IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 1st DAY OF D1':3CEIVIBER_,----fiV?..I)"(Z'}'9V~' . BEFORE THE I-ION'BLE MR. JUSTICE L.IIIAR_Iw.AN'A.. CRIMINAL REVISION PETITION"No;I_2s2]2'oo§ C/w. I I I CRIMINAL REVISIQISI ~IPE';IfITII5N~..IsIIo"';~IR431/2006 CRL.RP N0 123; E20015" H BETWEEN: 1. SRIRAD, s/'0.,M1ArIA1:IALE_sH\«vAR HBJGDE AGE:':4~O"YEARSQQCC;AGRICULTURE R/0 HULGOL '£'._ALUI< SIIREJTALUK UTTARA"I<'ANNAD_A'~._ " I .-- . " ._ '- PETETIONER (By Srvi: §vI.?B=.NARAGUHN"1j"§ SONA VAKKUND, ADVS.) I I. T'RIYA«:§/1.13A'K s HEGDBJ AGE--._3és YEARS I * mo HITTALAHALLI TALUK YELLAPUR _ .1)1$~'1" UTTARA KANNADA ' " RESPONDENT
I (By’Sr1. GANAPATHI S SHASTRE, ADV.)
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CRL.RP NO.1282/2006 IS FILED U/S.397i”:*–R/W'<:'4*Oi'"': *
CR.P.C BY THE ADVOCATE FOR THE PETITIO.NERwv.P'RA'{.ING"" _
THAT THIS HONBLE COURT MAY .EE»..pLE'ASEDT-..TO' SET"-.
ASIDE THE JUDGMENT AND SENTEANCEOPASOSED"—BYV"THEDA
DIST. 8:, S.J., U.K, KARWAR, IN CRL.A.VNO_.57/OS.,DT..2.2§4;G6 '
CONFIRMING THE JUDGMENT .AN_D SENTENCE.'V:PAS.SED..¥BY
THE ADDL. J1VIFC., SIRSI, IN c.c.NO'."79o/00—DT29,6.0'5.
CRL.RP NO 1481 OF 2006
BETWEEN:
TRAYAMEAKSHEVC-.DE_ V
AGE:31YEARS f "
R/O HI'I'TALAHALLI__ *
YELLAPUR TALUK=i._ " A
U.K. DISTRICT _
1 ' ~ PETITIONER
{By Sri. GAN'A.xPA'1'HI ADV.)
AND:
1' SHEIEAD MAHABALESHWAR HEGDE
AGE: 40 XEARS' j..
' R/Q«HU~1';_GQL;
SIRSI TA;L'LJ-E
U.K-. D1.'ST;v"
'~ : RESPONDENT
gB3%f”Sr§. M.B.NARAOUND;SONA VAKKUND, ADV.)
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CRLRP N0.1481/2006 IS FILED U/S397 AND. 401
CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRVASHNG
THAT THIS HON’BLE COURT MAY BE PLEASED
ASIDE THE ORDER D’I’.9.6.05 IN c.c.N0.790/0:0..QH__’__T.II.E._
FILE OF THE II ADDL. JMF’C., SIRSI, AND ALs04″‘SET_’AStD_E«a 2
THE ORDER DT.22.4.06 IN CRL.A.NO.65/05 QI\I_fIfHE FILE OF” ”
TI-IE DIST. 82; S.J., KARWAR. –.
THESE REVISION PETITONS; €iOI§4IN’G_:”
ADMISSION THIS DAY, THE COURT MADETHE Ev0I,LQw1I$§GiI
ORDER IN C;RL.RPA Nd’;1.232_/2o0’5–
The petitioner filed this’ the judgment
and order passed by the Vant:l._SeVssiDr1″s Judge, Uttara
Kannada, Vt.I{arWieir5″in;C3ri.tn’ina1. ‘Ahpeal ‘1§\§0.57/2005 by its order
dated 22.04.2006 Drder passed by the II Acldi.
JMFC, Sirsi Iiyicic.tNe’.7é0/’2»0’00 dated 09.06.2005.
Submitteiciié by the learned Counsel for the
p’CT.”itviQ’nV€V1″”–.1_lT’Ld€F some peculiar circumstances the
agreement Qfisaileiias per Ex.P6 and cheque as per Ex.P2 came
“–«._,_tc’In_be in “eVx_i’stence. By Virtue of the existence of these two
«._t1fringVS,’.ti_1e complainant preferred the complaint under Section
A
200 Cr.P.C for recovery of a sum of Rs.3,50,000/–.
amount of Rs.3,50,0()O/– is legally recoverable debt_.,”‘:–«
3. On behalf of the cornplainant,ff’AA’f\i7Vi1’wais_eXam.iI1edV:and
the documents at Exs.P1 to P6 have been:’111arkedV._”tig AiAO’11″behaif if
is-‘
of the respondent, he has been exarnined him.se1’f but
no documents have been rriaijl-<ed.,<"" "
4. The brief facts of according
to the complainant’::’th_er§:7was dg’i%»’:ei11}an: entered into
between the as per Ex.P6.
