1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 3RD DAY OF AUGUST, 2012 BEFORE THE HON'BLE MR.JUSTICE B.V.PINTO CRIMINAL REVISION PETITION NO.1378/2010 BETWEEN SRI M ANAND S/O MUNISWAMY MAJOR NO.52, 3RD CROSS SHAMANNAGOWDA LAYOUT BANGALORE PETITIONER (BY Sri K NARAYANA & Sri B A SOMANNA, ADVs.,) AND SMT LEELAVATHY W/O LATE SRINIVAS MAJOR NEW NO.6, OLD NO.23 APPAIAH GARDEN 1st CROSS, SARASWATHYPURAM HALASURU, BANGALORE RESPONDENT (BY Sri.[ENTITY], ADV., FOR M/s. LAW PARK ASSTS) THIS CRL.RP FILED U/S.397 & 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE ORDER DT.14.9.10 PASSED BY THE ADDL. S.J. AND P.O. FTC-III, MAYO HALL UNIT, BANGALORE IN [CASE NUMBER] CONFIRMING THE ORDER OF CONVICTION DT.15.7.09 PASSED BY THE XVII ASCJ AND XXV ACMM., MAYO HALL UNIT, BANGALORE IN [CASE NUMBER] FOR THE OFFENCE P/U/[SECTION] OF [ACT]. AND ALLOW THIS CRL.R.P. AND DISMISS THE COMPLAINT FILED BY THE RESPONDENT. 2 THIS CRIMINAL REVISION PETITION IS COMING ON FOR DICTATING ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER
This Revision Petition is filed challenging the Judgment dated 14.9.2010 passed by the Fast Track Court-III, P.O. & Addl. Sessions Judge, Mayo Hall Unit, Bangalore in Crl.A.No.25089/2009, dismissing the appeal filed by the accused against the order of conviction and sentence dated 15.7.2009 passed by the XVII Addl. Judge, Court of Small Causes and XXV Addl. CMM, Mayo Hall Unit, Bangalore in [CASE NUMBER], in which, the learned Magistrate has convicted the accused for an offence under [SECTION] of [ACT] and sentenced him to pay fine of `2,30,000/- and in default to undergo simple imprisonment for one month with a direction that out of the fine amount a sum of `2,25,000/- shall be payable to the Complainant towards compensation.
2. It is the case of the Complainant that on 29.4.2005, the accused had issued a cheque for `2,00,000/- bearing No.874646 drawn on Syndicate Bank, Halasur (Ulsoor) Branch, Bangalore to the Complainant and when the cheque was presented for payment, the same was dishonoured with an endorsement "Account Closed" and the accused did not have any sufficient amount with the bank to honour the cheque and the said cheque was issued for legally enforceable liability against the accused. The Complainant had filed the said case against the petitioner herein and one Sri [ENTITY].
3. In order to prove the case, the Complainant had examined herself as PW.1 and got marked Exs.P1 to P8. The defence of the accused was one of total denial and he got examined DWs.1 to 7 and produced documents as Exs.D1 & D2. However, learned Magistrate was pleased to convict accused No.1 for the offence under [SECTION] of [ACT] and sentenced him as aforesaid. Being aggrieved by the order of conviction, the petitioner herein filed an appeal before the Sessions Court and the Sessions Court while dismissing the appeal has confirmed the order of conviction passed by the learned Magistrate. Hence, this petition by the accused.
4. Heard Sri [ENTITY], learned Counsel for the petitioner and Sri [ENTITY], learned Counsel for the Respondent. Perused the materials.
5. Learned Counsel for the petitioner submits that the order of conviction passed by the learned Magistrate is erroneous. He has submitted that the Complainant/Respondent was carrying on a chit business and she was taking blank cheque from the members of the chit and to substantiates the same, the accused has examined DWs.1 to 7, who have also deposed before the Court that they have also issued blank cheques to the Complainant, who was running a chit business. He has further submitted that the accused has further produced a Judgment before the trial Court, which is a case filed by the Complainant against one [ENTITY], who is also examined as a defence witness-DW.2 and in the said case, the learned Magistrate has held that the Complainant has not proved the case against the petitioner/accused and in the said case, the accused has been acquitted. Hence, it is submitted by the learned Counsel for the petitioner that the this case is also similar to the case of [ENTITY] [[CASE NUMBER]]. Hence, he submits that this Revision Petition may be allowed and the orders of the Courts below may be set aside.
6. Sri [ENTITY], learned Counsel for the Respondent on the other hand submits that the Complainant has proved all the ingredients of the offence under [SECTION] of the [ACT] and that she has produced documents to show that the accused has infact issued the cheque-Ex.P1 and that all the formalities for an offence under [SECTION] of [ACT] are made out by the Complainant. He further submits that the Complainant has proved that there was a legally enforceable debt or liability in favour of the complainant as against the issuance of cheque. Therefore, he submits that the order of conviction is based on the evidence of record. It is further submitted by him that the witnesses examined by the accused have been cross-examined by the Complainant and it is elicited that though they were also the alleged members of the chit fund, they have spoken in favour of the accused only to support the case of the accused and that despite the evidence of this defence witnesses, the case of the Complainant is not taken away. Hence, he submits that the Revision Petition may be dismissed confirming the orders of the Courts below.
