Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 393 (KAR)

Sathyanarayana Jetty v. Shivalingaiah

2022-03-21

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 2. The factual matrix of the case is that the petitioner herein had approached the complainant during the first week of November 2005 and requested for hand loan of Rs. 2 lakh to meet his business commitments. Accordingly, the complainant agreed to pay the amount of Rs. 2 lakh and paid the same on 06.11.2005 with a condition to repay the same within three months along with the interest at the rate of 12% p.a. and the accused had issued a post dated cheque dated 06.02.2006 stating that the loan amount will be cleared on the said date. On the assurance of the accused, the complainant had presented the said cheque for encashment and the same was returned with an endorsement 'funds insufficient'. Hence, the legal notice was issued to the petitioner herein through registered post as well as certificate of posting. Inspite of service of notice, he did not comply with the demand. Hence, the complaint was filed under Section 200 of Cr. P.C. for the offence pus 138 of N.I. Act. Thereafter, the Trial Court taken cognizance and complainant in order to substantiate his contention examined himself as PW1 and got marked the doc at Ex.P1 to P11. On the other hand, the petitioner herein was examined as DW1 and not marked any document. The defence of the petitioner herein before the Trial Court is that he was not aware of the complainant and he had issued the cheque in favour of the complainant's son in order to stand as guarantor for his loan since he is in need of money. The Trial Court after considering the oral and documentary evidence available on record, convicted the petitioner and ordered to pay fine of Rs. 3 lakh as against the cheque amount of Rs. 2 lakh and default sentence also imposed. Hence, an appeal was preferred by the petitioner in Crl.A. No. 60/2012. The Appellate Court also on re-appreciation of evidence, dismissed the appeal and confirmed the order of the Trial Court. Hence, the present revision petition is filed. 3. 3 lakh as against the cheque amount of Rs. 2 lakh and default sentence also imposed. Hence, an appeal was preferred by the petitioner in Crl.A. No. 60/2012. The Appellate Court also on re-appreciation of evidence, dismissed the appeal and confirmed the order of the Trial Court. Hence, the present revision petition is filed. 3. The learned counsel appearing for the petitioner would submits that the Trial Court at the first instance acquitted the petitioner and thereafter he had filed an appeal in Crl.A. No. 465/2010 and the matter was ordered for retrial and after the retrial, the petitioner was convicted for the offence punishable under Section 138 of N.I. Act and thereafter, an appeal was filed. The counsel further submits that the complainant was not having any source of income to lend the amount of Rs. 2 lakh and not produced any document before the Trial Court. The counsel also would submit that no cheque was issued in favour of the complainant and cheque was issued in favour of the complainant's son since he was in need of money in order to avail the loan, he had issued the said cheque. The counsel would submit that there was a delay in lodging the complaint and delay was condoned without giving any notice. The counsel would submit that the complainant was not aware of the address of the petitioner and he had issued notice to two addresses and notice was also not served and inspite of all these material contradictions, the Trial Court committed an error in convicting the petitioner for the offence punishable under Section 138 of N.I. Act. The counsel further submits that the Appellate Court also failed to re-appreciate the material available on record and not considered the grounds which have been urged before the Appellate Court and committed an error in confirming the order of the Trial Court. Hence, it requires interference of this Court. 4. Per contra, the learned counsel appearing for the respondent/complainant would submit that regarding service of notice is concerned, the Trial Court in paragraph 11 of the judgment discussed in detail that where the petitioner was working. The petitioner also not disputed the fact that he was in the said address and definite finding was given with regard to the service of notice. The petitioner also not disputed the fact that he was in the said address and definite finding was given with regard to the service of notice. The counsel would submit regarding delay is concerned and same was questioned since the matter was attained its finality and now he cannot raise the issue with regard to the delay in filing the complaint. 5. The learned counsel for the respondent would submit that issuance of cheque is admitted. The counsel would submit that the amount was paid out of his savings since he retired in the year 2001 itself and also he was having agricultural income. In order to prove the said fact also, he had produced the documents before the Trial Court to show that he was having source of income i.e., Ex.P11-pension payment order book, Ex.P10-patta book, Ex.P9- RTC extracts. All these documents show that he not only having the pension benefit but also having the agricultural income. The counsel would submit that the very contention of the petitioner is that the cheque was given as security and in order to prove the said fact that he had issued the cheque as security, the petitioner has not taken any steps when the cheque was not returned since he contend that the cheque was given as security and no step or action was taken even against the son of the complainant in whose favour the cheque was given and hence, both the Trial Court as well as Appellate Court have not considered the defence of the petitioner and hence, there is no grounds to entertain the requirement of the revisional jurisdiction. 