1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10th DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.1084/2019 C/W CRIMINAL REVISION PETITION NO.1083/2019 IN CRIMINAL REVISION PETITION NO.1084/2019: BETWEEN: 1 . SMT. MANGALA G., W/O. SURESH KUMAR, AGED ABOUT 36 YEARS R/AT NO.83, 3RD CROSS, CHIKKAMMA BUILDING, 3RD MAIN, NAGASANDRA POST, MANJUNATHNAGAR, BENGALURU-560 073. … PETITIONER (BY SRI P. PRASANNA KUMAR, ADVOCATE) AND: 1 . SMT. LAKSHMI B., W/O. SATHYANARAYANA B, AGED ABOUT 38 YEARS R/AT NO.62, HEMALATHA BUILDING, 2ND CROSS, 6TH MAIN ROAD, NAGASANDRA POST, ISMAIL GARDEN, MANJUNATHANAGAR, BENGALURU-560 073. … RESPONDENT (BY SRI HARISH KUMAR M.C., ADVOCATE) 2 THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 02.11.2018 PASSED IN C.C.NO.8917/2016 ON THE FILE OF THE SMALL CAUSES JUDGE AND XXVI A.C.M.M AT BENGALURU BY CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT AND ALLOW THE APPEAL AND ACQUIT THE PETITIONER AND TO SET ASIDE TEH JUDGMENT AND ORDER DATED 29.06.2019 PASSED IN CRL.A.NO.2439/2018 ON THE FILE OF THE LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY AND ACQUIT THE PETITIONER FOR THE AFORESAID OFFENCE. IN CRIMINAL REVISION PETITION NO.1083/2019: BETWEEN: 1 . SMT. MANGALA G., W/O SURESH KUMAR, AGED ABOUT 36 YEARS R/AT NO.83, 3RD CROSS, CHIKKAMMA BUILDING, 3RD MAIN, NAGASANDRA POST, MANJUNATHANAGAR BENGALURU – 560 073. … PETITIONER (BY SRI P. PRASANNA KUMAR, ADVOCATE) AND: 1 . SMT. H.T. PARVATHAMMA W/O NINGAIAH AGED ABOUT 46 YEARS R/AT NO.40, 2ND CROSS, ISMAIL GARDEN NAGASANDRA POST 3 MANJUNATHANAGAR BENGALURU – 560 073. … RESPONDENT (BY SRI NATARAJ D., ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 02.11.2018 PASSED IN C.C.NO.1290/2016 ON THE FILE OF SMALL CAUSES COURT AND XXVI ADDL.C.M.M., BENGALURU BY CONVICTING THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE INSTRUMENTS ACT AND ALLOW THIS CRL.RP AND ACQUIT THE PETITIONER AND TO SET ASIDE THE JUDGMENT AND ORDER DATED 29.06.2019 PASSED IN CRL.A.NO.2440/2018 ON THE FILE OF LXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ACQUIT THE PETITIONER FOR THE AFORESAID OFFECE. THESE CRIMINAL REVISION PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 08.01.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER 1. Heard the learned counsel for revision petitioner and also the learned counsel for respondent in both the revision petitions. 2. These two revision petitions are filed against the concurrent finding of conviction and sentence and taken up 4 together since complaint is same and accused persons are different but same set of facts and defenses in both the matters. Hence, taken up for common disposal. 3. The factual matrix of case of Crl.R.P.No.1084/2019 wherein complainant while filing the complaint invoked offence punishable under Section 138 of Negotiable Instruments Act. It is contended that complainant and accused well known to each other since several years and complainant during the month of 2nd week of June-2015, took financial help to the tune of Rs.5,00,000/- to fulfill the accused domestic necessities and promised to pay the amount within 4 months, but fail to pay the amount and hence on demand, the subject matter of Cheque dated 15.11.2015 was issued and the same was dishonored with an endorsement ‘ funds insufficient ’ and legal notice was given. The notice was returned with an endorsement ‘addressee refused’ and notice sent through speed post is not returned despite the receipt of notice, 5 accused has neither paid the Cheque amount nor replied to the same and hence filed the complaint and cognizance was taken and the accused was summoned before the Court and he did not plead guilty and hence, the complainant himself examined as PW1 and got marked Ex.P1 to Ex.P10 and accused was also subjected to 313 statement and the accused examined himself as DW1. The Trial Court having considered both oral and documentary evidence placed on record, convicted the accused and sentenced a Rs.5,25,000/-. Being aggrieved by the said judgment of conviction and sentence, an appeal is filed in Crl.A.No.2439/2018. The First Appellate Court on re-appreciation of material on record, confirmed the judgment of Trial Court. 4. In Crl.P.No.1083/2019 the case of the complainant that both of them are known to each other and accused sought for financial assistance of Rs.6,00,000/- for the purpose of construction of house and the same was 6 advanced and promised to repay the same within 6 months and after lapse of 6 months, fail to pay the amount and hence on demand issued the Cheque and the same was returned with an endorsement ‘ funds insufficient ’ and legal notice was issued and refused and returned to sender and hence complaint was filed and cognizance was taken and accused was secured and did not plead guilty and hence, complainant herself examined as PW1 and got marked 5 documents and accused was subjected to 313 statement and accused examined herself as DW1. The Trial Court having considered both oral and documentary evidence placed on record, ordered to pay compensation of Rs.6,30,000/-. Being aggrieved by the said conviction and sentence an appeal is filed in Crl.A.No.2440/2018. On re-appreciation, the First Appellate Court confirmed the judgment and sentence and hence the present revision petition is filed. 