Karnataka High Court
Basavegowda @ Swamy Gowda vs The State Of Karnataka on 27 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:13003
CRL.RP No. 137 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 137 OF 2024
BETWEEN:
1. BASAVEGOWDA @ SWAMY GOWDA
S/O LATE EREGOWDA,
AGED ABOUT 72 YEARS,
NALLURU BETTAHALLI VILLAGE,
PALYA HOBLI, ALUR TALUK
HASSAN - 573 213.
...PETITIONER
(BY SRI OMKAR BASAVA PRABHU, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
Digitally signed REPRESENTED BY ALUR POLICE,
by SHARANYA T
REPRESENTED BY SPP,
Location: HIGH
COURT OF HIGH COURT BUILDING,
KARNATAKA BANGALORE -560001
...RESPONDENT
(BY SRI M.DIVAKAR MADDUR, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 12.12.2023
PASSED BY THE HONBLE II ADDITIONAL DISTRICT AND
SESSIONS COURT OF HASSAN IN CRL.A.NO.12/2022 AT
ANNEXURE A AND THE JUDGMENT PASSED BY HONBLE COURT
OF CIVIL JUDGE AND JMFC AT ALUR, HASSAN IN
C.C.NO.249/2010 DATED 29.12.2021 AT ANNEXURE B AND
ACQUIT THE PETITIONER FROM THE ALLEGED OFFENCE.
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NC: 2024:KHC:13003
CRL.RP No. 137 of 2024
THIS PETITION, COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. Heard the learned counsel for revision petitioner and also the counsel appearing for the respondent/State.
2. The factual matrix of case of prosecution is that the accused No.1 being an elder brother of CW3 approached CW2, the Bank Manager of Canara Bank, Rayakoppalu Branch, Alur Taluk in the year 2004-05 with an intention to get a loan under green card scheme and a Tractor loan pretending that he is CW3 with an intention to cheat the bank officials by impersonation and also specific allegation against him that with dishonest intention to induce the complainant and deceived the complainant in getting loan of Rs.25,000/- and a loan of Rs.75,000/- under different schemes i.e., under farmer green card scheme, under Kisan Krishi Scheme and a Tractor loan of Rs.4,75,000/- and also he did not repay the amount, when notice was issued, then only the bank officials comes to know about impersonation and cheating with complainant. -3-
NC: 2024:KHC:13003 CRL.RP No. 137 of 2024 The accused was secured before the Trial Court and the accused did not plead guilty and hence the prosecution examined the prosecution witnesses PW1 to PW21 and got marked Ex.P1 to Ex.P86. No doubt the revision petitioner examined himself as DW1 and got marked the document Ex.D1 to Ex.D13 and also for having made the payment on different dates, the receipts are also produced as Ex.D2 to Ex.D5 and also the letter dated 18.04.2006 as Ex.D6 and notice dated 12.11.2000 as Ex.D7 and other letters dated 08.10.2004, 22.08.2006 which are marked as Ex.D8 and Ex.D9. The letter of accused No.1 dated 03.09.2007, legal notice, study certificate and original new passbook of account No.12501 and also considering both oral and documentary evidence and case is also mainly rest upon the documentary evidence which clearly discloses that the copy of simple mortgage deed dated 21.10.2004, the copy of the application cum appraisal form for Kisan credit card scheme dated 31.10.2004, the copy of the agreement, deed of hypothecation for Kisan Credit Card Scheme dated 31.10.2004, copy of specimen signatures on the card -4- NC: 2024:KHC:13003 CRL.RP No. 137 of 2024 dated 31.10.2004, letter of accused No.1 dated 31.10.2004, the copy of nomination cum authority letter, copy of variation of interest letter, copy of application under FGCS Scheme, legal opinion and documents which have been produced before the Court before availing the loan, the copy of encumbrance certificate, original tax paid receipts, Patta Book of Sri.Puttegowda, original first information and original seizure mahazar dated 29.06.2010, original specimen signatures as Ex.P31 to Ex.P44, original seizure mahazar dated 30.06.2010 as Ex.P45, original mortgage deed dated 03.08.1993, original requisition dated 30.06.2010 as Ex.P46 and certified copy of simple mortgage deed dated 21.10.2004 as Ex.P47. The Trial Court taking into note of all these documents i.e., the exhibit 'P' series and also the exhibit 'D' series, the detailed order has been passed by the Trial Court, particularly in paragraph No.37 taken note of cross- examination by the learned Public Prosecutor. When the accused examined himself as DW1 before the Trial Court, the entire evidence has been extracted in paragraph -5- NC: 2024:KHC:13003 CRL.RP No. 137 of 2024 No.38, comes to the conclusion that over all perusal of evidence of the accused, it is seen that, he consistently deposed that, he is having two names as Basavarajegowda and Basavegowda and he himself has obtained the loans from Canara Bank in the name of Basavarajegowda and repaid the same. Inspite of it, he defended his act and the fact that he has availed the loan in the name of PW3 who is the brother of accused No.1 is also not in dispute. Overall consideration of evidence available on record, the accused has not disputed the submission of application for availing loan and the same is also considered in paragraph No.42 of the judgment of the Trial Court. The Trial Court also taken note of inconsistent stand taken by accused before the Trial Court and the same has been discussed in paragraph Nos.44 and 45 and also the documents which have been produced by the accused is also considered. Having considered all these material, particularly the prosecution also confronted and got marked the voter list of the year 2019 as Ex.P84 wherein it is seen at Ex.P84(a) the name of the accused is shown as Basavegowda S/o -6- NC: 2024:KHC:13003 CRL.RP No. 137 of 2024 Eregowda and having considered all these materials only comes to the conclusion that the name of the accused No.1 is Basavegowda and not Basavarajegowda. The Trial Court also taken note of the document Ex.P85 and his name is shown as Basavegowda and his date of birth is shows that he was born in the year 1947 and also taken note of residential address that he is the resident of Nallur.