6. In reply to the arguments of respondent counsel, the counsel for the petitioner would submit that, the order was passed on 19.03.2010 in respect of the delay is concerned and within a span of four days, an order of acquittal was passed and he did not challenge the same. 7. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record the point that would arise for consideration are: (1) Whether the Trial Court had committed an error in convicting and sentencing the petitioner and whether the Appellate Court also committed an error in confirming the order of the Trial Court and whether it requires interference of this Court exercising the revisional jurisdiction? (2) What order? Point No. 1: 8. (2) What order? Point No. 1: 8. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record it discloses that the issuance of cheque is not in dispute. The very contention of the counsel for the petitioner is that the said cheque was issued in favour of the son of the complainant in order to get the loan from the bank. In order to substantiate the fact that the cheque was issued as security to the complainant's son, there was a cross-examination by the complainant's counsel and during the cross-examination, DW1 categorically admits that while obtaining the loan from any bank, loan application has to be signed even by the guarantor and the same is admitted that he has not signed any such loan application. But he only claims that when he was received the summons from the Court, he came to know about the dishonour of the cheque but he admits that since then, he has not given any notice to the complainant's son to return the cheque. He categorically admits that he has not registered any criminal case against him when he did not return the cheque. He also admits that even after appearance before the Court also he has not filed any objections stating that for what purpose he gave the cheque. He claims that the complainant's son was intended to avail the loan from SBI, Basaveshwaranagar Branch to the tune of Rs. 2 lakh and hence, he gave the cheque as surety. Having admitted the fact that he has not signed any loan application while taking the cheque and also he has not taken any action against the son of the complainant for having misused the cheque. Hence, it is clear that no criminal case is also registered against the son of the complainant for misusing the said cheque. Having admitted the fact that he has not signed any loan application while taking the cheque and also he has not taken any action against the son of the complainant for having misused the cheque. Hence, it is clear that no criminal case is also registered against the son of the complainant for misusing the said cheque. It is also important to note that this petitioner is working in the police department as police constable and when the cheque was misused, he would have given the complaint either to the police or to any other authority and even not given any letter to the bank stating that 'not to honour the cheque' when the cheque was misused and hence, the first contention that the cheque was given in favour of the son of the complainant and no action was taken against him cannot be accepted since the petitioner has not proved the said defence. 9. The second contention of the learned counsel for the petitioner is that there is no source of income to pay the amount of Rs. 2 lakh to the respondent. Admittedly, the complainant is a retired person and he was getting the pension and in order to prove the same he had relied upon the document at Ex.P11 to show that he is a pensioner. The other contention of the petitioner's counsel is that the respondent is getting the pension only to the tune of Rs. 1,000/- but the contention of the respondent's counsel is that out of his retirement benefit, he had made the payment in favour of the petitioner and apart from that the complainant also relied upon the document at Ex.P9 -RTC extracts eight in numbers and also Ex.P10-patta book to show that he is also an agriculturist. When such being the factual aspects of the case, the very contention of the petitioner that respondent is not having source of income cannot be accepted and the same has been disputed by the Trial Court. 10. When such being the factual aspects of the case, the very contention of the petitioner that respondent is not having source of income cannot be accepted and the same has been disputed by the Trial Court. 