1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.1188/2016 BETWEEN: SRI. VASANTHA SHETTY, S/O RAMANNA SHETTY, AGED ABOUT 53 YEARS, RESIDING AT NO.20, 1ST FLOOR, RAMADEEP BHAVAN, 13TH CROSS, 4TH MAIN, VYALIKAVAL, BENGALURU-560 003. … PETITIONER (BY SRI. T.P.RAJENDRA KUMAR SUNGAY, ADVOCATE) AND: SRI. B. UMESH, S/O LATE B. BORAIAH, AGED ABOUT 56 YEARS, NO.16, 1ST FLOOR, 11TH CROSS, VYALIKAVAL BENGALURU-560 003. … RESPONDENT (BY SRI. PRABHAKAR L. SHETTY, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 18.08.2016 PASSED BY THE LVIII ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-59), BENGALURU CITY IN CRL.A.NO.648/2015 AND SET ASIDE THE ORDER DATED 04.04.2015 PASSED BY THE XXI ACMM, BENGALURU IN C.C.NO.20280/2013. 2 THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 14.03.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER Heard the learned counsel for the petitioner and the learned counsel for the respondent. 2. This revision petition is filed challenging the judgment of conviction and sentence passed in C.C.No.20280/2013 and also confirmation order passed in Crl.A.No.648/2015. 3. The factual matrix of the case of the complainant before the Trial Court is that the accused during the end of December 2010 to meet his financial necessities requested the complainant to lend hand loan of Rs.3 lakhs and assured to repay the same within one year. The complainant paid a sum of Rs.3 lakhs to the accused and his wife on 31.12.2010. The accused and his wife have executed on demand pronote in favour of the complainant by borrowing loan. During July 2013, after repeated requests and demand for repayment of loan, the accused issued a cheque bearing No.381058 dated 08.07.2013 3 for Rs.3 lakhs drawn on Vijaya Bank, Sankey Road, Bengaluru. When the said cheque was presented for encashment, it was dishonoured with bank endorsement as “funds insufficient”. The same was communicated to the accused through legal notice and the same was duly served on the accused. Inspite of service of notice, the accused failed to pay the cheque amount within the stipulated period and hence complaint was filed. The Trial Court took the cognizance and secured the accused and he did not plead guilty and hence the complainant examined himself as P.W.1 and examined two witnesses as P.W.2 and P.W.3 and got marked the documents at Exs.P.1 to 8. The accused was subjected to 313 statement and he examined himself as D.W.1 and examined one witness as D.W.2 and got marked the documents at Exs.D.1 and 2. The Trial Court having considered the material on record, accepted the case of the complainant and the defence theory of the accused that the amount was taken from the brother of the complainant one Sri B.Mohan and repaid the same and there was no any transaction with the complainant, was not accepted and convicted the accused and passed an order of sentence to pay the amount of Rs.3,10,000/-. 4 4. Being aggrieved by the said order, criminal appeal was filed and the Appellate Court on re-appreciation of both oral and documentary evidence placed on record comes to the conclusion that the case of the complainant is probable than the case of the accused and the learned Magistrate has rightly appreciated both oral and documentary evidence placed on record and though considered the document of Ex.D.1, the accused has not produced any document to show that the said cheques were encashed and as on the date of borrowing the amount i.e. on 31.12.2010, the accused had cash in his hand and dismissed the appeal. 5. Being aggrieved by the judgment of conviction and confirmation, the present revision petition is filed before this Court. 6. The main contention of the learned counsel for the petitioner is that the Courts below committed an error in not considering the evidence of D.W.1 and D.W.2 in a proper perspective and committed an error in relying upon the evidence of P.W.1 to P.W.3. P.W.1 and P.W.2 states that on demand pronote were drafted by the advocate in the shop of the 5 complainant, but P.W.3 states that he signed the on demand pronote as witness in the office of the advocate. The material contradictions are not taken note of by both the Courts. The learned counsel contend that the respondent claimed to have lent a huge amount of Rs.3 lakhs without interest. The petitioner has categorically denied the transaction alleged to have taken place and specific contention was taken that he had borrowed loan of Rs.50,000/- from one B.Mohan, who was doing money lending business and had given blank on demand promissory note and two signed blank cheques and the said Mohan did not return the same even after repayment of money and the complainant is the brother of the said Mohan and he had misused the said cheque to file a false case. The learned counsel contend that the Courts below ought not to have believed the evidence of P.W.2 and P.W.3, since P.W.2 is an employee under the complainant and P.W.3 happened to be a friend of the complainant and both of them are interested witnesses. The learned counsel contend that the petitioner placed on record the document of Ex.D.1 that there was a sale agreement and he had received an amount of Rs.15 lakhs as advance and there was no need for the petitioner to borrow 6 money from the complainant. The learned counsel contend that making of payment of liquid cash of Rs.3 lakhs is against the provision of Section 269(SS) of the Income Tax Act. Hence, prayed this Court to set aside the order of the Trial Court. 