3. The First Appellate Court having re-assessed both oral and documentary evidence available on record and taken note of the same, on re-appreciation also not found any error committed by Trial Court considering both oral and documentary evidence available on record. Even the First Appellate Court also re-assessed each evidence of witnesses and considering the document at Ex.D1, Ex.D2 and Ex.D5 in paragraph No.39 taken note of bank receipts as well as Ex.D1 and also taken note of loan availed at the first instance i.e., an amount of Rs.25,000/- and a loan of Rs.75,000/- under different schemes i.e., under farmer green card scheme, under Kisan Krishi Scheme and a Tractor loan of Rs.4,75,000/- in paragraph No.40 and all -7- NC: 2024:KHC:13003 CRL.RP No. 137 of 2024 the document which have been produced by the prosecution as well as the defense also and in paragraph No.48 taken note of ID card of voter list i.e., Ex.D82 and Ex.D84 - voter list, since the entries were made on the basis of information provided by him and contents of document of Ex.D81, Ex.D82 and Ex.D84 clearly supports the case of the prosecution that his name is Basavegowda and not as Basavarajegowda as contended by the defense.
4. The First Appellate Court also in detail taken note of the defense of the accused No.1 which has been discussed in paragraph No.52. The First Appellate Court also considered both material on record, including the written arguments which have been produced before the Court and contention was taken that he is an illiterate person having no worldly knowledge. Having taken note of perusal of evidence on record discloses that accused is neither an illiterate person nor he is not having worldly knowledge as claimed by his counsel is also taken note of in paragraph No.59 and comes to the conclusion that the Trial Court has not committed any error and with a -8- NC: 2024:KHC:13003 CRL.RP No. 137 of 2024 dishonest intention only by impersonation cheated the complainant bank and his brother Basavarajegowda and confirmed the judgment of the Trial Court.
5. The counsel appearing for the revision petitioner would vehemently contend in his revision petition that he was in jail during the trial for a period of 1½ year and Court has to show the lenience. The counsel submits that his name is Basavegowda @ Basavarajegowda, this fact has already been considered by the Trial Court, particularly taking into note of document Ex.D82, Ex.D83 and Ex.D84 the documents which are prior to the loan document. When the revision petitioner impersonated and availed the loan, that too in the name of his brother and also even participated in executing the registered document of simple mortgage deed by appearing before the Sub-Registrar and impersonated himself. When such being the case, question of exercising any lenience as contended by the revision petitioner's counsel does not arise and the same is reasonable. This type of transaction was made with the -9- NC: 2024:KHC:13003 CRL.RP No. 137 of 2024 bank with an intention to cheat the complainant bank and he also persuaded the CW2- Bank Manager who advance the loan in the fictious name of a person who is his brother by impersonating himself as his brother and I do not find any force in the contention of the revision petitioner's counsel to show any lenience by making any set-off for the period which he has undergone. The counsel also submits that he is aged about 72 years and transaction was taken place 2004 and he is a poor farmer and poor farmer cannot indulge in such an act of impersonation and cheating when the intentional and dishonest act was done by the petitioner and the submission that he is aged about 72 years and he is a poor farmer cannot be accepted. No lenience can be shown to such a person indulged in such an act and no ground is made out to interfere with the finding. Hence, I do not find any merit to invoke the revisional jurisdiction since the Trial Court also though punishment is for a period of 7 years, taken note of the same and lenience was also extended by convicting him for a period of 2 years and Trial Court ought to have
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NC: 2024:KHC:13003 CRL.RP No. 137 of 2024 imposed the severe punishment and the same is not commensurate with the charges leveled against him. Though it is not commensurate with the charges leveled against him, shown the lenience. Hence, I do not find any ground to interfere with the finding of the Trial Court as well as the First Appellate Court. Hence, no grounds to exercise the revisional jurisdiction.
6. In view of the discussions made above, I pass the following:
ORDER The Revision Petition is dismissed.
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JUDGE RHS List No.: 1 Sl No.: 43