9911796707
TMI Blog2021 (6) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... e even after completion of the sale transaction of the house, appears to be more probable. Both the trial Court and the Sessions Judge's Court without appreciating these aspects, have carried away by the fact that the complainant has produced the dishonoured cheque at Ex. P-1 and an agreement at Ex. P-9 and held that the alleged guilt against the accused has stood proved. Since the said finding now proves to be perverse and erroneous, the same deserves to be set aside - Criminal revision petition allowed. - Criminal Revision Petition No. 357 of 2015 - - - Dated:- 21-4-2021 - Dr. H. B. Prabhakara Sastry, J. For the Appellant : Shwetha P. and S.M. Shivabeeraiah, Advocates For the Respondents : S.V. Manjunatha, Advocate ORDER Dr. H.B. Prabhakara Sastry, J. 1. The present petitioner was accused in C.C. No. 32000/2009, in the Court of the learned XXII Addl. Chief Metropolitan Magistrate, Bengaluru City, (hereinafter for brevity referred to as the trial Court ). By its judgment dated 25.08.2014, the trial Court convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act, 1881, (hereinafter for brevity referred to as & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said order, the accused preferred an appeal in Criminal Appeal No. 1045/2014, before the Court of learned Presiding Officer, Fast Track Court-XV, Bengaluru, (hereinafter for brevity referred to as 'Sessions Judge's Court), which by its judgment dated 12.03.2015, dismissed the appeal by confirming the judgment of conviction passed by the trial Court. It is against these judgments of conviction, the accused has preferred this revision petition. 7. The respondent is being represented by his learned counsel. 8. Records from the trial Court and Sessions Judge's Court pertaining to the matter were called for and the same are placed before the Court. 9. Heard the arguments from both side. Perused the materials placed before this Court. 10. The only point that arises for my consideration is,- Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court . 11. Learned counsel for the petitioner in her brief argument submitted that though the agreement of sale of the house between the parties is not in dispute, but, Ex. P-9 is not an agreement of loan, but, it is also a part of agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant had given a sum of ₹ 4,70,000/-. At the same time, the very same witness in the very same evidence has also stated that the said amount of ₹ 4,70,000/- given by the complainant was towards the outstanding liability of the loan availed at Canara Bank, South End Circle, Bengaluru, for which housing loan, he (DW-2) was a guarantor. According to DW-2, it was at that time, for the purpose of security, the complainant had taken the cheque in question, but, did not return the said cheque later. DW-2 has also stated that when he demanded the return of the cheque, the complainant harassed him and took him to a lonely place and released him only after he agreeing to their demands. However, admittedly the accused, who claims himself to be a Law Graduate, has not taken any action for his alleged abduction. DW-2 also has stated that the said amount of ₹ 4,70,000/- paid by the complainant was as an advance amount towards the purchase of house by him from the accused. 14. The accused who got herself examined as DW-1 also has stated that the amount paid by the complainant was towards the advance amount under the agreement of sale. It was at that time, he had col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of agreement i.e., on 19.09.2008, the accused had availed a loan of ₹ 4,70,000/- from the complainant in cash for discharging the loan borrowed by the accused in Canara Bank and also to discharge the personal loans availed by them from various persons and the rate of interest at 2.75% per month was also shown to have been agreed by the accused as payable to the complainant, however, with respect to only a sum of ₹ 2,50,000/-, but, not with respect to the remaining part of the alleged loan, which is ₹ 2,20,000/-. 17. In the cross-examination, the complainant as PW-1, who claims himself to be a Bus driver in Bengaluru Metropolitan Transport Corporation (BMTC), having an income of ₹ 20,000/- per month, has stated that he had entered into several that he has entered into three or four agreements with the accused. Admittedly, except the one at Ex. P-9, no other agreements said to have been entered into between them have been produced by the complainant. 18. PW-1 in his cross-examination has also stated that the sale consideration towards the purchase of the house has been paid in installments, which amount after receiving by them, the accused have credited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loan liability. He also (the complainant) availed a loan from the very same Bank and the bankers have adjusted the said loan amount availed by the complainant towards the loan of the accused and the bankers themselves have appeared in the office of the Sub-Registrar and produced the documents. However, the witness has stated that about the payment of the balance amount of the sale consideration, though there is a document, but, he has given it to his advocate. By stating so, the witness has shown that the alleged outstanding liability of the bank was cleared by himself by availing loan from the bank and the same was adjusted to the alleged housing loan of the accused by the banker. If that were to be the case, the question of the complainant giving any hand loan to clear the loan, that too, by cash to the accused does not arise, whereas, the specific case of the complainant is that on 19.09.2008, he has given a loan of ₹ 4,70,000/- to the accused by way of cash. Therefore, the contention of the complainant that his loan proceeds was adjusted towards the alleged housing loan of the accused in the same bank if taken as a fact, then, his contention that he had given a loan of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions. The cheque at Ex. P-1, according to PW-1, was given with respect to an agreement dated 19.02.2008 as evidenced in his cross-examination and the said agreement admittedly is not produced before the Court since PW-1 in the very same cross-examination has stated that it is with his advocate. On the contrary, in his examination-in-chief he has stated that the alleged loan of ₹ 4,70,000/- was under an agreement dated 19.09.2008, which is at Ex. P-9. Apart from these two totally contradictory stands, the very same complainant as PW-1 has also stated that the loan was given to the accused in the form of he raising a bank loan with the very same bank which adjusted his loan proceeds to the housing loan of the accused. If that is so, the question of he once again giving a loan of ₹ 4,70,000/- for clearance of the housing loan, that too, in cash to the accused does not arise. 23. Thus, the entire evidence of PW-1 is contradictory within itself on several counts and does not inspire any confidence to believe that the accused had issued the cheque at Ex. P-1 to the complainant towards any legally enforceable debt or liability, more particularly towards Ex. P-9. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
