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2022 DIGILAW 376 (KAR)

Nagaraju v. Raghavendra Rao B. s.

2022-03-16

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - This criminal revision petition is filed to set aside the judgment dated 14.11.2017 passed by the LXVIII Additional City Civil and Sessions Judge, Bengaluru, in Criminal Appeal No. 275/2017 i.e., the dismissal of the appeal filed by the petitioner herein by confirming the judgment of conviction passed by the XVI Additional Chief Metropolitan Magistrate, Bengaluru in C.C. No. 34476/2014 vide judgment dated 15.11.2016. 2. Heard the learned counsel for the petitioner and learned High Court Government Pleader for the State. 3. The factual matrix of the case of the respondent before the Trial Court is that the complainant was in search of the house and hence, he had contacted this petitioner and this petitioner has received an amount of Rs. 6 lakhs. Out of Rs. 6 lakhs, Rs. 2 lakhs was paid by way of cash and Rs. 4 lakhs by way of cheque. Inspite of receiving the said amount, he did not lease out the house in favour of the complainant. In furtherance of the demand made by the complainant, the petitioner issued two subject matter cheques and those two cheques have been presented and both the cheques have been dishonoured. Hence, the complainant issued legal notice and the same is acknowledged and inspite of receiving the notice, the petitioner did not comply with the same and hence, the complainant filed a complaint. 4. The complainant, in order to prove his case, examined himself as P.W.1 and marked the documents as Exs. P1 to P12. On the other hand, the petitioner-accused examined himself as D.W.1 and no document is marked. 5. The Trial Court, after considering both oral and documentary evidence placed on record, convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act ('N.I. Act' for short). Hence, an appeal is filed before the Appellate Court in Crl.A. No. 257/2017. The Appellate Court, on re-appreciation of evidence available on record, dismissed the same. Hence, the present revision petition is filed. 6. Learned counsel for the petitioner would vehemently contend that the complainant has failed to prove his capacity for having paid the amount of Rs. 6 lakhs. The counsel also would submit that, for having paid an amount of Rs. 2 lakhs by way of cash, no document is placed on record by the complainant. 6. Learned counsel for the petitioner would vehemently contend that the complainant has failed to prove his capacity for having paid the amount of Rs. 6 lakhs. The counsel also would submit that, for having paid an amount of Rs. 2 lakhs by way of cash, no document is placed on record by the complainant. The complainant has also not placed any material for having agreed to lease out the house and lease deed is also not produced. The counsel also would submit that the cheques which are the subject matter are in the name of Proprietor of RNS Greetings and not in the individual capacity of the petitioner. The counsel would submit that, it is only a business transaction and the petitioner had not agreed to least out any house and the complainant has given different colour to the said transaction. The counsel would further submit that both the cheques are dated same and hence, the complainant has not proved the case. Inspite of the fact that the complainant has not proved the case, both the Courts committed an error and passed perverse order. The counsel would submit that in Ex. P11-complaint, a specific averment is made with regard to the amount paid as Proprietor of RNS Greetings and not in the individual capacity. 7. On the other hand, learned counsel for the respondent would submit that, it is the very defence of the petitioner before the Trial Court that it was a business transaction and not a leasehold transaction. In order to prove the same, no material is placed before the Court, except examining himself. The counsel also would submit that, in the oral evidence of the petitioner, he speaks with regard to the transaction with Babu and that he gave the cheque in favour of the respondent is not explained by him. The counsel also would submit that the statement made before the Court is very clear that he had admitted the lease transaction and he was unable to make payment. Hence, he has issued subject matter cheques and the petitioner also not disputes issuance of the letter before the police and he categorically admitted that he was called before the police station, when the complaint was given by the respondent. 8. Hence, he has issued subject matter cheques and the petitioner also not disputes issuance of the letter before the police and he categorically admitted that he was called before the police station, when the complaint was given by the respondent. 8. Learned counsel for the respondent would further submit that the police have also given endorsement, based on the complaint given by the respondent in terms of Ex. P12. All these materials are considered by the Trial Court as well as the Appellate Court and no perversity is found in considering both oral and documentary evidence placed on record. Hence, it does not require interference of this Court by exercising the revisional jurisdiction. The counsel would also submit that the scope of revision is very limited and the Court can exercise the revisional jurisdiction, only if there is perversity in the order passed by the Trial Court as well as the Appellate Court and not considered the cogent evidence available before the Court. 9. Having heard the learned counsel for the petitioner and the learned counsel for the respondent, the points that would arise for consideration of this Court are: (i) Whether the Trial Court committed an error in convicting the petitioner/accused for the offence punishable under Section 138 of the N.I. Act and the Appellate Court also committed an error in confirming the same and whether it is a fit case to exercise the revisional jurisdiction? (ii) What order? Point No. (i) 10. Having considered the respective counsel and also on perusal of the material on record, it is the case of the complainant before the Trial Court that this petitioner being the Proprietor of RNS Greetings issued two subject matter cheques which are marked as Exs. P1 and P2. The petitioner also not disputed the signatures available in Exs. P1 and P2. The main defence of the petitioner, who was examined as D.W.1 before the Trial Court is that, he was having financial transaction with one Babu and he was due for an amount of Rs. 4 lakhs and he did not repay the amount and had promised to get the amount through his friends/financiers. In that regard, he has given 4 cheques as security. But, one Babu has not paid the amount and thus, he went and demanded money from him and also he did not return 4 cheques which he had given. 