- 1 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 1602 OF 2016 BETWEEN: 1. SRI. T. JAGADEESH S/O THIMMANNA AGED ABOUT 50 YEARS TEACHER R/O ASANDI VILLAGE AND POST HIRENALLUR HOBLI KADURU TALLUK CHIKKAMAGALURU DISTRICT PIN -577548 …PETITIONER (BY SRI. K.S.GANESHA, ADVOCATE [THROUGH V.C.]) AND: 1. SRI. K.R.SHIVASHANKARAPPA S/O REVANNA AGED ABOUT 51 YEARS ADVOCATE R/O RAILWAY STATION ROAD KADURU CHIKMAGALURU DISTRICT PIN-577548 …RESPONDENT (BY SRI. N.V.MANJUNATH, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 20.10.2016 PASSED BY THE II ADDL. SESSIONS JUDGE, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 CHIKKAMAGALURU IN CRL.A.NO.364/2013 AND ALSO SET ASIDE THE JUDGMENT DATED 11.09.2013 PASSED BY THE II ADDL. CIVIL JUDGE AND JMFC, KADUR IN C.C.NO.1076/2005 IN CONVICTING THE PETITIONER AND DIRECT THAT THE PETITIONER BE ACQUITTED. THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard learned counsel for the petitioner and learned counsel for the respondent. 2. This revision petition is filed against the concurrent finding of the Trial Court convicting the petitioner for the offence punishable under Section 138 of N.I. Act and confirmation the same by First Appellate Court in the appeal. 3. The factual matrix of the case of the complainant before the Trial Court is that during the month of March, 2005, the accused approached the complainant for financial assistance for the purpose of his family necessity, borrowed an amount of Rs.90,000/-. Having received the said amount, he gave post-dated Cheque dated 03.05.2005 for a sum of Rs.90,000/-. On presentation of the said Cheque, the same was dishonoured with an endorsement ‘funds insufficient’. - 3 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 Immediately, he gave notice and no reply was given and complaint was filed and the Trial Court taken cognizance and secured the accused and the accused did not plead guilty and claimed for trial. 4. The complainant examined himself as P.W.1 and got marked the documents as Exs.P1 to P9. The statement of accused under Section 313 Cr.P.C. was recorded and accused examined himself as D.W.1 and three other witnesses as D.Ws.2 to 4 and got marked the document as Ex.D1. The Handwriting Expert was examined as C.W.1 and got marked the documents as Exs.C1 to C9. 5. The Trial Court having considered the evidence of complainant and the accused, not admitted the defence of accused, since the accused relied upon the document of Ex.D1 and the said document was denied by the complainant. But, Handwriting Expert given the opinion that signature belongs to the complainant. But, the averments made in the said document is that handwriting at Ex.D1 not belongs to the complainant and not accepted the case of the defence, since the same is in different handwriting and convicted the accused. - 4 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 6. Being aggrieved by the said order of the Trial Court, an appeal is filed before the First Appellate Court in Crl.A.No.364/2013. The First Appellate Court, having considered the grounds urged in the appeal and on re- appreciation of both oral and documentary evidence placed on record, answered points for consideration as ‘negative’ and the First Appellate Court also regarding payment is concerned discussed in paragraph No.14 that in terms of Ex.D1, the person who wrote the blue endorsed writings marked ‘S1 to S8’ did not write the blue enclosed writings marked ‘Q2’. Having considered the same, the First Appellate Court comes to the conclusion that the finding cannot be accepted in respect of Ex.D1 is concerned and complainant also proved the case by placing document of Cheque and no rebuttal evidence is placed, except relying upon the document of Ex.D1 and not accepted the document of Ex.D1 and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding, the present revision petition is filed before this Court. 