The conterfltsiiciiiif accused had agreed to sell his
house for theueonsideration:M-:f§’;4,00,000/– and according to
him, the.compfai:1:ar1t..7’ha.s oaid Rs.3,50,000/– on the spot.
:.’:’f’hcreaf’ter, ?.t’he”comp1ainiant found that the house which was
to: was in the name of the father of the
5…v.accused__.i Hence ~~};here was a demand made to the accused for
_i_igi’_:«.,_retuVrn of the amount of Rs.3,50,000/-. The accused instead of
payiiag said amount, had issued a cheque for the said
i” .amoui;é.t marked at Ex.P2 dated 17.05.1998. On 20.05.1998,
i
Rs.4,00,000/m as price for the house of which
Rs.3,50,000/– was denied.
6. The complaint made by theiicioniplvainant
registered in P.C. No.94/98 on the fi1ei’ofiJMF’CgSirsi”
same was numbered as CC N0.”if9@:/2000.’. by
its order dated 9.6.2005 passed ‘sentencing the
accused for the offences ,S”ect_ion 138 of NJ.
Act, against vioreferred a criminal
appeal No.57i”jh_is:’t.ricVt’and Sesions Judge,
Uttara came to be dismissed
by order dated 22V.o:4;2’a§)ei, egei’i’ne;t which this petition is filed.
7. _()_n behalfiof-theicoriiplainant, he has been examined
PM/1″;A.&He haismstated in his evidence that EXP6 was
ur1r_egis_tere:c’i’«.._gV.M ;’\iifteri_:..the agreement entered into between the
i it’v.,»parties,,__ihe know that the house belongs to his father.
.Qin__I7.05.’1f9i9.8, he was given cheque for Rs.1,50,000/– which
c_a1=nc_t0″‘*be clishonoured. In his crosswexamination, he has
dejposed that he has not aware as to where the said house is
to
situated, in which survey number and also he has notiineen
confirmed that the said property has been come”
purview of which Panchayat limits and also in whose the V’
property stands. He has also not h,a\}ing’.anyf d;CCtI1nents:i«’in”‘.
respect of the transactions between the’~pairties. also
that he do not know the its
schedule and also not l.<.—-1i1.own rnany rooms it
contains and what is area. While
answering to the' §l1Ates§i_ons._'isdbsptitdtedpyii'thei'Vaccused, he has
stated that total"a'rnoi._in';t of was with him on his
hand and; he didviiiot idVrax,y."th_e said amount either from the
bank or froni the he did not take any signature
from theaccuseud forhaving paid the said amount.
int the above, the learned Counsel for the
petiitioiri-er sub'j1_n__its;."that the very existence of the transaction
between" the parties is suspected one. The complainant himself
st..a1_;ediin his deposition that there is an agreement of sale
per" 'E3x.P6 and the said transaction went in respect of
ii,inl§1'1own property. The payment of Rs.3,50,000/–which was
i
available on his hand is also unbelievable since Ex.P6 does"–not
contain the signature of any witnesses. As it is sta.ted»
chiefiexamination and also cross–eXamination, the 'c.omplainanL~
was not knowing anything about the house,. either itsl«loca'lity,'V".
survey number, katha number and its possession,"»builtg.tz~pl'
area etc. In View of the above?
failed to prove the transaction be_t.vveen”the con1p.l.aiI.1ant and
accused and hence the ques’tion_of cjaseunder Section
138 of NI. Act is farv fetching.:”: IV)k:s;:»itlel..Vo1l’.:l;3:’;l1’these in–built
lacunae, the llalcclused which goes
contrary to the bfov_isiol31.s oflavv. _
9. The ll’e.ar*1:.edxl for the respondent contended
that acefiused has”‘:20Vt_ ____ stated anything in respect of the
‘Aexis.tence ieithe~r__Ex.P2 or EX.P6. He has admitted the
signlatulfe. and entries of EXP6. When there is
admission, V’—Vhe'”cannot reverse by saying the absence of
“ltr’anlsact_ion between the parties. Hence he submitted that the
Cl_l’ouI”t_lbe’low has rightly convicted the accused and hence he
it su’bmitted to dismiss the petition.
