1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CRIMINAL REVISION PETITION NO.1114/2015 BETWEEN: L.N. NAGARAJU S/O NANJAPPA, AGED ABOUT 46 YEARS, SOYAKA, SRI BAHUBALI POLYTICHNIC COLLEGE, SRAVANABELAGOLA, CHENNARAYAPATNA, HASSAN-573 135. … PETITIONER (BY SRI. H.A.RAMALINGE GOWDA, ADVOCATE) AND: K. PREMA W/O MANJUNATH, AGED ABOUT 32 YEARS, R/AT NO.32, MADHAVA NILAYA, HEMAATHI ROAD, GRUHALAKSHMI LAYOUT, BASAVESHWARANAGAR, BENGALURU-79. … RESPONDENT THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401(5) OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE AND FINE IMPOSED VIDE JUDGMENT AND ORDER DATED 14.01.2015 2 PASSED BY THE XVI ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.11968/2008 AND FURTHER BE PLEASED TO SET ASIDE THE JUDGMENT DATED 18.08.2015 PASSED BY THE LXII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU(CCH:63) IN CRL.A.NO.214/2015 AND FURTHER BE PLEASED TO PASS ORDER COMMENSURATING FACTS AND CIRCUMSTANCES OF THE CASE AND ACQUIT THE PETITIONER AND ETC. THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER This petition is filed challenging the judgment of conviction and sentence dated 14.01.2015 passed in C.C.No.11968/2008 for the offence punishable under Section 138 of NI Act by the Trial Court and the judgment dated 18.08.2015 passed in Crl.A.No.214/2015 by the First Appellate Court. 2. Heard the learned counsel appearing for the petitioner. Though respondent served, unrepresented. 3 3. The factual matrix of the case of the complainant before the Trial Court that the accused being known to the complainant, approached her on 12.11.2007 and obtained a hand loan of Rs.1,20,000/- from her to meet his financial necessities agreeing to repay the said amount within a month and to discharge his liability, accused issued a subject matter of Cheque dated 11.01.2008 for the said amount. On presentation of the said Cheque, the same was dishonoured with an endorsement ‘funds insufficient’ and hence, legal notice was issued calling upon the accused to repay the loan amount and the same was served, but, reply was not given and hence, the complaint was lodged and cognizance was taken and accused was secured before the Trial Court and he did not plead guilty and claims trial. Hence, the complainant examined herself as PW1 and also examined one more witness as PW2 and got marked the documents at Ex.P1 to P10. On the other hand, the accused was subjected to 313 statement and also led defence evidence by examining himself as DW1 and also examined one more witness as DW2. 4 4. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that it is not in dispute that Cheque at Ex.P1 belongs to the accused and signature found in the said Cheque is also belongs to accused. But it is the contention of the complainant that she made the payment of Rs.1,20,000/- and accused set up a defence that he had received an amount of Rs.20,000/- from Mahadevappa who is none other than the brother of the complainant and also deposed that he himself and said Mahadevappa were working in the PWD and he does not know the complainant and he further deposed that he had repaid the amount of Rs.10,000/- to Mahadevappa and he had to pay balance of Rs.10,000/- and regarding payment of balance amount is concerned, a galata was took place between him and the said Mahadevappa. Hence, he had executed Ex.P10 for an amount of Rs.10,000/- and in the said document, the said amount of Rs.10,000/- was made as Rs.1,00,000/- and Cheque which was issued for Rs.20,000/- also manipulated as Rs.1,20,000/-. The Trial Court having considered both oral and 5 documentary evidence placed on record accepted the evidence of PW1 and PW2 and did not accept the defence of the accused and presumed that the Cheque is issued for legally enforceable debt and also comes to the conclusion that legal notice issued presumed to be served on the accused and convicted and sentenced the accused for the offence punishable under Section 138 of NI Act. Being aggrieved by the said order, the accused preferred an appeal before the First Appellate Court in Crl.A.No.214/2015. 5. In Crl.A.No.214/2015 also similar grounds were urged by the accused and the First Appellate Court taken note of the fact that Ex.P1 goes to show that whenever a person fills up the amount in figures in the cheque, he starts from nearest point of rupees and not by leaving any space. On perusal of Ex.P1 goes to show that there are no signs of material alteration, though the signature of accused is in black ink and other contents are in blue ink. Accused has categorically contended that he has issued the cheque to Mahadevappa by writing Rs.20,000/- in figures only. But the same is manipulated. 