Research › Search › Judgment

Karnataka High Court · body

2022 DIGILAW 458 (KAR)

Thimmaiah v. Eshwarappa

2022-04-04

H.P.SANDESH

body2022
JUDGMENT 1. This matter is listed for admission. 2. Heard the learned counsel appearing for the petitioner and the learned Counsel appearing for the respondent. 3. The factual matrix of the case of the complainant/respondent is that the complainant and the accused are close friends. The petitioner herein had approached for financial assistance of Rs.2.00 Lakhs for the purpose of his tractor business and discharge the hand loans availed from others. On 15/4/2013, the complainant had paid Rs.2.00 Lakhs to the accused at Bellur in the presence of witnesses, while receiving the amount; the accused had promised the complainant to return the same within three months. On the very same day, he had issued post-dated cheque dtd. 10/7/2013 in favour of the complainant. The petitioner did not repay the said loan amount within time. When the cheque was presented, it was returned with an endorsement as "Funds Insufficient". A legal notice was issued on 24/7/2013 and the accused did not reply to the said legal notice. Hence, a complaint is registered. The Trial Court took cognizance and thereafter secured the petitioner, he did not plead guilty. 4. The complainant in order to prove his case examined himself as P.W.1 and got marked the documents as Exs.P1 to P7(a). On the other hand, the petitioner/accused did not choose to enter the witness box and adduced any defense evidence, except cross-examining P.W.1. 5. The Trial Court after considering both oral and documentary evidence convicted the accused for the offence punishable under Sec. 138 of the N.I.Act and sentenced to pay a fine of Rs.3.00 Lakhs. In default to pay fine the accused shall undergo simple imprisonment for a period of one year. Being aggrieved by the judgment of conviction and order on sentence, an appeal is filed in Crl.A.No.179/2019 before the Appellate Court. The Appellate Court on re-appreciation of both oral and documentary evidence placed on record, confirmed the judgment of conviction and order on sentence passed by the Trial Court and dismissed the appeal. Hence, the present revision petition is filed before this Court. 6. The learned counsel appearing for the petitioner would vehemently contend that no opportunity was given to this petitioner and the learned counsel also would submit that there is preponderance of probability in favour of the petitioner. Hence, the present revision petition is filed before this Court. 6. The learned counsel appearing for the petitioner would vehemently contend that no opportunity was given to this petitioner and the learned counsel also would submit that there is preponderance of probability in favour of the petitioner. The learned counsel also would submit that the very defense before the Trial Court is that the cheque was given in favour of one Kumaraswamy in connection with chit fund. During the course of cross-examination, P.W.1 admitted that in the legal notice both himself and the said Kumaraswamy, have signed. The learned counsel also would submit that the cheque in question is not a valid cheque in terms of the guidelines issued by the RBI and the matter has to be remanded to the Trial Court to take the specific defense and rebut the evidence of the complainant. 7. Per contra, the learned counsel appearing for the respondent would submit that the cheque in question i.e., Ex.P1 is not denied and he admits the signature. Apart from that, the legal notice was issued and no reply was given and also no rebuttal evidence. In spite of an opportunity was given, the same was not utilized. Hence, both the Courts have not committed any error and even the Appellate Court also considered the contention that no opportunity was given and in detail discussed in the order for having given an opportunity and the said opportunity was not utilized. Hence, the learned counsel would submit that no grounds are made out to exercise the revisional jurisdiction. 8. Having heard the respective counsel and also on perusal of the material available on record, admittedly, no dispute with regard to the signature available on document " " Ex.P1. But only the defense before the Trial Court is that the cheque was given to one Kumaraswamy in connection with chit fund. No doubt, the learned counsel for the petitioner brought to the notice of this Court that in the admission, P.W.1 says that both the complainant as well as Kumaraswamy have signed the legal notice. On perusal of the document-Ex.P3, which does not contain the signature of the complainant as well as the said Kumaraswamy and the petitioner also not placed any material before the Court for having received the notice which contains the signature of the said Kumaraswamy and the complainant. On perusal of the document-Ex.P3, which does not contain the signature of the complainant as well as the said Kumaraswamy and the petitioner also not placed any material before the Court for having received the notice which contains the signature of the said Kumaraswamy and the complainant. Merely because the said admission of stray sentence that it contains the signature and the document does not contain the signature of Kumaraswamy. Hence, the said contention cannot be accepted. 