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10. The learned Counsel further submittedV.¢th*at””ttrhenV.
the accused made an offer to sell the house to the’7«c_on1plai’naI;ti
having interest in purchasing the same’;’ the c’ompEain.an:t’paid”;
Rs.3,50,000/– in the spot itself since he it-i.as’ihaifi:1;g~the
amount. Since the transaction we.nt”~.betWe’en the parties as per V
EXP6, after accepting the same-,——– hp-etitione’rv–..her:ein has
issued the cheque’ as the above, the
complainant has s._:ttisfied;’the’requi«r:ernent;of’ Section 138 of
N .1. Act and ..re1a”tior:ship between these two
persons and iAiifu:tfth_e15QVtheiflcomplainant has proved the
ingredientsiof Section’ Act. In respect of the said
subrnission, heiureliiedoin the ifollowingjudgmentst
%,.j~AI1?_ 2544 (in the case of K. S.
–.,’v4:s’avty:iiinarayana vs. V. R. Narayana Rao)
tiZt_g_reem.ent for sale of property through defendant
;i’&’o.:..,’:,’?’ tuhom IS’ defendant, the owner had authorised
” _ to enter into such agreement on his behalf –
payment of money by plaintzfl” to both defendants,
as sale consideration ~– Plea by defendant No.1 that
there was no privity of contract between him and
4
iii)
plaintiff W Doctrine of undue enrichment”e..ii;’mLlZd
squarely apply as payment was not grci_t;iiitoi_1;=.:__”»i.it _
could be payment under mistake also”‘zf.d¢{_fendant*«
No.1’s case was acceptedg-pla–i.ntzjf was::entitledlfor~ey
restoration in any case. ”
AIR 1930 so 1336 {in £ize””case.v..5f.finial;
India vs. M/s. J. Plant) Eeiien in the
absence of any agree.ment_ between’ the parties, if
the consideratiarifjs acce;ptede«r.h_as to be restored
back to the complalinant_”.b _
AIR _ .:{9:?.6 ‘_j;.e2.§’3.i”_:.._fin”; the case of
Dh.qrLyai§1e1sIar§:i_A11-gziee if; miter’ etc. vs. The
Cdniniisisyioner._ofV]CiiIi’I Supplies and another).
Vvr”‘Head’:i:Note:’§V “(g’3s.):b””.’1:.3,”z;en the payment is made by
m.ista.ke’t’hatVlhas–.to”be restored to the complainant”.
‘AIR _2lG08b (in the case of Bharat
V’ ‘V Pefroleum} Ltd. Vs. Great Eastern
__iShuippin’g»CQ..’Ltd.) Head Note (13) “Agreement in
.Sub”Silentto W Therefore, terms of contract between
can be proved not only by their words
baVt.:al,so by their conduct”.
–..’.zo0’9(1) Civil LJO 616 (in the case of P.
bi vfllenogopal vs. Madan P. Sarathi — the
complainant proved his case for grant of loan.
“‘\
Burden shifts on the accused failed to disc.?ia.r:g_”ehis
burden.
Hence, it is submitted that in .insta–ntMc’as_e» a1so’A.the_V uh
compiainant has proved that as per Ex.P15′,c theitagreernelttfihas.i
been entered and by way of issv-‘ring the”chhee;ueVE:§.P2, _ F
the accused has a.ccepted for.:haVin_g ‘into the
agreement between the the existence of
transaction by issuing has not yet tried
to take the no agreement
between the
11_ I ‘«v444VtheV””argument made by both the
parties.
treferretihhhhthe judgment reported by Supreme
Kar R 219 between Krishna Janardhan
‘ Bhat’ G. Hegde — para 19, 23 and 29 and (2008)
632 (in the case of Rajasthan State Electricity Board vs.