6 Except the signature of the accused, all other contents of the Cheque are in blue ink. If the accused has written the amount of Rs.20,000/- in figures in the Cheque, at the time of issuing to Mahadevappa, then, the said portion should be in black ink. But it is not so and hence, not accepted the defence of the accused and confirmed the judgment of the Trial Court in coming to the conclusion that presumption is applicable under Section 139 of NI Act and same has not been rebutted and also comes to the conclusion that Ex.P10 discloses that it is written by accused wherein he has mentioned that one Prema of Saptagiri Finance has filed a complaint against the accused for Rs.1,00,000/- and there is a warrant pending against the accused in this case and he settled the matter within short period the though, accused deposed that said document was got by the police at behest of the complainant by force, but no such evidence is forthcoming and did not accept the defence of the accused and confirmed the judgment of the Trial Court. 6. In this petition, the learned counsel for the petitioner would vehemently contend that both the Courts have not 7 appreciated the cross-examination of PW1 and PW2 though they categorically admitted that they have not produced any documents to show that the complainant is capable woman to lend huge amount of Rs.1,20,000/- to the petitioner. It is also contended that the Cheque was altered by inserting “1” as against “20,000/-“ and both the Courts have not observed the same and also in respect of Ex.P10, in front of Rs.10,000/-, respondent has inserted another “0” [zero] and made the same as Rs.1,00,000/- instead of Rs.10,000/- and hence, Ex.P11 and P10 not properly appreciated by both the Courts. It is also contend that if any payment is made more than Rs.20,000/-, same must be made through Cheque. Non-compliance of provisions of Section 263 SS of Income Tax Act also not taken note of by both the Courts. It is also contend that both the Courts have not considered the defence evidence of DW1 and DW2 that he had borrowed only an amount of Rs.20,000/- from Mahadevappa not from the complainant and fails to take note of the answer elicited from the mouth of witnesses that the accused came to know about filing of case against him by the sister of the said Mahadevappa only after payment of Rs.10,000/- and 8 specifically admitted that the said Mahadevappa and the accused were working together and there was a transaction between them and not with the complainant. The counsel also would vehemently contend that when Ex.P1 is materially altered, ought not to have convicted the petitioner and sentenced. The said defence, cheque and undertaking as per Ex.P1 and P10 is only for Rs.20,000/- and 10,000/- respectively and the same was altered in both the documents but fails to consider the same. Hence, this Court has to exercise the revisional jurisdiction. 7. Having heard the learned counsel appearing for the petitioner and on perusal of the material available on record, the points that would arise for the consideration of this Court are? 1. Whether both the Courts have committed an error in appreciating the evidence and whether it amounts to perversity and suffers from its legality and correctness and whether this Court can exercise the revisional jurisdiction? 2. What order? 9 Point No.1: 8. Having heard the learned counsel appearing for the petitioner and on perusal of the material available on record, it discloses that the specific case of the complainant that the accused approached her and taken the hand loan of Rs.1,20,000/- to meet his financial necessities and accused promised to repay the same within a month and to discharge his liability, he had issued the Cheque. Having perused the material available on record, it discloses that the accused also not disputes his signature and issuance of Cheque. His only defence is that there was no transaction between the complainant and himself and the transaction taken place between one Mahadevappa and himself. It is important to note that in the defence, specific question was put to the witness - PW1 with regard to the name of Mahadevappa, she categorically admits that the said Mahadevappa is her brother and categorical admission was given that he is working in PWD at Shravanabelagola and accused is also working at Shravanabelagola. 10 9. It is important to note that the reason for lending the money, PW1 says that he had availed the loan for his daughter’s treatment since she is suffering from ill-health and she did not obtain any document except the Cheque and PW1 also categorically admits that she is not having document to show that she was having that much of amount but she gave the amount by cash and though she claims that she is working in Sapthagiri Merchant Finance as working partner and getting salary of Rs.25,000/- per month but not produced any document in this regard. It is also admitted that accused is working at Shravanabelagola, Hassan district and residing there and only once, he came to receive money and he never came to her house except that time but she claims that he demanded money over phone and there was no any impediment for making the payment through Cheque and specific question was put to the witness that the said disputed Cheque was given to her brother and he only wrote the amount as Rs.20,000/- in the said Cheque and the same was denied. It is also her evidence that he met her and gave the undertaking letter in terms of Ex.P10 and 11 specific question was also put that in the said document, amount is mentioned as Rs.10,000/- and the same was also altered making as Rs.1,00,000/- and said suggestion was denied. Having considered this cross-examination, it is clear that the defence is that he only gave the Cheque for Rs.20,000/- and undertaking letter also given for Rs.10,000/- and not for Rs.1,00,000/-. No doubt, the complainant examined one more witness as PW2 who is the brother of the complainant and he says that he has not lent any money and he was also subjected to the cross-examination and same defence was taken in the cross-examination. 