7. Per contra, the learned counsel for the respondent would contend that there is a clear admission on the part of D.W.1 and D.W.2. D.W.1 in his evidence though claims that he had returned the money in the presence of his friend one James, in the cross-examination, he admits that he agreed to sell his house in terms of Ex.D.1. He further admits that after entering into the agreement, his daughter’s marriage was fixed and the marriage was performed on 16.10.2011 and also admits that the sale deed was executed after three months of Ex.D.1. It is suggested that he had borrowed the amount in December 2010 and the said suggestion was denied. It is also suggested that while receiving the money, he promised that he would return the money after selling the property within one year and the said suggestion was denied. It is suggested that he himself and his wife executed pronote and the witness admits the signature available on Ex.P.8, but says that he has not executed the document. It is suggested that inspite of he had executed the 7 document and given the cheque, now in order to avoid the liability he is falsely deposing before the Court and the said suggestion was denied. The learned counsel referring this evidence of D.W.1 would contend that when there is a clear admission on the part of D.W.1 that after the execution of Ex.D.1 only the marriage of his daughter was fixed, now he cannot contend that he has not borrowed the money. 8. The learned counsel contend that D.W.2 categorically admits that he is having experience in giving evidence and also attending the Court and his evidence cannot be relied upon. The learned counsel contend that when the document of Ex.P.2 and Ex.P.8 are admitted and in the absence of cogent evidence, this Court cannot exercise the revisional jurisdiction, unless there is a perversity in the finding of both the Courts. Hence, the revision petition is liable to be dismissed. 9. Having heard the learned counsel for the petitioner and the learned counsel for the respondent and also considering the grounds urged in the revision petition as well as oral submission of the respective learned counsel, the points that arise for the consideration of this Court are: 8 (i) Whether the Courts below have committed an error in convicting the accused and confirming the same and whether it requires interference of this Court by exercising the revisional jurisdiction? (ii) What order? Point(i): 10. Having considered the material on record, the complainant has contended in the complaint that during the end of December 2010 to meet his financial necessities, the accused requested the complainant to lend hand loan of Rs.3 lakhs and assured to repay the said amount within one year. It is also the case of the complainant that he paid Rs.3 lakhs on 31.12.2010 and the accused and his wife have executed on demand pronote in favour of the complainant, but did not repay the amount and on persistent demand, he had issued the subject matter of the cheque. When the said cheque was presented, the same was dishonored with an endorsement “funds insufficient”. It is not in dispute that the notice was issued. The complainant in terms of the legal notice Ex.P.3, reiterated the said averment and notice was also served and reply was given in terms of Ex.P.8. No doubt, the accused took the specific defence in the reply denying 9 the averments made in the notice and contended in paragraph No.5 that nowhere their clients have executed any on demand pronote in favour of the complainant and also contend that no such cheque was issued to the complainant. In paragraph No.8, it is the contention that he is having transaction with one Sri Mohan and he had borrowed a sum of Rs.50,000/- from the said Mohan and for the guarantee they issued the said blank cheque to the said Mohan in the year 2010 and repaid the amount in September 2011 to the said Mohan and requested to return the blank cheque issued for guarantee and he replied that the cheque was misplaced and assured to return the same and hence he kept quiet and in the meanwhile, the said Mohan passed away and did not return the cheque and the said cheque is misused. 