Smt. C a Vijayalakshmi Vs Smt. Lily Mary

SMT. C A VIJAYALAKSHMI AGED ABOUT 75 YEARS W/O SRI. ADINARAYANAIAH R/AT NO.4/5 BHAGYANAGAR LAYOUT SHANKAR NAGAR ROAD GOTTIGERE, BENGALURU SOUTH BENGALURU-560083

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…PETITIONER

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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(BY SRI. TUMBIGI PRABHUGOUDA BASAVANTARAYAGOUDA, ADVOCATE) AND:

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SMT. LILY MARY AGED ABOUT 56 YEARS W/O SRI JOSEPHRAJ R/AT NO.69, III FLOOR 17^TH ‘A’ CROSS, 4^TH BLOCK 4^TH STAGE BASAVESHWARANAGAR BENGALURU-560079

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…RESPONDENT

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(BY SRI. REENA R, ADVOCATE)

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NC: 2026:KHC:32917 CRL.RP No. 322 of 2024

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HC-KAR

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THIS CRL.RP IS FILED U/S. 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY HONBLE LXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-64) IN CRL.A.NO.814/2021 DATED 10.01.2024 AND ETC.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL ORDER

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This revision petition is filed against the judgment dated 08.10.2021 passed in C.C.No.29972/2017 and also against the judgment dated 10.01.2024 passed in Crl.A.No.814/2021.

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This matter is listed for admission. Heard the learned counsel appearing for the respective parties.

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The factual matrix of the case of the complainant before the Trial Court is that the accused had approached the complainant in the month of December, 2016 and requested for a loan of Rs.30,00,000/- agreeing to repay the same within four months. The complainant paid the amount

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3 - NC: 2026:KHC:32917 CRL.RP No. 322 of 2024

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HC-KAR

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of Rs.30,00,000/- by way of cash on 02.01.2017. The accused paid Rs.14,44,759/to the complainant on 01.04.2017 and for the balance amount of Rs.15,55,241/-, accused has issued subject matter of Cheque. When the said cheque was presented, the same was returned with an endorsement ‘funds insufficient’. Hence, the complainant issued a legal notice on the accused and the same was served on her on 21.10.2017 but, she did not give any reply to the notice. Hence, filed the complaint and cognizance was taken and accused was secured and she did not plead guilty.

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In order to prove the case of the complainant, she herself examined as PW1 and got marked the documents at Ex.P1 to P5 and accused did not lead any defence evidence except cross examination of PW1 in length. The Trial Court having considered both oral and documentary evidence placed on record, observed that the defence of the accused is that she is having enough source of income and there is no need to avail loan from the complainant. But on perusal of the cross-examination of PW1 it goes to show that there are no suggestions put to PW1 to show that how, the

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HC-KAR

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Cheque in dispute has come into the hands of the complainant and the defence of the accused is total denial of transaction. But accused has not made any efforts to rebut the presumption under Section 139 of N.I. Act. Hence, the Trial Court comes to the conclusion that the complainant is entitled for drawing up of presumption in her favour since the accused has made part payment of the loan amount and for the balance loan amount, has issued subject matter of Cheque which was dishonoured and convicted and sentenced the accused for the offence punishable under Section 138 of N.I. Act.

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Being aggrieved by the judgment of the Trial Court, an appeal was preferred before the Appellate Court. The Appellate Court also having reassessed the material on record in paragraph 27 comes to the conclusion that mandatory requirement of Section 138 and 142 of N.I. Act are complied with by the complainant and comes to the conclusion that the Trial Court has rightly considered both oral and documentary evidence placed on record while

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NC: 2026:KHC:32917 CRL.RP No. 322 of 2024

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HC-KAR

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convicting the accused and confirmed the judgment of the Trial Court.

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Being aggrieved by the concurrent finding of both the Courts, the present revision petition is filed before this Court.

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The learned counsel for the petitioner would vehemently contend that both the Courts have committed an error in convicting the accused. The counsel also contend that the complainant was not having a money of Rs.30,00,000/- to lend the same to the accused and both the Courts have not properly appreciated the material on record. Hence, interference of this Court is required.

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The learned counsel appearing for the respondent would vehemently contend that the Trial Court and the Appellate Court have properly appreciated both oral and documentary evidence placed on record and rightly, convicted the accused. Hence, interference of this Court is not required.

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HC-KAR

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Having heard the learned counsel appearing for

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the respective parties and also perusal of the material on record, it discloses that the accused repaid the amount of Rs.14,44,759/- to the complainant on 01.04.2017 and towards the balance loan amount of Rs.15,55,241/-, accused has issued the subject matter of cheque. Thus, issuance of the cheque is not disputed and signature is also not disputed by the accused. Thus, the accused has admitted the liability by issuing a Cheque and also not disputed the part payment of Rs.14,44,759/-. The very submission of the counsel appearing for the petitioner that the complainant was not having the money of Rs.30,00,000/- to lend the same to the accused and not having the financial capacity and the contention cannot be accepted for the reason that the complainant has made specific pleading that the accused has repaid part loan amount of Rs.14,44,759/- and for remaining loan amount, the subject matter of cheque was issued. When the notice was issued, no reply was given and there is no rebuttal evidence to prove the case of the accused. When there is a presumption, the same is not rebutted by the

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HC-KAR

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accused. The Trial Court and the Appellate Court taken note of the same. Under the circumstances, I do not find any ground to admit the revision petition. The scope of revision is very limited. If orders suffers from its legality and correctness and if there is miscarriage in appreciating the evidence, then only this Court can exercise the revisional jurisdiction. The said circumstances are not warranted in the case on hand. Accordingly, the petition is dismissed.

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Sd/- (H.P.SANDESH) JUDGE

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SN

Smt. C a Vijayalakshmi v. Smt. Lily Mary

Case brief

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Smt. C a Vijayalakshmi v. Smt. Lily Mary

Case brief

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