CRL.RP/749/2024 of KAVITHA N Vs SMT. CHINNAMMA on 29 June 2026

ORAL ORDER

Heard the learned counsel for revision petitioner and the learned counsel for respondent.

2. The factual matrix of the case of the complainant before the trial Court while initiating proceedings under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I. Act’ for short) wherein it is specifically pleaded that the accused and the complainant are known to each other. The accused has approached the complainant for hand loan of Rs.10,00,000/- (Rupees Ten lakhs only) for her domestic necessities. For repayment of said amount, the accused has issued a Cheque on 28.03.2017 and the same was presented. On presentation, the said Cheque was returned with an endorsement ‘funds insufficient’. Thereafter, the complainant issued legal notice the accused on 05.04.2017. Inspite of service of notice,

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accused did not pay the Cheque amount. Hence, the complaint is filed against the accused for the offence punishable under Section 138 of the N.I. Act and cognizance was taken so also the accused was secured. He did not plead guilty and claims the trial.

3. In order to prove the case, the complainant is examined as P.W.1 and got marked 07 documents as Exs.P1 to P7 and the accused is also examined herself as D.W.1. and got marked 2 documents namely death certificate of accused husband as Ex.D1 and the sale deed as Ex.D2. The trial Court having considered both oral and documentary evidence on record and particularly the defence taken with regard to cross-examination as well as reply notice at Ex.P6, comes to the conclusion that though accused took the defence and the same was contrary to her own evidence and also taken note of the reply given by the accused wherein she has not taken such defence. Further, it is also noted that during the cross-examination of P.W.1, the accused counsel has taken a defence that

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the accused has taken Rs.5,00,000/- (Rupees Five lakhs only) at the interest of 5% from the complainant and the defence that she has sold the property and repaid Rs.3,80,000/- (Rupees Three lakhs eighty thousand only) and the remaining Rs.1,20,000/- (Rupees One lakh twenty thousand only) was not paid but the Cheque was misused.

4. Further, the trial Court also taken note of the contents of reply notice at Ex.P6 and the same is total denial of the transaction but the evidence of D.W.1 is contrary to the reply notice at Ex.P6. The trial Court while taking note of the variance in the reply notice as well as evidence led during the course of examination, did not accept the defence of the accused. It is also pertinent to note that in the reply notice at Ex.P6, she has not taken that defence and the same is observed in paragraph No.17 of its judgment thereby convicted and sentenced the accused for the aforesaid offence. The said order was challenged by the accused before the appellate Court in Crl.A.No.1/2023.

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5. The appellate Court also re-appreciated both oral and documentary evidence on record particularly taking note of the fact that the defence which was taken that the complainant is not having financial capacity to lend the money to the accused. But the trial Court opined that the very D.W.1 has admitted the transaction but only contended that an amount of Rs.5,00,000/- was taken as hand loan and agreed to repay the same with interest at 5% and as such come to the conclusion that when the complainant is not having financial capacity, then question of lending Rs.5,00,000/- to the accused as loan does not arise and also taken note of the judgment of the Hon'ble Supreme Court in the case of K Subramani vs. K Damodara Naidu reported in (2015) Supreme Court Cases 99, confirmed the judgment of the trial Court.

6. The main contention of the revision petitioner is that both the Courts have committed an error in not considering the case of revision petitioner and he would also contend that during the course of cross-examination

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of P.W.1, she stated that she sold the property and given hand loan to the accused in the year 2017, but the complainant has not produced any document to substantiate the same. If it all she is really to made the payment, she could have produced the sale deed of the same.

7. Further, the counsel would also submit that the transaction was between the husband of the accused and complainant and there was no transaction between the accused and the complainant. These are all the material which was not considered by the trial Court as well as the appellate Court which requires interference of this Court to exercise the revision powers.

8. Per contra learned counsel appearing for respondent would vehemently contend that though the sale deed is not marked, it is admitted by the complainant that she has sold the property and also the D.W.1 accused categorically admitted in her cross-examination that he has availed hand loan of Rs.5,00,000/- but not

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Rs.10,00,000/- and also contend that interest is paid at the rate of 5% per month. Further, he contend that an amount of Rs.3,80,00,00/- was paid and for remaining amount of Rs.1,20,000/-, she has issued Cheque and the same is misused by the complainant. To substantiate the same, no such document is placed before the Court and for having paid an amount of Rs.3,80,000/- also, there is no document produced. Further, no attempt is made to take back the said Cheque. As such, both the Courts have rightly appreciated the evidence on record and requires no interference by this Court to exercise the revisional powers.

9. Having heard the learned counsel for the revision petitioner, learned counsel for respondent, the grounds urged in the revision and so also both oral and documentary evidence on record, the points that would arise for my consideration are:

a. Whether the trial Court and the appellate Court committed an error in not appreciating the material on record?

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b. Whether the order of conviction and sentence suffers from legality and correctness?

c. What order?

10. Having heard the learned counsel for revision petitioner and the learned counsel for respondent, the specific case of the complainant is that the accused have approached the complainant for a hand loan of Rs.10,00,000/- and the same was given by the complainant. With regard to the fact that the complainant is having financial capacity to lend an amount of Rs.10,00,000/- and when the question was put to P.W.1, she categorically submits that she has sold the property and out of sale consideration, the same was given to the accused. But the Court has to take note of the reply given by the accused in terms of reply notice at Ex.P6 that there was no such transaction between the accused and the complainant. However, during the course of cross- examination, different defence was taken that she was availed Rs.5,00,000/- from the complainant for the

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interest at the rate of 5% and also contend that an amount of Rs.3,80,00,00/- was paid to the complainant and for remaining amount of Rs.1,20,000/-, she has issued Cheque and the same is misused by the complainant. To substantiate the same, no such document is placed before the Court and for having paid an amount of Rs.3,80,000/- also, there is no document produced. Further, no attempt is made by the accused to take back the said Cheque, but no such contents are available in the reply notice at Ex.P6. But it is stated in the notice that the transaction was between the husband of the accused and complainant and there was no transaction between the accused and the complainant and these facts are forthcoming in the reply notice and the same was within the knowledge of the accused, instead the accused has taken false defence that there is no such transaction between her and the complainant. But during the course of cross-examination of P.W.1, she set up a different story and also the accused for having repaid the

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amount of Rs.3,80,000/-, no document is produced to this effect and no attempt is made to get back the Cheque given to the complainant for the balance amount of Rs.1,20,000/-. The transaction between the accused and the complainant is admitted and defence is contrary to the evidence of P.W.1 and reply. All these factors are considered by both the Courts and in view of admission on the part of accused that there is no such transaction between her and the complainant, the question of availing Rs.5,00,000/- as hand loan does not arise.

11. Apart from that Cheque at Ex.P1 contains the signature of the accused and the same is not in dispute. Moreover, the notice is served and the defence which was taken during the course of cross-examination is nothing but an after thought that too as against the contents of reply notice at Ex.P6. All these facts are taken note of by the trial Court as well as the appellate Court. The scope of revision is very limited and this Court can exercise its revision powers when the orders of the trial Court as well

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as the appellate Court suffers from the legality and correctness and also if there is any miscarriage of justice. Here in the case on hand, no ground is made out to entertain this revision. As such, I answer the above points in negative.

12. In view of the discussions made above, the criminal revision petition is dismissed.

Sd/- (H.P.SANDESH) JUDGE

SSD List No.: 1 Sl No.: 79