11. Having considered the notice and reply, there is no dispute with regard to the issuance of cheque, but the contention of the petitioner is that the cheque was issued in favour of Sri Mohan and he also repaid the amount and the very execution of on demand pronote and cheque in favour of the complainant was denied. But in the reply notice not stated anything about the execution of on demand pronote in favour of 10 Mohan and only pleads with regard to availing of loan of Rs.50,000/- from Mohan and for guarantee he issued the said cheque and repaid the amount. Having perused the evidence of D.W.1, there was an improvement that he and his wife gave two cheques and also an empty on demand pronote as security. First time the same was pleaded with regard to the execution of on demand pronote by himself and his wife for security, but not stated anything about the issuance of two cheques and only reply was given about issuance of subject matter of the cheque and there is an improvement in the evidence of D.W.1. It is important to note that Ex.D.1 was placed as defence evidence. No doubt, on perusal of Ex.D.1, the accused had agreed to sell the property for sale consideration of Rs.49,28,000/- and advance payment was made by issuing three cheques, all dated 03.11.2010 and agreement is also dated 03.11.2010. The contention of the learned counsel for the petitioner before this Court is that he had received an amount of Rs.15 lakhs as advance and there was no need for him to borrow the money from the complainant. But in the cross-examination, D.W.1 admits that after execution of the sale agreement, his daughter’s marriage was fixed and the marriage of his daughter was 11 performed on 16.10.2011, but the sale agreement is dated 03.11.2010, almost 11½ months. He also admits that the sale transaction was taken place after three months of sale agreement. The Appellate Court also observed that the cheques are given, but no material is placed for encashment of the cheques. In the cross-examination, specific suggestion was made about execution of on demand pronote and though he admits his signature, but says that he did not execute the pronote. But Ex.P.8 is clear that both husband and wife have executed the pronote. 12. On perusal of Ex.P.1 cheque, it is very clear that the husband only gave the cheque dated 08.07.2013. The evidence of the complainant is specific that the accused had borrowed the amount and at the time of borrowing the loan, Ex.P.8 pronote was executed and on persistent demand, cheque dated 08.07.2013 was issued. Hence, it is clear that at the time of availing loan, cheque was not issued, but only on demand pronote was executed. But the defence of the accused is that on the date of availing of loan of Rs.50,000/- from Sri Mohan, cheque was given. Having considered this material on record as well as the evidence of P.W.1, though P.W.1 admits that his 12 brother Mohan passed away, nothing is elicited with regard to the defence set out by the accused that amount was borrowed from Mohan. He categorically admits that after bouncing of the cheque, he gave notice to both the accused and his wife and admits that wife of the accused was not made as a party since the accused only gave the cheque. In order to prove the defence, nothing is elicited in the cross-examination of P.W.1. In the absence of perversity in the finding of the Trial Court and the Appellate Court, the question of entertaining the revision does not arise. 13. No doubt, the learned counsel for the petitioner brought to the notice of this Court the contradiction in the evidence of P.W.3 with regard to the execution of the document of on demand pronote when the suggestion was made that he had signed the document in the office of the advocate. P.W.1 and P.W.2 in the chief evidence says that Ex.P.8 pronote was prepared in the shop of the complainant. When the suggestion was made to P.W.3 and admitted and mere place of execution of document at different place, will not take away the case of the complainant when the document of pronote was executed at the time of availing the loan. But the fact that the same was 13 prepared by an advocate was not disputed. The very suggestion made to P.W.3 is that he himself, complainant, advocate Sri Ravi Kumar and Sri Venkatesh Murthy signed the document in the office of the advocate and hence the said suggestion itself clearly discloses that the document of pronote was executed. Hence, the non-consideration of the said admission will not go to the very root of the case of the complainant when the document of Ex.P.1 cheque and Ex.P.8 pronote are admitted. For having repaid the amount also, nothing is placed on record though it is contended that Rs.50,000/- was borrowed from Sri Mohan, the brother of the complainant and repaid the same. If really he had repaid the amount, he would have collected both the cheque and pronote from Sri Mohan and though contend that he had assured to return the cheque, but he did not return the cheque during his life time and no action was taken by the petitioner for non-return of the cheque since he contend that he made the repayment in September 2011 itself. The case of the complainant is that the cheque was given in 2013 and thereafter when the cheque was presented and bounced, legal action was taken in 2013 and for the period from 2011 to 2013 till initiation of the proceedings, no attempt was made by the revision 14 petitioner to get back the cheque and hence the very contention of the learned counsel for the petitioner cannot be accepted. In the absence of any perversity in the order of the Trial Court and the Appellate Court, the question of exercising the revisional jurisdiction does not arise and hence I do not find any ground to exercise the revisional jurisdiction to reverse the finding of both the Courts. Point(ii): 14. In view of the discussions made above, I pass the following: ORDER The criminal revision petition is dismissed. Sd/- (H.P. SANDESH) JUDGE MD