Kishore Verma v. Oriental Bank of Commerce, Ujjain
2008-08-18
N.K.MODY
body2008
DigiLaw.ai
Judgment N.K. Mody, J.: - Being aggrieved by the judgment dated 16.6.2007 passed by VII ASJ, (Fast Track), District-Ujjain in criminal appeal No. 190 of 2007 whereby judgment dated 16.4.2007 passed by ACJM, Ujjain in criminal case No. 3494 of 2006 whereby the petitioner was convicted for the offence punishable under Sec. 138 of Negotiable Instruments Act (which shall be referred hereinafter as “Act”) by sentencing him to one year RI with fine of Rs. 1,000/- and shall pay a sum of Rs. 99,500/- to the respondent was confirmed, the present revision petition has been filed. 2. Short facts of the case are that petitioner was prosecuted under Sec. 138 of the Act alleging that petitioner took car loan from the respondent which is amounting to Rs. 2,90,000/- and executed the necessary documents in favour of respondent/bank. It was alleged that petitioner gave post dated cheque of Rs. 90,159/- to the respondent/bank on 21.2.2006. It was further alleged that upon presentation the cheque, the cheque was bounced, hence notice was issued but inspite of notice no reply was given by petitioner, thus, prosecution was filed. After framing of charges and also after recording of evidence the offence was found proved and petitioner was convicted as stated here-in-above. An appeal was preferred against that order which was dismissed, hence this revision petition. 3. Learned counsel for the petitioner argued at length and submits that petitioner has convicted illegally while petitioner has not committed any offence. Learned counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this revision. It is submitted that the learned Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is further submitted that against judgment dated 16.6.2007 petitioner filed revision alongwith an application for suspension of jail sentence which was allowed vide order dated 28.6.2007 whereby the petitioner was directed to be released on bail upon furnishing surety of Rs. 20,000/- with a personal bond to the satisfaction of the Trial Court for his regular appearance before this Court. It is submitted that petitioner could not manage to furnish the surety, therefore, he is in jail with effect from 16.6.2007 itself. Learned counsel submits that the conviction and sentence be set aside. 4.
20,000/- with a personal bond to the satisfaction of the Trial Court for his regular appearance before this Court. It is submitted that petitioner could not manage to furnish the surety, therefore, he is in jail with effect from 16.6.2007 itself. Learned counsel submits that the conviction and sentence be set aside. 4. Learned counsel for the State submits that after due appreciation of evidence both the Courts below have found the petitioner guilty for the aforesaid offence. It is submitted that revisional jurisdiction of this Court is limited and no interference is called for in the concurrent findings recorded by the Courts below. 5. From perusal of the record it is evident that both the Courts below concurrently found that the petitioner has committed offence for which the petitioner has been convicted. This Court is well aware about the limitation of this Court while exercising the revisional jurisdiction, which does not empower re-appreciation of evidence. Hence so far as conviction is concerned the judgment passed by the learned Courts below is maintained. 6. From perusal of order dated 31.10.2007 passed by VII ASJ, Fast Track, Ujjain, it is evident that the bail was not furnished by the petitioner, thus, the petitioner has already suffered the sentence which was awarded to the petitioner. In view of this, the petitioner be released forthwith, if not required in any other case. 7. With the aforesaid modification, the revision petition stands disposed of.