IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF AUGUST, 2018 BEFORE THE HON’BLE MRS.JUSTICE S.SUJATHA CRL.R.P.No.143/2011 C/W CRL.R.P.Nos.342, 343, 344, 345 & 346/2011 IN CRL.R.P. No.143/2011:
BETWEEN :
PURANDARA SHETTY S/O B.NARAYANA SHETTY AGED ABOUT 48 YEARS R/AT AMBAGILU, UDUPI TALUK D.K. DISTRICT. …PETITIONER [BY SRI H.J.POOJARY., ADV.] AND :
SMT JANAKI POOJARTHI W/O LATE RAGHU POOJARY MAJOR, R/AT “SWASTHIK”, N.H. 17, NITOOR, AMBAGILU UDUPI TALUK AND DISTRICT. …RESPONDENT [BY SRI K.PRASANNA SHETTY, ADV.] THIS PETITION IS FILED U/S.397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE ORDER DATED 06.11.2017 MADE IN C.C.NOS.7895/2003, 7896/2003, 7897/2003, 7898/2003, 182/2005 AND 1039/2005 PASSED BY THE III ADDL. C.J., [JR. DN.] & JMFC, UDUPI AND ORDER DATED 21.10.2010 PASSED BY THE P.O., FTC, UDUPI IN CRL.A.NO.174/2007.
IN CRL.R.P.No.342/2011:
BETWEEN :
PURANDARA SHETTY S/O B.NARAYANA SHETTY AGED ABOUT 48 YEARS R/AT AMBAGILU, UDUPI TALUK D.K. DISTRICT. …PETITIONER [BY SRI H.J.POOJARY., ADV.] AND :
SMT JANAKI POOJARTHI W/O LATE RAGHU POOJARY MAJOR, R/AT “SWASTHIK”, N.H. 17, NITOOR, AMBAGILU UDUPI TALUK AND DISTRICT. …RESPONDENT [BY SRI K.PRASANNA SHETTY, ADV.] THIS PETITION IS FILED U/S.397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE ORDER DATED 06.11.2017 PASSED BY THE III ADDL. C.J., [JR. DN.] & JMFC, UDUPI IN C.C.NO.7898/2003 AND ORDER DATED 21.10.2010 PASSED BY THE P.O., FTC, UDUPI IN CRL.A.NO.174/2007.
IN CRL.R.P.No.343/2011:
BETWEEN :
PURANDARA SHETTY S/O B.NARAYANA SHETTY AGED ABOUT 48 YEARS R/AT AMBAGILU, UDUPI TALUK D.K. DISTRICT. …PETITIONER [BY SRI H.J.POOJARY., ADV.] AND :
SMT JANAKI POOJARTHI W/O LATE RAGHU POOJARY MAJOR, R/AT “SWASTHIK”, N.H. 17, NITOOR, AMBAGILU UDUPI TALUK AND DISTRICT. …RESPONDENT [BY SRI K.PRASANNA SHETTY, ADV.] THIS PETITION IS FILED U/S.397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE ORDER DATED 06.11.2017 PASSED BY THE III ADDL. C.J., [JR. DN.] & JMFC, UDUPI IN C.C.NO.7896/2003 AND ORDER DATED 21.10.2010 PASSED BY THE P.O., FTC, UDUPI IN CRL.A.NO.174/2007.
IN CRL.R.P.No.344/2011:
BETWEEN :
PURANDARA SHETTY S/O B.NARAYANA SHETTY AGED ABOUT 48 YEARS R/AT AMBAGILU, UDUPI TALUK D.K. DISTRICT. …PETITIONER [BY SRI H.J.POOJARY., ADV.] AND :
SMT JANAKI POOJARTHI W/O LATE RAGHU POOJARY MAJOR, R/AT “SWASTHIK”, N.H. 17, NITOOR, AMBAGILU UDUPI TALUK AND DISTRICT. …RESPONDENT [BY SRI K.PRASANNA SHETTY, ADV.] THIS PETITION IS FILED U/S.397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE ORDER DATED 06.11.2017 PASSED BY THE III ADDL. C.J., [JR. DN.] & JMFC, UDUPI IN C.C.NO.7897/2003 AND ORDER DATED 21.10.2010 PASSED BY THE P.O., FTC, UDUPI IN CRL.A.NO.174/2007.