«.EJ’n.hicn:ohj””A_«[ndia and Others) and another judgment reported in
‘<
2005 (5; Kar.L.J. 307 (in the case of Keygien Gzobastjtafi-axed,
Bangalore vs. Madhau Impex, Bangalore and Anothef). V
13. The points that would arise {of c’o.nsi[de’1fat.1fo’n.V
1′) Whether the complaintanthas pvrovea ttFieAj'”aVcE–v€ha:t he ” V
has paid R33,50,000/tifiotttthe accusea? 3
11} Whether the accused Ex.P2;’A the cheque
in favour of the”co}npl;1Jin:grjI?’W AA
My answer;*’w’o;u,ld be in ~rav¢”u_r’ “of’*t–he accused for the
following reasons: t”
14. ‘Fhe_ co1nV;V’)!aiVnazdt.:_”.has stated in the petition that
under the peculiar” ‘~-Vci;rc_t&1&:nstances his signature has been
‘collected ‘.the “e.heque and also on the agreement as per
expiained that the accused had a case
thin: the Courvtviofbivif Judge, Sirsi wherein he has utilised the
“‘.vser§?iceat’_of an advocate by name Shri Rama Joshi. The said
ad.Vo’c_ate”‘had a junior by name Vishwanath Hegde who
Vt happens to be the reiative of the complainant, has obtained in
‘\
a dominant position the signature on the agreement
on the cheque. it is the case of the cornplainantfhatihellhas’1 ”
paid Rs.3,50,000/w of cash on the spot_,….i-Ie’ has
himself as PW1. Except his statementein :his’iiov\ir1_ case,
not adduced any independent v?i_t’1*;ess and not ‘any ” V
materials to prove that he had on the
spot to the accused. When…_.tl’1eA amount to the
accused itself is in disputev_a:id_ himself
has failed in accused, it is
difficult to belielve that he has paid
Rs.3,50,0(}li)ll/lliliito theuaccused has paid return
cheque for came to be dishonoured.
The question ofllpaiizn1er1t is the question of fact which is to be
fproved aducing evidflence and placing material documents.
On_proyi11.gi”‘the»v isa._nlfif:, the complainant has to rise the jural
it’z,v.relation,shipv_and:_’legal claim for payment of Rs.1,5O,OOO/A
wasdishonoured. Section 138 of NI. Act contemplates
the instrument is issued on which if the
V” compllainarit has legally recoverable debt for prosecution, then
i
E
16.
the agreement is not proved, but if the accused ”
the signature on Ex.P6 and P2 — the chyeque,’it”i’s:’_pre’su_:ned,_V ii
that the accused has accepted
gratuitous payment.
should be directed to return the The ‘s’aidisubrnissions
also required to be proved respect of the
existence of contract betweenijvvitfhen the very
acceptance of ‘made to in dispute, the
question of iiireturn the amount does
not arise.
I 7. Inithe referred by the complainant in AIR
1999 SQ2544 (supra), he refers head note 13 wherein it is held
of’«-undue enrichment would squarely apply as
in ifiéntftledyfor”restoration in any case”.
paym_e’r;r’t .u}asi”m:_: gratuitous. It could be payment under mistake
xiiiiiavfso 1fi’defe__ndan’t No.1’s case was accepted. Plaintiff was
The said statement has
5een..Vexarnined with the relevant facts existed therein. But in
of the facts and circumstances herein, the said
it
The submissions of the complainant
When such -b’.ei1’1g’i'[i’]€i.C£3.S6′,Tlili:jE:V__a(;Q1$iS€d _ >
to be proved by the complainant. in a case of this
however it is essentially a question of fact. In t_he- ”
Section 118 and 139 of Negotiable In_stru_rnents ii
referred with regard to the presuinptijon’iasfito
instrument. Section 118A reads.th’a_t “Where the v 1′
been obtained from its lawful or frorn person in
lawful custody thereofi by or fraud or has
been obtained from the malgeror by means of
an ofience orfrattdgiioyriforp the burden of
proving that a dueiiciourse lies upon him»,
Section llhial.V__’h’?resuimption in favour of holder
— it shall be presufned, contrary is proved, that the
holder ofa cheaue.:ireeeiued cheque, of the nature referred to
5338411′ f0?’ théifldischarge, in whole or in part, of any
dezw;i_azhggr-..aiia5izf:g.” In Section 118 and 139 of N1. Act,
q._presuim_pitior1. .iis”i;driawn in favour of the holder of the cheque.
When”the cheque is to be seen through the existence of
agrecrr:er1_t or specially when it is disputed, it is for the
._con1pl%ainant to prove the same. By looking at any angle, the
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.j’g’ab.
complainant has not discharged his burden suffic:’ierriIy.[:.V’tQ
prove his case.
18. In View of the above circtfrnstaéncves, I’:’a’nsW=er»._.13Vo.rh.’
the points in favour of the accused. Acco”r’dingiy,v–“th:is fnetition
is aiiowed. The order passed by fh.e:K”Court Vbelow-dis aside.
Ordered accordingly. Dveposit rr1ad’es-:’j4b3}’s’-the acvciised to be
refunded to the accused.
19. in View we::”dispo.sa_1.ofV’CrI.”RP No.1282/2006,
the question 55.c:g,g§idér1’x1g”‘cl-1.§§15 1§j:o.V14s1/2006 does not
arise and . _’
Eudge