7 5. In Crl.R.P.No.1084/2019, the counsel appearing for the revision petitioner would vehemently contend that there is no proof of source of income to make the payment of Rs.5,00,000/- and no witnesses have been examined and only relied upon the husband’s passbook. It is also contended that petitioner, respondent and also other complainant are the members of Srisangha and Trial Court fails to consider all these material on record and committed an error in convicting and sentencing. The First Appellate Court also committed an error in confirming the judgment of the Trial Court. Hence, it requires interference. 6. In support of his argument, counsel also relied upon the judgment reported in (2024) 8 Supreme Court Cases 573 in case of Dattatraya V/s Sharanappa and counsel brought to notice of this Court discussion made in paragraph No.23 with regard to the non-existence of the death or liability either through conclusive evidence and also brought to notice of this Court paragraph No.29 8 wherein discussion was made regarding no financial capacity or acknowledgment in his income tax returns by the appellant to the effect of having advanced a loan to the respondent. The counsel by referring this judgment would vehemently contend that this Court has to exercise the revisional jurisdiction since both the Courts have committed an error. 7. Per Contra, the counsel appearing for the respondent/complainant would contend that they have not challenged the signature though denied the same and not sought any expert opinion. It is admitted fact that all of them are known to each other and admitted the transaction while making the suggestion to the witness. It is admitted that she was running the business of tailoring and the fact that took the premises for lease also not in dispute.The fact that husband also not working is not in dispute and brother of the complainant is working in abroad is also not in dispute. The Trial Court in detail discussed the same and 9 admitted cases are registered against her with regard to the chit transaction and known cheater and no reply was given, however, admits the notice. The Trial Court relied upon Ex.P1 to Ex.P10 and rightly convicted and First Appellate Court also rightly re-appreciated the material. 8. In reply to this argument, the counsel brought to notice of this Court, the admission of PW1 in cross- examination at page Nos.6 and 7. 9. In respect of Crl.R.P.No.1083/2019, the counsel appearing for the revision petitioner would contend that loan is borrowed for construction of house and no such house was constructed and also with regard to source it is stated that amount was paid in cash and the same was in house. But, in the cross-examination admits that amount was drawn from the bank but claims that having cash which is contradictory to each other and no witnesses are examined and admittedly she is a house wife and not a income tax assessee. The counsel also brought to notice of 10 this Court Ex.P3 dated 20.11.2015 and Ex.P5(a) when the notice was opened on different dates and both the Courts fails to consider the admission of PW1. 10. Per Contra, the counsel appearing for the respondent would vehemently contend that PW1 in the cross-examination, admitted signature that he had signed all the Cheques. It is also contended that in the cross- examination of PW1 suggested that amount of her husband and her. When the source is disputed and when such submission is made, amount belongs to her and her husband now cannot argue contending that no source of income. Legal notice was issued and no reply was given. Both the Courts taken note of the material available on record, though disputes the Cheque, not sent the same for handwriting expert and the fact that defense is taken that Cheque book was brought by daughter of the complainant, but no action was taken for non return of Cheque book and the same is admitted. Both the Courts taken note of the 11 said facts into consideration and rightly convicted and sentenced. The First Appellate Court also on re-appreciation both oral and documentary evidence placed on record, confirmed the same. 11. Having heard the revision petitioner’s counsel and also the counsel appearing for the respondent and also the principles laid down in the judgment referred supra, the points that would arise for consideration of this Court are: 1) Whether the Trial Court and First Appellate Court committed an error in conviction and sentence and confirming the order and whether it requires exercising of revisional jurisdiction in C.C.No.8917/2016 and Crl.A.No.2439/2018? 