IN CRL.R.P.No.345/2011:
BETWEEN :
PURANDARA SHETTY S/O B.NARAYANA SHETTY AGED ABOUT 48 YEARS R/AT AMBAGILU, UDUPI TALUK D.K. DISTRICT. …PETITIONER [BY SRI H.J.POOJARY., ADV.] AND :
SMT JANAKI POOJARTHI W/O LATE RAGHU POOJARY MAJOR, R/AT “SWASTHIK”, N.H. 17, NITOOR, AMBAGILU UDUPI TALUK AND DISTRICT. …RESPONDENT [BY SRI K.PRASANNA SHETTY, ADV.] THIS PETITION IS FILED U/S.397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE ORDER DATED 06.11.2017 PASSED BY THE III ADDL. C.J., [JR. DN.] & JMFC, UDUPI IN C.C.NO.1039/2005 AND ORDER DATED 21.10.2010 PASSED BY THE P.O., FTC, UDUPI IN CRL.A.NO.174/2007.
IN CRL.R.P.No.346/2011:
BETWEEN :
PURANDARA SHETTY S/O B.NARAYANA SHETTY AGED ABOUT 48 YEARS R/AT AMBAGILU, UDUPI TALUK D.K. DISTRICT. …PETITIONER [BY SRI H.J.POOJARY., ADV.] AND :
SMT JANAKI POOJARTHI W/O LATE RAGHU POOJARY MAJOR, R/AT “SWASTHIK”, N.H. 17, NITOOR, AMBAGILU UDUPI TALUK AND DISTRICT. …RESPONDENT [BY SRI K.PRASANNA SHETTY, ADV.] THIS PETITION IS FILED U/S.397 R/W 401 CR.P.C, PRAYING TO SET ASIDE THE ORDER DATED 06.11.2017 PASSED BY THE III ADDL. C.J., [JR. DN.] & JMFC, UDUPI IN C.C.NO.182/2005 AND ORDER DATED 21.10.2010 PASSED BY THE P.O., FTC, UDUPI IN CRL.A.NO.174/2007.
THESE PETITIONS COMING ON FOR ORDERS, THIS DAY THE COURT MADE THE FOLLOWING:
O R D E R These criminal revision petitions are filed by the accused challenging the Judgment and order passed by the Fast Track Judge, Udupi Disgtrict at Udupi in Crl.A. No.174/2007 dated 21.10.2010 whereby the Judgment of conviction and sentence passed by the learned Magistrate, Udupi in C.C.Nos.7895/2003, 7896/2003, 7897/2003, 7898/2003, 182/2005 and 1039/2005 has been confirmed.
2. Facts in brief are that, one Raghu Poojary- original complainant, husband of the respondent herein, filed a private complaint against the petitioner for the alleged offence under section 138 of the Negotiable Instruments Act, 1881 (‘Act’ for short). During the pendency of the proceedings before the trial court, the said original complainant – Raghu Poojay died and his wife, the respondent herein, came on record and proceeded with the case. The gist of the complaint is that the petitioner herein had taken hand loan of Rs.80,000/- on 10.7.1999 from the complainant and agreed to repay the same within three months; on repeated demands, the petitioner issued 7 cheques for a total sum of Rs.82,775/- drawn on Syndicate Bank, Kunjubettu Branch, Udupi on different dates. The complainant presented the cheques for encashment and the same were returned with an endorsement “insufficient funds”. The petitioner having failed to repay the amount due despite the service of legal notice issued by the original complainant under Section 138 of the Act, a private complaint was filed against the petitioner.
On such complaint being filed under Section 200 of Cr.P.C. cognizance of offence was taken and the case was registered against the petitioner herein, by the learned Magistrate. The defence of the petitioner/ accused was that he was running a financial institution in the name and style of “M/s Ambagilu Finance Corporation at Ambagilu, Udupi taluk” which was closed on 31.3.2002. Original complainant Raghu Poojary had deposited a sum of Rs.20,000/- on 24.1.2000 and Rs.40,000/- on 28.2.2000 for a period of five years, both with interest at 19.5% p.a. On the request made by the complainant to prematurely return the fixed deposit of Rs.60,000/- with interest, seven cheques were issued totally amounting to Rs.82,775/- as a security. Subsequently on 26.1.2002, the accused had returned the total amount of Rs.82,775/- to the original complainant and the receipt of the said cash transfer was placed before the court, marked as Ex.D1.