7. Learned counsel appearing for the petitioner would vehemently contend that when the document of Ex.D1 is produced and when there is an endorsement for having paid an - 5 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 amount of Rs.90,000/- i.e., the subject matter of the Cheque amount, both the Courts committed an error in not accepting the document of Ex.D1, when Handwriting Expert gave the opinion that signature belongs to the complainant. Learned counsel would vehemently contend that both the Courts committed an error in coming to the conclusion that handwriting not belongs to the complainant and disbelieved the document of Ex.D1 and the same is erroneous and both the Courts committed an error. The counsel would vehemently contend that specific defence of the petitioner before the Trial Court is that he borrowed an amount of Rs.37,000/- during 1997 from the complainant and issued Ex.P1 and he repaid the entire amount in 2002-2003 with interest of Rs.90,000/- to the complainant. For having received the said amount, the complainant has issued receipt as per Ex.D1 and Ex.D1 is clear that entire amount was paid and the same has not been accepted by the Trial Court. Hence, this Court has to allow the revision. Learned counsel also would vehemently contend that once the document of Ex.D1 is sent to Handwriting Expert and signature is of the complainant, the complainant has to explain the same and further prove what made him to execute the - 6 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 document of Ex.D1, if no such amount is received and the same has not been done and this Court has to set aside the order of the Trial Court and the First Appellate Court. 8. Per contra, learned counsel for the respondent would vehemently contend that the very document of Ex.D1 is a created one and taking advantage of signature available on the blank paper, made use of the same to show that entire amount has been cleared. Learned counsel would vehemently contend that when notice was issued to the accused and served, no reply was given and instead, he contend that, he made the payment within three days from the date of receipt of said notice. The counsel would further contend that this Court has to look into the writings available in Ex.D1, which is a space adjustment in the blank paper used for creating the document. Hence, both the Courts rightly not accepted the document of Ex.D1, particularly taking note of handwriting available in Ex.D1 and it does not require any interference. 9. Having heard learned counsel for the petitioner and learned counsel for the respondent and also considering the document, particularly Ex.D1 and also the defence of the - 7 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 revision petitioner that he made entire payment, the points that would arise for consideration of this Court are: (i) Whether the Trial Court committed an error in convicting the petitioner for the offence punishable under Section 138 of N.I. Act and confirmation of same by the First Appellate Court and whether it requires interference of this Court by exercising revisional jurisdiction? (ii) What order? Point No.(i) 10. Having heard respective counsel and also on perusal of the material on record, the very case of the complainant before the Trial Court is that the accused availed loan of Rs.90,000/- to meet his family necessity and also issued post-dated Cheque and when the same was presented, it was dishonoured. It is also not in dispute, immediately after dishonour, notice was issued and the same was served and he did not give any reply to the notice. But, took the specific defence in the cross-examination that he had cleared entire loan amount which was taken in the year 1997 with interest of Rs.90,000/-. Having considered the defence, contents of the - 8 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 complaint and also the evidence of P.W.1, the Trial Court taken note of the same in paragraph No.13 with regard to endorsement of taking Rs.5,000/- each through Siddamma and Kallesha and also contention of Rs.80,000/- was paid on 29.08.2003 in terms of the endorsement, in total received an amount of Rs.90,000/-. The Trial Court observed that according to D.W.4, on 29.08.2003, the accused and himself had been to the complainant’s house at Kadur, where the accused has paid a sum of Rs.80,000/- to the complainant in his presence. Thereafter for having received Rs.90,000/-, the complainant has issued receipt as per Ex.D1, wherein he has stated that: “CzÉà ¢ªÀ¸À F »AzÉ PÉÆlÖ vÀÁ gÀÆ.5,000/- UÀ¼ÀÄ ªÀÄvÀÄÛ ¢£ÁAPÀ 29-08-2003 gÀAzÀÄ PÉÆlÖ gÀÆ.80,000/- UÀ¼À£ÀÆß ¸ÉÃj¹ MlÄÖ gÀÆ.90,000/- PÉÆnÖgÀÄvÀÛzÉ JAzÀÄ MAzÀÄ aÃn §gÉzÀÄPÉÆnÖgÀÄvÁÛgÉ. ¸ÀzÀj aÃnAiÀÄ£ÀÄß ¦ügÁåzÀÄzÁgÀgÀÄ £À£Àß ¸ÀªÀÄPÀëªÀÄzÀ°è §gÉzÀÄPÉÆnÖgÀÄvÁÛgÉ. But the DW.1 in his cross- examination he has stated that £ÉÆÃnøï vÀ®Ä¦zÀ 3 ¢£ÀUÀ¼À £ÀAvÀgÀ £Á£ÀÄ ¦ügÁå¢zÁgÀgÀ£ÀÄß CªÀgÀ ªÀÄ£ÉAiÀÄ°è ¨sÉÃnAiÀiÁV C°è 90 ¸Á«gÀ gÀÆ. ªÀ£ÀÄß PÉÆlÄÖ ¤r-1 gÀ²Ã¢AiÀÄ£ÀÄß §gɹPÉÆArgÀÄvÉÛãɔ. 