2) Whether the Trial Court and First Appellate Court committed an error in conviction and sentence and confirming the order and whether it requires exercising of revisional jurisdiction in C.C.No.1290/2016 and Crl.A.No.2440/2018? 12 3) What Order? Point No.1: 12. Having heard the revision petitioner’s counsel and also the counsel appearing for the respondent, it is the case of the complainant that in the 2nd week of June, accused had approached her for financial help of Rs.5,00,000/- to meet her domestic need and considering the need, she paid an amount of Rs.5,00,000/- and after lapse of 4 months, when the complainant approached, she has issued the subject matter of Cheque i.e., 15.11.2015 and the said Cheque was presented and dishonored and legal notice was issued and not given any reply. It is important to note that the main contention of the counsel appearing for the petitioner is that no proof of source of income. 13. The counsel for the respondent brought to notice of this Court PW1 categorically admitted that she was 13 having Rs.5,00,000/- out of her income, but no document is produced, but relied upon the document of Ex.P7 which is passbook of her husband. The counsel also contend that husband’s passbook is produced wherein no such amounts are available and also material discloses that complainant and accused are known to each other and there is a pleading to that effect also and the same is not disputed. It is the claim of the complainant that she is doing tailoring business from last 15 years and photographs are also produced as Ex.P9 that she is running tailoring shop at Mayanna layout and also took the premises for lease. 14. It is also important to note that when the accused examined as DW1, though denied that she is not having any job, but categorically admits that complainant’s husband is working in the garments and also admits that complainant was running tailoring shop at Mayanna layout earlier, but not knows about the present, but also admits that account was opened in the year 2014 and Cheque 14 Ex.P1 belongs to her but she also admits that 2 times she took the Cheque from the bank. 15. It is important to note that when the source is disputed, DW1 admitted that she was doing tailoring business and having a shop at Mayanna layout and though denied the same, there is an admission. Apart from that admitted the fact that husband of the complainant also working and hence the very contention that no proof of source cannot be accepted. It is also important to note that she also admits that other complainant Parvathamma also filed a case against her and also suggestion was made that she has given Cheque to the several persons and the same was denied, but admits that with regard to the chit transaction is concerned, Peenya Police have registered the case against her. It is the case of the complainant that notice was also issued and in the cross-examination DW1, admits that at the time of issuance of notice, she was residing in the very same address, but though contend that 15 she has not refused the same, but categorically admits that notice was served on her mother-in-law, but no reply was given and when no reply was given, during the course of cross-examination, different defense was taken and in order to prove the fact that complainant is running tailoring business, produced the document Ex.D8 and Ex.D9 and also admitted in the cross-examination that earlier she was running the business, but not aware at present. These are the facts which were taken note of by the Trial Court as well as the First Appellate Court. The Trial Court also taken note of the fact that though denied the Cheque does not bears her signature and disputed the Cheque and not sent the same for expert opinion. The First Appellate Court in paragraph No.19 taken note of the said fact. When the Cheque is disputed, ought to have sent the same for handwriting expert and the same has not been sent and also the fact that defense is taken that daughter of another complainant Kavya collected the Cheque book from the 16 bank, but she did not return the same, no complaint was given against her and also admitted that no intimation is given to the bank not to honor the Cheque, no action was taken, but only a self statement is made that Cheque was collected by one Kavya, but she did not return the Cheque after collecting the same, but no action was taken, but all these facts were taken note of by the Trial Court while appreciating the material on record and in the absence of any perverse finding, it does not requires any interference. These are the material available on record and I do not find any perverse finding either by the Trial Court or by the