7. The Complainant in this case has filed a case under [SECTION] [ACT] on 18.7.2005 before the 14th Addl. CMM, Mayo Hall, Bangalore. The Magistrate having taken the said complaint as [CASE NUMBER], recorded the sworn statement of the Complainant and thereafter took cognizance of the offence, after which, the case in [CASE NUMBER] is registered and summons issued. Subsequently, the name of A2 is deleted as per the order of the Court dated 15.12.2008 on the basis of the memo filed by the complainant. It is submitted by the Complainant in the complaint that during the month of January 2005, the accused and another person approached the Complainant and told her that they were undergoing some financial crisis and therefore they required hand loan of `2,00,000/- and they undertook to repay the loan within three months. The Complainant paid the said amount to the accused and the accused handed over a cheque for `2,00,000/- bearing No.874646 drawn on Syndicate Bank, Halasur (Ulsoor) Branch, Bangalore. It is the version of the Complainant that the cheque was presented for payment to the aforesaid Bank and the Bank has dishonoured the said Cheque with an endorsement "Account Closed" on 6.6.2005. Thereafter, the Complainant filed a complaint before the Court. It is submitted by the Complainant in the complaint that the amount paid by her is recoverable as a legally enforceable liability as evidenced by the cheque. The Complainant has further stated that the notice was issued to the accused as per Ex.P2 and the said notice has been sent to the last known address of the accused. However, the said notice has been returned with an endorsement "Door Locked". Hence, return to owner. The Complainant has also sent a second notice, which also came to be returned. The Complainant has issued notice dated 19.6.2005 calling upon the accused to pay the cheque amount with 18% interest which is marked as Ex.P3; Receipts are marked as Exs.P4 & P5 and Reply notice as per Ex.P6.
8. The Complainant has been cross-examined by the accused and in the cross-examination it is elicited that the complainant is a housewife and her husband is not alive. Her husband was running his own Tempo, but not an Income tax assessee. It is further elicited in the cross-examination of PW.1 that the accused No.1 asked for `2,00,000/- loan in the month of January 2005. It is suggested to PW.1 that she is running a chit fund and there are 40 members in the chit fund and the accused was one among such 40 persons. However, PW.1 has denied the said suggestions. It is also further suggested to her that she has filed two criminal cases against other members of the chit fund and also one case against one [ENTITY]. PW.1 has admitted that she has filed a case against [ENTITY] and the said case ended in an order of acquittal. It is also admitted by her that [ENTITY], has been examined as DW.6 in this case. One doucment-Ex.D1 is confronted to this PW.1, in which, it is admitted by PW.1 that a sum of `10,000/- was received from the accused by her, but she has stated that said amount is arising out of different transaction earlier to the present transaction in the cheque. The said document is marked as Ex.D1. It is also suggested to her that no amount is payable to the Complainant since the accused had repaid the amount payable during entering into the chit business and while entering into the chit business, the accused had given a blank cheque as security. However, these suggestions have been denied by PW.1.
9. The accused is examined by the learned Magistrate under [SECTION] [ACT], in which the accused has denied the incriminating circumstances appearing against him. Thereafter, the accused has examined seven witnesses. DW.1 is the accused himself, who has also stated that the Complainant has falsely filed a criminal case against him and that no amount is due. It is further averred that the cheque was taken by the Complainant at the time of accused entering into the chit conducted by the complainant. However, these suggestions are denied by the complainant by cross-examining the accused. Further, in the cross-examination, DW.1 has admitted that Ex.P1-cheque and the signature in the said Ex.P1 belongs to him. He has also admitted that he has borrowed the certain sum from the complainant. It is his case in the cross- examination that he has given a blank signed cheque to the complainant. DW.2-[ENTITY] also stated as per the version of DW.1-[ENTITY], so also DW.3-[ENTITY], DW.4-[ENTITY], DW.5-[ENTITY], DW.6-[ENTITY] and DW.7-[ENTITY], all of whom have stated that they have given blank cheque to the complainant and that the complainant has mis-used the cheque.
10. The learned Magistrate after appreciating the above evidence on record has found that the complainant has proved the offence under [SECTION] of [ACT] after discussing the settled principles laid down in the decisions of this Court reported in:
i) [PRECEDENT] - Dr.B.V.SAMPATHKUMAR v.
Dr.K.G.V.LAKSHMI;
ii) [PRECEDENT] - [PRECEDENT]; &
iii) [PRECEDENT] - [PRECEDENT].
The learned Magistrate has also relied on the rulings of the Supreme Court.
11. I have gone through the Judgment of the trial Court as well as the Judgment of the Appellate Court passed in appeal. I find that the Judgment passed by the learned Magistrate is based on the evidence on record and there is no perversity or illegality in the order of conviction passed by the Sessions Judge. I have also gone through the Judgment of the Appellate Court passed in an appeal against the order of conviction. The learned Sessions Judge has discussed the evidence on record and has come to an independent conclusion that the order of conviction is based on record.
12. Though in a Revision Petition there is no requirement that the evidence should be appreciated, threadbare, I have gone through the entire evidence on record and on a careful appreciation of the entire evidence on record, I find that the order of conviction and the order passed by the Appellate Court in an appeal are based on the evidence on record and the judgments are neither perverse nor against settled principles of law.
13. In that view of the matter, I am of the opinion that this is not a case in which interference is called for in this Revision Petition and accordingly, this Revision Petition is dismissed.
JUDGE cp*