11. The Trial Court in detail discussed the same with regard to the evidence of D.W.1 as well as D.W.4 and apart from that, D.W.4 says that complainant himself wrote the - 9 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 same. But, when the Handwriting Expert has given the opinion that the said handwriting not belongs to the complainant, both the Courts not accepted the document of Ex.D1. The Trial Court discussed in paragraph No.14 with regard to the payment is concerned to the tune of Rs.90,000/- in total. The other defence that Rs.37,000/- is borrowed in 1997 and payment was made in 2002-2003 was also not accepted. 12. First of all, when the notice was issued, no reply was given by the accused. If really, he has made the payment, he would have given the reply immediately and Trial Court also taken note of the judgment of the Apex Court in RANGAPPA VS. MOHAN reported in 2010 SC 1898, wherein it is clear that when notice was issued, no such reply was given and the Court has taken note of the probable defence of the accused. Having perused the detail order passed by the Trial Court, the First Appellate Court while re-appreciating the material on record taken note of the same and discussed in paragraph No.14 and not accepted the case of the accused. 13. The main contention of the learned counsel for the petitioner is that when endorsement was available for having - 10 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 made the payment and acknowledged the same, merely because signature belongs to the complainant available in Ex.D1, it cannot be considered that entire amount has been paid. Having perused the said document, though it is stated that complainant himself had gave such endorsement, the same was sent to the Handwriting Expert and the Handwriting Expert gave the opinion that the said handwriting is not of the complainant and the version of the D.W.4 is taken note, wherein he says that complainant wrote the same but, Handwriting Expert opinion is clear as to that is not the handwriting of the complainant. Hence, both the Courts accepted the case and the same is not the probable defence. If really the amount was paid and gave such endorsement in the handwriting of complainant, if Handwriting Expert opinion is that the said handwriting is of complainant, then there would have been force in the contention of the learned counsel for the accused, but the opinion is different. Therefore, both the Courts not accepted the case of the complainant. 14. The scope of this revision is very limited and this Court cannot re-appreciate the material on record. However, this Court can consider the same, if any perversity in the - 11 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 finding of the Trial Court and the First Appellate Court in rejecting the document of Ex.D1 for having made the payment and based on the evidence on record, there is no perversity in the finding of the Trial Court and the First Appellate Court. It is also settled law that, while exercising the revisional jurisdiction, if finding is not legal and suffers from illegality, then the Court can exercise revisional jurisdiction. I dot not find any such circumstance warranting in the case on hand to exercise the revisional jurisdiction. Though Ex.D1 is relied upon by learned counsel for the accused, the same has been elaborately discussed in paragraph No.13 and while not accepting the case of the defence, reasoning is given in paragraph Nos.13, 14 and 15 and well reasoned order has been passed considering the judgment of the Apex Court in RANGAPPA’s case, when notice was given, no reply was given and defence was set up. In the case on hand, inspite of notice being served, the accused has not given any reply. Hence, the very contention of learned counsel for the petitioner cannot be accepted. Therefore, I do not find any ground to interfere with the findings of both the Courts. However, the transaction is of the year 2005 and case was disposed of in 2013, almost after 8 years, since C.C. of the - 12 - NC: 2025:KHC:6497 CRL.RP No. 1602 of 2016 year 2005 and disposed of in the month of September, 2013. Now, almost 20 years have elapsed. Having taken note of said fact into consideration, instead of making double the fine amount, it is appropriate to reduce the same and instead of ordering to pay fine amount of Rs.1,80,000/-, the same is reduced to Rs.1,50,000/- considering the long period of pendency of the matter. 15. In view of the discussion made above, I pass the following: ORDER (i) The criminal revision petition is allowed in part. (ii) The judgment of the Trial Court is modified reducing the fine amount from Rs.1,80,000/- to Rs.1,50,000/-. (iii) The default sentence on failure to pay the fine amount is upheld. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 61