First Appellate Court and both the Courts applied their judicious mind and taken note of both oral and documentary evidence placed on record and in the absence of any perversity and when there are categorical admissions that having acquaintance with each other and also the members of Srishakthi Sanga, there is no any error on the part of the Trial Court Trial Court and First Appellate Court in 17 considering the material on record and hence answered the point as negative. POINT No.2: 16. In this revision petition, the very case of complainant is that in order to construct the house, borrowed an amount of Rs.6,00,000/- and did not repay the same and on demand, issued the Cheque and the same was returned with an endorsement. The main contention of the counsel that no house was constructed but the fact emerged that construction was made by her father-in-law and also the contention that there are contradictions in the evidence and the same has not been considered. No doubt in the cross-examination of PW1, she has stated that having acquaintance with each other and she is running Srishakti Sanga, but in the very suggestion to the PW1, it is suggested that Rs.6,00,000/- belongs to her husband and belongs to her and the same is got admitted by the defense counsel in the cross-examination of PW1 and also even 18 suggestion was made that the said amount was kept in the bank, but the same was denied and once the said suggestion was made that Rs.6,00,000/- belongs to her and her husband earned money cannot contend that there is no any source of income. No doubt in the cross-examination elicited regarding the Swasahaya Sangha and also admitted that she is having a daughter by name Kavya and also admitted that Cheque book might have been collected by her daughter, but in the evidence of the accused herself, categorically admitted regarding construction of the house, but her father-in-law started construction and also admits the case filed against her by one Lakshmi and she denies the signature available in Ex.P1 and even suggested that signature available in Ex.P1(a) and her Vakalath are one and the same, but denies the same, however admits the address mentioned in Ex.P3 and Ex.P5 belongs to her. However, she admits she had signed all the Cheques but only says that Ex.P1 Cheque is not belongs to her. Once she 19 admits that she admits that she had signed all the Cheques and if really Cheque does not contain her signature ought to have sent the same for handwriting expert and no such application was filed. Even she admits that she cannot tell when she gave the Cheque to said Kavya, but she claims that she demanded to return the Cheque twice, but she has not given any complaint for having misused the Cheque and also no notice was given and also admits that registration of case against her in Yeshwanthpur Police Station in connection with the chit transaction. 17. Having perused the material available on record, it is clear that she admits having registered the case against her in different Police Station regarding her chit transaction and also material available on record that though denied the signature and signatures are not sent to the handwriting expert and also no complaint was given when the Cheque was not returned by Kavya, the daughter of the complainant and mere taking an assistance of 20 collecting of Cheque from the bank through Kavya and the very defense theory of the revision petitioner that Cheques are not returned cannot be accepted, but she categorically admitted that she had signed all the Cheques and in one breath she claims that she signed the Cheque and other breathe she says that she has not signed the Cheque. The First Appellate Court taken note of the fact that when the signature available in Ex.P1(a) is disputed, ought to have been sent the same for handwriting expert. 18. It is also important to note that no complaint was given against the said Kavya who is none other than the daughter of the complainant, when the Cheque book are not returned and also the Court has to take note of the conduct for having registered the case against her in different Police Station with regard to the chit transaction is concerned and when such being the case, when both the Courts appreciated the material available on record and defense taken has not been substantiated by producing any 21 rebuttal evidence, except examining herself and the admissions takes away the case of the revision petitioner and no reply was given to the notice issued to the accused and immediately would have taken such defence in the reply, but no such reply was given. Hence, I do not find any ground to exercise the revisional jurisdiction. Hence, I answered the points as Negative. 19. In view of the discussions made above, I pass the following: ORDER Both the revision petitions are dismissed. Sd/- (H.P. SANDESH) JUDGE RHS