4 lakhs and he did not repay the amount and had promised to get the amount through his friends/financiers. In that regard, he has given 4 cheques as security. But, one Babu has not paid the amount and thus, he went and demanded money from him and also he did not return 4 cheques which he had given. But, the said Babu gave the money through his friend i.e., the complainant to the tune of Rs. 4 lakhs. However, he has received the notice and the handwriting in the cheque not belongs to him and also not received any summons. Further, he admits that he went to the police station and the police took signature on the blank paper and he does not know the contents of Ex. P12, but he had signed the blank paper and he came to know the contents of Ex. P12 after filing of this case. 11. D.W.1 was subjected to cross-examination. In the cross-examination, he admits that he has deposed in his chief evidence that he came to know the complainant through his friend Babu but, he does not know the bank through which he has issued 4 blank cheques to his friend Babu. However, he admits that the signature on Ex. P9 is that of his wife. He also admits the signature available on Exs. P1 and P2 which are marked as Exs. P1(a) and P2(a). He also admits that, as per Ex. 10, he has encashed Rs. 4 lakhs through cheque and also admits that he went to the police station in connection with the complaint lodged by the respondent. But, he denies that he executed the document, Ex. P12. 12. Having considered the evidence available on record, the petitioner, who has been examined as D.W.1 categorically admits his signature on Exs. P1 and P2 and also notice issued against him. He categorically admits that notice was signed by his wife i.e., Ex. P9. It is also important to note that the petitioner has not given any reply to the notice and only in the evidence, he took a different defence that he was having financial transaction with one Babu and he promised him that he would get the money from his friends and accordingly, received the amount of Rs. 4 lakhs and the said cheque belongs to the respondent is also admitted. 4 lakhs and the said cheque belongs to the respondent is also admitted. He has not given any explanation with regard to Exs. P1 and P2 but, though he claims that he gave the cheque in favour of said Babu, the evidence of D.W.1 cannot be accepted. 13. It is the clear evidence of the petitioner in his chief that one Babu was owing money to him i.e., Rs. 4 lakhs. Hence, he assured to get the money from his friends. When Babu was owning money to him for Rs. 4 lakhs, what made him to give 4 cheques towards security is not explained by the petitioner. It is his evidence that Babu owes money of Rs. 4 lakhs. When Babu owes money of Rs. 4 lakhs, what made the petitioner to give 4 cheques in favour of Babu is not explained. The very defence which has been taken by the petitioner is contrary to his own case. Apart from that, the petitioner claims that his signature was taken on the blank paper in the police station. But, on perusal of Ex. P12, it is clear that before the police, he made the statement that he owes money to the petitioner and he has received the amount from the petitioner to lease out the premises and hence, he gave the cheques and issuance of two cheques is also not explained. If really, he has received the amount of Rs. 4 lakhs only, what made him to give 2 cheques having the same date is not forthcoming. The very defence of the petitioner has not been proved by leading any cogent evidence. 14. In the cross-examination of P.W.1 also, nothing is rebutted and his case is very clear that he paid the amount of Rs. 2 lakhs by way of cash and Rs. 4 lakhs by way of cheque. However, petitioner, who has been examined as D.W.1 admitted that he has encashed the cheque belonging to the complainant. When such being the factual aspects, the very contention of the learned counsel for the petitioner that there was no transaction between the petitioner and the respondent and it is only a business transaction and got the money from his friend one Babu cannot be accepted. When such being the factual aspects, the very contention of the learned counsel for the petitioner that there was no transaction between the petitioner and the respondent and it is only a business transaction and got the money from his friend one Babu cannot be accepted. Both the Trial Court as well as the Appellate Court have taken note of the evidence of P.W.1 and D.W.1 and when the petitioner not disputes the execution of document Exs. P1 and P2 and admits the signature, the presumption lies in favour of the complainant under Section 118 as well as Section 139 of N.I. Act. The presumption has not been rebutted by the petitioner herein under Section 139 of the N.I. Act. 15. It is The very contention of the petitioner that cheques are in the name of RNS Greetings and the same is issued in the capacity of Proprietor of RNS Greetings. It is not in dispute that he is the Proprietor of RNS Greetings and complaint is also filed against RNS Greetings, showing the name of the petitioner as the Proprietor and the transaction is not a business transaction. In the complaint, the complainant has categorically stated that the petitioner had received the amount to lease out the premises but, not leased out the premises. Hence, there was no lease agreement and the question of producing the lease agreement does not arise as contended by the learned counsel for the petitioner. The amount is accepted by the petitioner by way of cheque and with regard to Rs. 2 lakh received by way of cash by the petitioner, the complainant has not produced any document. The petitioner has not explained as to what made him to give Rs. 6 lakhs, even though he had received only Rs. 4 lakhs. The very contention that those cheques are issued as security while receiving money from Babu also cannot be accepted and the said Babu is also not examined before the Trial Court. 16. When such being the case and material available on record, it is not a fit case to exercise the revisional jurisdiction. 4 lakhs. The very contention that those cheques are issued as security while receiving money from Babu also cannot be accepted and the said Babu is also not examined before the Trial Court. 16. When such being the case and material available on record, it is not a fit case to exercise the revisional jurisdiction. The Trial Court as well as the Appellate Court have considered both oral and documentary evidence placed on record and this Court can exercise the revisional jurisdiction, only if the findings of the Trial Court is perverse and no perversity is found in the order passed by the Trial Court. Hence, the question of invoking revisional jurisdiction does not arise. The petitioner has not made out a ground to invoke revisional jurisdiction. Accordingly, I answer point No. (i) as 'negative'. Point No. (ii) 17. In view of the discussions made above, I pass the following: ORDER (i) The Criminal Revision Petition is dismissed.