10. It is also important to note that accused is also examined as DW1 and he also reiterated the same in terms of his defence taken in the cross-examination and suggestion was made that not taken the amount of Rs.20,000/- and taken Rs.1,20,000/- and also he has undertaken to pay the amount of Rs.1,00,000/- and the said suggestion was denied. Accused also examined one witness as DW2 and he says that accused does not know about the complainant but he knows the Mahadevappa 12 and accused had taken loan of Rs.20,000/- from Mahadevappa and when the said Mahadevappa insisted for security, he gave the Cheque for an amount of Rs.20,000/- and he also identified the Cheque and also he gave an undertaking after three years stating that he would pay the remaining amount of Rs.10,000/-. This witness was also cross-examined and in the cross- examination, he admits that he is having acquaintance with the accused from last ten years and he also admits that Mahadevappa working in PWD and he cannot tell the date of availing of loan and on the date of demand, the amount was paid and gave the Cheque on the very same day and an amount of Rs.10,000/- was paid but he cannot tell specific date but it was after three years. At the time of advancing the loan and issuance of Cheque, he himself, Mahadevappa and accused were there and no other persons were there. 11. Having considered the evidence on record, it is clear that both the accused and the brother of the complainant were working at Shravanabelagola and the same is admitted by PW1. The specific case of the accused also that he availed the loan 13 from Mahadevappa. No doubt, that Mahadevappa also examined before the Court but he denies loan transaction. But the fact is that the brother of the complainant working in PWD at Shravanabelagola and accused also working at Shravanabelagola and also answer is elicited that she has not obtained any document for having making the payment by cash except collection of Cheque by the accused and the accused deposed that he gave the Cheque only for Rs.20,000/- and not borrowed an amount of Rs.1,20,000/-. 12. Having perused the document at Ex.P1, it is very clear that the amount mentioned as Rs.20,000/- is in one ink and insertion of “1” before “20,000/-“ is in different ink and hence, clear insertion could be seen comparing the said document. It is also important to note that the Court can invoke Section 73 of the Evidence Act to compare the document with regard to writing available on the document. It is also important to note that Ex.P10 is dated 25.10.2011 and the said document is also obtained when warrant was issued on account of filing of case by Prema and he came to know about the same and spoke 14 to the complainant and undertaken to repay the amount and gave an undertaking letter and he also admits the signature available in Ex.P10. But the case of the accused case is that he gave an undertaking for an amount of Rs.10,000/-, since he had made the payment of Rs.10,000/- out of Rs.20,000/-. On perusal of the amount mentioned in this document, it clearly seen that Rs.10,000/- was made as Rs.1,00,000/- by adding another “0” [zero]. When the same was meticulously examined, it is clear that all the three zeros is in same size and another “0” [zero] is in different size in an amount of Rs.1,00,000/-. Apart from that “comma” was not put immediately after “1” and same was put after “10” and it is clear that “comma” was put after Rs.10,000/- and added “0” [zero]. Thus, these documents would have been meticulously examined by both the Courts and ought to have compared the same as held under Section 73 of the Evidence Act and the Court can compare the same. The defence of accused also that Ex.P1 has been altered and alteration of Cheque appears in the document at Ex.P1 by insertimg of “1” prior to “20,000” and may be there was a gap and space to add “1” and the First Appellate Court committed an 15 error holding that there was space prior to “20,000”. But the fact is that “1” has been added and same is clearly visible to the bear eyes and the said “1” is also in different size and in different ink and though the same is also blue colour, but he had signed with black colour ink pen but very mentioning of the amount in the Cheque could be seen by bear eyes that “1” has been added before “20,000”. 