9. The other contention is that no opportunity was given and admittedly P.W.1 was cross-examined and 313 statement of accused was also recorded. Thereafter, an opportunity was given to the petitioner to adduce defense evidence. From March to July, no such effort is made to lead any rebuttal evidence and even not examined the said Kumaraswamy to prove the defense. When such being the case, both the Trial Court as well as the Appellate Court considered the evidence available on record in order to consider the preponderance of probability also there must be a material before the Trial Court. Except the said answer elicited, no worthwhile cross-examination found in the cross-examination of P.W.1. No doubt, it is settled law that the rebuttal of the case of the complainant by way of two options. One is by effective crossexamination of complainant and another by leading cogent rebuttal evidence before the Court. In the case on hand, no probable rebuttal evidence is adduced while cross-examining P.W.1. I have already pointed out in the cross-examination of P.W.1, no effective cross-examination with regard to the defense, which was set out before the Trial Court. Hence, the preponderance of probability also not in favour of the petitioner since the petitioner has not probabilised the case as contended by the learned counsel for the respondent. Having considered the material available on record, the Trial Court also while considering the matter on merits discussed the evidence available on record, particularly, in paragraph No.18, discussed with regard to cross-examination of P.W.1. In paragraph No.19 also, the Trial Court held that it is the burden shifted on the accused to prove how the cheque - Ex.P1 gone to the hands of the complainant, the same is also not been proved. In paragraph No.20, drawn the presumption invoking Ss. 118 and 139 of the N.I.Act and the presumption also not rebutted while adducing any cogent evidence. In paragraph No.20, drawn the presumption invoking Ss. 118 and 139 of the N.I.Act and the presumption also not rebutted while adducing any cogent evidence. Hence, rightly comes to the conclusion that the complainant has proved the case. The Appellate Court also on re-appreciation of evidence available on record, particularly, in paragraph No.15, taken note of the evidence of P.W.1 and documentary evidence. In paragraph No.16, taken note of the issuance of the legal notice and no reply was given and comes to the conclusion that the presumption is in favour of the complainant and the same is not rebutted and in paragraph No.17 considered the total evidence and not accepted the defense of the petitioner. Hence, I do not find any error committed by both the Trial Court as well as the Appellate Court. While exercising the revisional powers, the Court has to look into the appreciation of matter both by the Trial Court as well as the Appellate Court. If any perversity is found in the appreciation of evidence, then, the Court can exercise the revisional jurisdiction. The Trial Court as well as the Appellate Court have not considered the cogent evidence available on record, then, also with regard to the correctness of the order of the Trial Court, the revisional Court can exercise the powers. Hence, I do not find any such circumstances warranted in the case on hand since no effective cross-examination of P.W.1. Apart from that, no rebuttal evidence on the part of the petitioner to rebut the case of the respondent/complainant. With regard to, no opportunity was given also, the same is against the records; in spite of opportunity was given the said opportunity is not utilized by the petitioner. Hence, question of remanding the matter as sought for by the learned counsel for the petitioner does not arise. It is the matter of the year 2013 and the case was also disposed of before the Trial Court in the year 2019; almost a decade has been elapsed and no meaning in remanding the matter almost after a decade to give an opportunity to the petitioner/accused to adduce evidence. Hence, I do not find any merit to admit the revision petition. 10. In view of the discussions made above, I pass the following: ORDER The Revision Petition is dismissed.