10. The other contention of the petitioner's counsel is that notice was issued to the two address and no doubt, notice was issued to the two addresses and in the notice, PC number is also mentioned and also the petitioner not disputes the fact that he was working in Kamakshipalya police station as PC and when such being the facts of the case, notice is given to the working place and notice also issued through both UCP as well as registered post and registered post was returned with an endorsement 'intimation was delivered' and the Trial Court also considered the said aspect in paragraph 11 of the judgment and came to the conclusion that there was proper service of notice. Hence, this contention cannot be accepted. Both the Trial Court and Appellate Court have considered the aspect regarding issuance of notice is concerned. It is not the case of the petitioner that he was not working at Kamakshipalya police station at the time of issuance of notice and when such being the fact that notice was given to the correct address in which he was working as PC. The contention of the petitioner in this regard also cannot be accepted. 11. The other contention of the learned counsel for the petitioner that there was a delay in lodging the complaint and no notice was given before condoning the delay. The counsel for the respondent would submit that the matter has been attained its finality and now he cannot contend that no notice was given. Admittedly, the petitioner submits that the order of delay condonation was passed and immediately within four days, he was acquitted and same is not challenged. But the fact is that, the said order was challenged before the Appellate Court by the respondent herein and the Appellate Court remanded the matter in Crl.A. No. 465/2010 setting aside the order of acquittal. Admittedly, the petitioner submits that the order of delay condonation was passed and immediately within four days, he was acquitted and same is not challenged. But the fact is that, the said order was challenged before the Appellate Court by the respondent herein and the Appellate Court remanded the matter in Crl.A. No. 465/2010 setting aside the order of acquittal. When the matter was remanded to the Trial Court, the petitioner ought to have been raised the very same objection before the Trial Court and the same has not been done and already when the matter was attained its finality, the question of entertaining he application for condonation of delay in entertaining the complaint does not arise. When said facts are in the knowledge of the petitioner, now he cannot contend that delay was condoned without giving any notice and hence, the said argument is also cannot be accepted. 12. Having considered both the oral and documentary evidence available on record and the defence of the petitioner before the Trial Court is that he has given the cheque in favour of the son of the complainant and not in favour of the complainant and in this regard, no effective cross-examination was made and it is elicited that in order to get the loan, the guarantor also has to sign the loan application and no such loan document is signed as admitted by DW1 and apart from that he has not taken any action against the son of the complainant when he did not return the cheque and counsel also would submit that son of the complainant was not examined since admitted by PW1 that he was no more. But the fact is that when he had given the cheque to get the loan from the bank when he intended to avail loan from the bank and if no such loan was taken and cheque was not returned, the petitioner ought to have taken steps but no steps has been taken as rightly contended by the learned counsel for the respondent and the very theory of defence of the petitioner cannot be believed. Admittedly, the cheque-Ex.P1 was issued by the petitioner and in order to substantiate his defence, no rebuttal evidence is available before the Court except examining himself as DW1, no documentary evidence is placed before the Court to consider that he had issued the cheque as security in order avail loan from the bank to the son of the complainant and the material goes against the petitioner herein. Hence, I do not find any error committed by both the Courts in appreciating both the oral and documentary evidence. This Court can exercise the revisional jurisdiction only when this Court finds the perversity in the judgment of the Trial Court as well as the Appellate Court in not considering the cogent evidence available before the Court. When such being the factual aspects, this Court is of the opinion that both the Courts have properly considered the material available on record. Hence, it is not a fit case to exercise the revisional jurisdiction. 13. The counsel for the petitioner would submit that the Trial Court imposed the fine of Rs. 3 lakh though the cheque amount was Rs. 2 lakh which is higher side and the same is not commensurate with the loan transaction between the petitioner and the respondent. Hence, it may be modified. The counsel for the respondent would submit that though fine amount was imposed as Rs. 3 lakh, only awarded an amount of Rs. 2,75,000/- in favour of the respondent and Rs. 25,000/- shall vest with the State. 14. Having taken note that the transaction is of the year 2005, almost 17 years has been lapsed and the Trial Court also imposed only default sentence in view of the fine amount and not awarded any substantive sentence against the petitioner. When such being the factual aspects, it is not a fit case even to modify the fine amount. Hence, I do not find any grounds to invoke revisional jurisdiction to entertain the petition. Point No. 2: 15. In view of the discussions made above, I pass the following: ORDER The revision petition is dismissed.