13. It is also important to note that the fact that both the Mahadevappa who is the brother of the complainant and accused were working at Shravanabelagola is also not in dispute and the complainant is residing in Bengaluru and accused is residing at Shravanabelagola, Hassan is also admitted. But now, the doubt arise is that how both i.e., the complainant and accused were have acquaintance with each other and nothing is stated in this regard in the evidence of PW1. It has to be noted that Ex.P10 is dated 25.10.2011. It is the specific case of the accused that he had repaid the amount of Rs.10,000/- and this document was given in the year 2011. It is also important to note that loan transaction was taken place in the year 2007 but 16 this undertaking was given after the period of three years and same also not taken note of by both the Courts. Even if said undertaking was given with regard to the availing of amount, though Cheque was dated 11.01.2008, the undertaking would have been given before January 2011 but the same is dated 25.10.2011 that too after filing of the criminal case and also submission is very specific that warrant was issued against the accused and at that time, this undertaking was given. The very contention that he had paid the amount of Rs.10,000/- and agreed to pay remaining amount of Rs.10,000/- is probable since he had mentioned the amount in the document as Rs.10,000/- and same has been made as Rs.1,00,000/- by adding “0” [zero] as contended by the accused. Apart from that even Cheque is also manipulated as Rs.1,20,000/- as against Rs.20,000/- and the same was not examined by both the Courts and only invoked the presumption under Section 139 of NI Act. It is also settled law that presumption under Section 139 is rebuttal presumption and accused also rebutted the presumption by leading plausible evidence before the Trial Court that he had acquaintance with only Mahadevappa since both of them were 17 working at Shravanabelagola and same is also elicited from the mouth of PW1. Though examined said Mahadevappa, he also did not dispute the said fact. 14. It is the specific case that he had only received an amount of Rs.20,000/- and not Rs.1,20,000/- and undertaking is also given for Rs.10,000/- not for Rs.1,00,000/- and both the Courts fails to take note of the fact that undertaking was given when the warrant was issued and took four years time to make the balance amount of Rs.10,000/-. Hence, both Courts committed an error in not considering these documents and compare the same and having compared the same invoking Section 73 of the Evidence Act, very case of the accused is probable than the case of the complainant. I have already pointed out that the presumption is rebuttal presumption and same is rebutted relying upon the document at Ex.P1 and P10 and same is substantiated contention of the accused. When such being the case, it is a clear case of manipulation of document at Ex.P1 so also Ex.P10 and same has been lost sight by the Trial Court as well as the First Appellate Court. Both 18 Courts also fails to take note of the fact that if really made the payment of Rs.1,20,000/-, what made to take undertaking only for Rs.1,00,000/- and it would have been Rs.1,20,000/- if really it is true. 15. Having considered the reasoning given by both the Courts, it discloses that not only lost the sight on Ex.P1 and P10 but fails to consider the admission given by PW1 that the Mahadevappa who is her brother and accused were working at Shravanabelagola and she is residing at Bengaluru but accused residing at Shravanabelagola where he works and also says that she met the accused once only to make the payment and not at any point of time. When the complainant not met the accused at any point of time except lending of money that too advancing the amount Rs.1,20,000/- without any earlier acquaintance also creates the doubt and also categorically admitted that not having any document to show that she was having cash of Rs.1,20,000/- at the time of lending the money and no other document is obtained from the accused except Cheque and case of the accused that he had availed the money from 19 Mahadevappa not from the complainant is very probable since both of them were working at same place and have acquaintance with each other. Hence, it is clear case that the said Mahadevappa got filed the complaint through PW1 who is the resident of Bengaluru not the resident of Hassan and these preponderance of probabilities have not been considered by the Trial Court while accepting the case of the complainant and committed an error in rejecting the defence of the accused when accused case is more probable than the complainant and the same has not been considered by both the Courts and hence, it is a clear case of perversity in the finding of both the Courts when no legal evidence available on record. When the evidence and finding is not legal, the Court can exercise the revisional jurisdiction if order suffers from its legality and correctness. Hence, this case is a fit case to exercise the revisional jurisdiction to reverse the concurrent finding of both the Courts. Hence, I answer the above point as affirmative. 20 Point No.2: 16. In view of the discussions made above, I pass the following: ORDER The revision petition is allowed. The impugned judgment of conviction and sentence dated 14.01.2015 passed in C.C.No.11968/2008 by the Trial Court and the judgment dated 18.08.2015 passed in Crl.A.No.214/2015 by the First Appellate Court are hereby set aside. Consequently, the petitioner/accused is acquitted for the offence punishable under Section 138 of NI Act. Sd/- (H.P. SANDESH) JUDGE SN