3. PW-1, wife of the original complainant/ respondent herein was examined on behalf of the complainant and accused was examined as DW-1. On appreciation of evidence, trial court convicted the accused under Section 138 of the Act passing sentence as under:
“In CC No.7895/2003, the appellant- accused was sentenced to pay a fine of Rs.13,000/- and in default, to undergo simple imprisonment for a period of 8 months. Out of the fine amount Rs.12,000/- shall be paid to the respondent/ complainant as compensation and the remaining sum of Rs.1,000/- shall go to the State. In CC No.7896/2003, the appellant/accused was sentenced to pay a fine of Rs.11,000/- and in default to undergo simple imprisonment for a period of 8 months. Out of the fine amount, Rs.10,000/- shall be paid to the respondent/ complainant as compensation and the remaining sum of Rs.1,000/- shall go to the State. In C.C. No.7897/2003, the appellant/accused was sentenced to pay a fine of Rs.27,000/- and in default to undego simple imprisonment for a period of 8 moths. Out of the fine amount, Rs.25,000/- shall be paid to the respondent /complainant as compensation and the respondent/complainant as compensation and the remaining sum of Rs.2,000/- shall go to the State. In CC No.7898/2003 the appellant/accused was sentenced to pay a fine of Rs.13,000/- and in default to undergo simple imprisonment for a period of 8 months. Out of the fine amount, Rs.12,000/- shall be paid to the respondent/complainant as compensation and the remaining sum of Rs.1,000/- shall go to the State. In C.C.No.182/2005, the appellant/accused was sentenced to pay a fine of Rs.13,000/- and in default, to undergo simple imprisonment for a period of 8 months. Out of the fine amount, Rs.12,000/- shall be paid to the respondent/complainant as compensation and the remaining sum of Rs.1,000/- shall go to the State. In CC No.1039/2005, the appellant accused was sentenced to pay a fine of Rs.13,000/- and in default, to undergo simple imprisonment for a period of 8 months. Out of the fine amount Rs.12,000/- shall be paid to the respondent/complainant as compensation and the remaining sum of Rs.1,000/- shall go to the State.”
4. Being aggrieved by the same, accused preferred an appeal before the learned Sessions Judge in Crl.A.No.174/2007 which came to be dismissed confirming the order of the trial court. Hence, these revision petitions.
5. Learned counsel for the petitioner placing reliance on Ex.D1 would submit that Rs.82,775/- was paid in full to the original complainant on 26.1.2002 and his signature was also obtained on the said receipt which was marked as Ex.D1(a). The original complainant having demanded the deposited amount of Rs.60,000/- prematurely with interest, 7 cheques were given to the original complainant as security on different dates. Subsequently, the said amount of Rs.82,775/- being paid to the original complainant, no cause of action arose for the original complainant to present the cheques for encashment. PW-1, wife of the original complainant in her evidence feigned ignorance about the signature of the original complainant in Ex.D1 as well as other documents including vakalath filed before the court wherein, the original complainant had subscribed his signature. It was total denial of transaction of fixed deposits made by the complainant with the accused-Financier and the 7 cheques for a sum of Rs.82,775/- given to the original complainant as security. The courts below failed to appreciate the total denial of the complainant to these transactions in a right perspective. It is obvious that the PW-1 may be oblivious of the business transaction made by her husband during his lifetime but however she has failed to prove the loan transaction made by the accused with the complainant. The story created by the PW-1 wife of the original complainant inasmuch as the issuance of the 7 cheques in question to discharge the legal debt was believed by the courts below ignoring the evidence of DW-1 who established his case by marking Exs.D2 and D3, the fixed deposit receipts for Rs.20,000/- and Rs.40,000/-. Non-appreciation of the evidence in the satisfactory manner by the courts below has resulted in miscarriage of justice which calls for interference by this court.
6. There is no representation on behalf of the respondent.
7. Having heard the learned counsel for the petitioner and perusing the original records, it is clear that the entire case of the petitioner/accused revolves round the Ex.D1, the receipt said to have been signed by the original complainant for having received a sum Rs.82,775/- subject to return of 7 cheques (cheque Nos.339284-87 and 339290 to 92. The signature of the original complainant, marked as Ex.D1(a) is disputed. In such circumstances, burden lies on the accused to prove the signature of the complainant as genuine. No efforts are made by the accused to refer the disputed signature for handwriting expert to ascertain the genuineness of the same. Section 73 of the Evidence Act provides for comparison of signature, writing or seal admitted or proved. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The court is entitled to make comparison of the disputed alleged signature for just conclusion expert opinion can be obtained. Both the courts below have come to the conclusion that Ex.D1 is not a receipt but a document of cash transfer certificate. The said receipt, EX.D-1 do not inspire any confidence in the mind of the court to accept the case of the accused, in the absence of the receipt of acknowledgement obtained and produced by the accused. The accused has failed to prove the alleged transaction of fixed deposits made by the complainant with the accused and further issuance of these cheques in question as well as the payment of Rs.82,775/- to the original complainant. Both the courts below have extensively considered the material evidence on record and arrived at a concurrent finding which do not call for any interference as no perversity or irregularity is found in the impugned judgments. Hence, Revision Petitions being bereft of merit, are liable to be dismissed. Accordingly, petitions are dismissed.
8. Accused shall pay the fine amount passed by the trial court within a period of three months and in default, the imprisonment clause of the order of the trial court shall apply.
Sd/- JUDGE ln.