that though the counsel for the respondent contend that cheques are with the respondent, same is not placed before the Court. The counsel for the petitioner submits that the cheques which have been received were also destroyed, hence, unable to produce the same before the Court. The counsel for the petitioner contend that this Court has to interfere with the finding of the Trial Court.
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NC: 2025:KHC:10048 CRL.RP No. 597 of 2019
8. Per contra, the learned counsel appearing for the respondent would vehemently contend that the issuance of subject matter of the Cheque is not in dispute. The counsel would vehemently contend that in the complaint as well as in the notice itself, the complainant categorically stated that though the accused had promised to repay the amount of Rs.1,75,000/- on each quarter by way of Cheque but he did not repay the same and those cheques are in his custody and he had promised to use those cheques on quarterly, but he did not repay any amount. The contention that accused has paid the amount cannot be accepted. The counsel also would vehemently contend that accused also executed the agreement as well as on demand promissory note and consideration receipt and on demand promissory note is marked as Ex.P6 and consideration receipt is marked as Ex.P7. The counsel further contend that if really, accused had made the payment, he would have taken back the said pronote as well as consideration receipt but he has not done the same. Inspite of service of notice also he did not give any -9- NC: 2025:KHC:10048 CRL.RP No. 597 of 2019 reply to the said notice hence, it is very clear that after thought, he took the specific contention that he had repaid the amount and hence, the contention of the counsel for the petitioner cannot be accepted.
9. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, the point that would arise for consideration of this Court are:
1. Whether both the Courts committed an error in appreciating the material on record in a proper perspective and the order of both the Courts amounts to perversity and whether it requires interference of this Court exercising the revisional jurisdiction?
2. What order?
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NC: 2025:KHC:10048 CRL.RP No. 597 of 2019 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 the very specific pleading of the complainant that she had lent the amount of Rs.10,00,000/- to the accused for his business. The fact that the complainant had paid an amount of Rs.6,50,000/- by way of Cheque is not in dispute. The contention that the said amount was repaid and hence, he had collected the cheques for Rs.1,75,000/- each and the counsel contend that those cheques were destroyed and not placed the same before the Court. It is also important to note that notice was issued and same was served but an attempt was made during the course of the argument that notice was not served. But on perusal of 313 statement of the accused it is clear that he categorically admitted the issuance of notice and having accepted the notice, but no reply was given and track consignment was also marked as Ex.P5 in this regard. When there is a categorical admission that he had received the notice and reply was
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NC: 2025:KHC:10048 CRL.RP No. 597 of 2019 not given, only after thought, he has set up the defence that he had repaid the amount. If really he had repaid the amount as contended by the petitioner, he would have given the reply immediately stating he had repaid the amount by collecting the cheques, but not produced those cheques and contend that same has been destroyed. The counsel for the respondent would contend that cheques are in his custody and also the respondent not produced the same.
11. However, having taken note of the fact that at the time of availing the loan, executed on demand pronote and consideration receipt and the same are marked as Ex.P6 and P7. Having considered the Ex.P6 and P7, it discloses that the same are for Rs.10,00,000/- and hence, what made the accused to execute the pronote for Rs.10,00,000/- if only an amount of Rs.6,50,000/- was received by way of Cheque and not received the amount of Rs.3,50,000/- by way of cash and in this regard, there is
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NC: 2025:KHC:10048 CRL.RP No. 597 of 2019 no explanation on the part of the petitioner and the petitioner also not disputes the issuance of Ex.P6 and P7.
12. Having considered the statement of the petitioner under Section 313 of Cr.P.C, it discloses that nothing is stated with regard to repayment of the amount and he fails to enter into the witness box. No doubt, it is a settled law that if answers are elicited from the mouth of PW1, no need to enter to the witness box. On perusal of evidence of PW1 it discloses that except suggesting that made the payment of Rs.6,50,000/-, nothing is elicited from the mouth of PW1 except eliciting that both of them are not the income tax assesses. In the cross- examination, suggestion made that inspite of amount was repaid, only with an intention to get the more interest, the present complaint is filed and PW1 stated that nothing is placed on record for having received the amount by the accused and defence remains as defence when nothing is placed on record to substantiate the contention that amount has been repaid. On perusal of Ex.P1, it is clear
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NC: 2025:KHC:10048 CRL.RP No. 597 of 2019 that for an amount of Rs.10,00,000/-, a Cheque was issued and the same was dishonoured as per Ex.P2 and when notice was issued also, reply was not given and hence, it is clear that only after thought, the accused has set up the defence of repayment. When such being the case, the order of both the Courts does not suffer from any legality and correctness and there is no perversity and when there is no plausible evidence before the Court, the question of entertaining the revision petition does not arise. Hence, I answer the above point as negative. Point No.2:
13. In view of the discussions made above, I pass the following:
ORDER The petition is dismissed.
Sd/-
(H.P.SANDESH) JUDGE SN