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2014 DIGILAW 225 (KAR)

K. J. Ramu v. Doddaiah

2014-02-25

PRADEEP D.WAINGANKAR

body2014
Judgment 1. This Criminal Revision Petition under Section 397 of Cr.P.C., is filed to set aside the judgment dated 11.02.2010 in C.C.No.23725/2006 on the file of the XX1 Additional Chief Metropolitan Magistrate, Bangalore city and to set aside the judgment dated 07.12.2010 in Criminal Appeal No.179/2010 on the file of the Additional Sessions Judge and Presiding Officer, Fast Track Court-XII, Bangalore City. 2. The revision petitioner was the accused before the Magistrate and the respondent was the complainant. The case of the complainant before the Magistrate was that the accused and the complainant were friends. The accused had approached the complainant and requested the complainant for hand loan of Rs.4,00,000/- on 08.07.2005 for the purpose of improvement of his business. Considering the request made by the accused, the complainant agreed to pay the loan of Rs.4,00,000/- to the accused. The accused had promised to repay the same within a period of three months. Towards the repayment, the accused issued 4 post dated cheques for Rs.1,00,000/-each dated 15.10.2005 drawn on Union Bank of India, Richmond Town Branch, Bangalore, towards the discharge of his liability. The complainant contacted the accused on 15.10.2005 and demanded to repay the loan amount of Rs.4,00,000/- as agreed. The accused expressed his financial difficulties and requested for six months time to repay the loan and promised to pay the loan amount in the first week of April 2006. The complainant did wait till the first week of April 2006 and finally since the accused failed to pay the cheque amount, the cheques were presented for encashment and all the four cheques were returned with an endorsement "funds insufficient." The complainant enlightened the accused regarding dishnour of the cheque and called upon him to pay the cheque amount. The accused instead of making payment of the cheque amount, gave untenable reply which made the complainant to file a complaint against the accused for the offence punishable under Section 138 of N.I. Act. 3. In response to the Court summons, the accused appeared and denied the accusation made against him. The complainant in order prove the charge levelled against the accused person, examined himself as PW-1 and relied upon 17 documents marked as Exs.P1 to P17 in support of his case. The accused-K.J. Ramu, on the other hand, got himself examined as DW- 1 and examined one Kenchaiah as DW-2 apart from marking Exs.D1 to D10. The complainant in order prove the charge levelled against the accused person, examined himself as PW-1 and relied upon 17 documents marked as Exs.P1 to P17 in support of his case. The accused-K.J. Ramu, on the other hand, got himself examined as DW- 1 and examined one Kenchaiah as DW-2 apart from marking Exs.D1 to D10. Learned Magistrate upon hearing the learned counsel for both the parties and upon consideration of the entire material placed on record, by judgment dated 11.02.2010 convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced him to pay a fine of Rs.6,00,000/- and in default to pay the fine, to undergo Simple Imprisonment for a period of six months apart from ordering payment of compensation of Rs.5,75,000/-. The accused felt aggrieved by the judgment passed by the Magistrate which made him to prefer Criminal Appeal No.179/2010 on the file of the Fast Track Court-XII, Bangalore City. Learned Presiding Officer of the Fast Track Court upon hearing both the learned counsel appearing for the parties and on re-appreciation of the entire evidence on record, also came to the same conclusion and thereby dismissed the appeal and confirmed the conviction and sentence by his judgment dated 07.12.2010. 4. Both these judgments passed by the learned Magistrate and the Sessions Judge are under challenge before this Court. 5. I have heard both the learned counsel appearing for the parties. Perused the records. 6. Apart from oral evidence of the complainant who has been examined as PW-1, he has placed on record all the necessary documents in support of his case. Exs.P1 to P4 are the four cheques said to have been issued by the accused for Rs.1,00,000/- each. Exs.P9 is the copy of the legal notice issued to the accused calling upon him to pay the cheque amount. Ex.P10 and P11 are the postal receipts for having sent the notice both by RPAD and by Under Certificate of Posting. Ex.P12 is the reply notice given by the accused wherein the accused says that all the four cheques below signed by him were given to Kenchaiah-DW-2 and from whose house, the complainant stolen those cheques and presented for encashment. Ex.P13 is the Xerox copy of the sale deed for having sold the landed property to the accused by the complainant on 15.05.2002. Ex.P13 is the Xerox copy of the sale deed for having sold the landed property to the accused by the complainant on 15.05.2002. Therefore, it cannot be said that the complainant was not at all known to the accused. Exs.P14 and P16 are the three sale deeds produced by the complainant to show that he had sold his immovable property to Sri.T.Venkatesh on 31.01.2005 and one Smt. Y.R. Padmavathi on 02.02.2005 for valuable consideration. The sale deeds have been produced to show that the complainant had sufficient amount with him by sale of his landed properties and out of the said amount, he paid an amount of Rs.4,00,000/- to the accused. Ex.P17 is the bank pass book of the complainant to show that he had sufficient money. 7. As against the oral and documentary evidence placed on record by the complainant, the accused apart from his oral evidence and that of oral evidence of one Kenchaiah has also produced Exs.D1 to D10. The defence of the accused is that Kenchaiah- DW-2 was known both to the accused and the complainant. Kenchaiah is the cousin brother of the accused. Towards discharge of his liability towards Kenchaiah, the accused had given four blank cheques duly signed by him to Kenchaiah and from the house of the Kenchaiah those four cheques were stolen by the complainant. Having given a complaint regarding missing of cheques the accused has produced an endorsement given by Bidadi Police Station marked as Ex.D3. It shows that a complaint was given to Bidadi Police Station on 10.10.2005 regarding missing of four cheques. But what investigation has been made by the police is not forthcoming before the Court. The accused has examined Kenchaiah as DW-2 to show that after missing of the cheques, the accused paid Kenchaiah an amount of Rs.4,00,000/- obtained by him. Kenchaiah/DW-2 is none other than the cousin brother of the accused and therefore his evidence can not be given much evidentiary value. No person will stoop down to that level of taking the blank cheques from the house of another person and present the same for encashment. The economic conditions of the complainant were not such so as to stoop down to that level. No person will stoop down to that level of taking the blank cheques from the house of another person and present the same for encashment. The economic conditions of the complainant were not such so as to stoop down to that level. Therefore, it is needless to say for me that the complaint given by Kenchaiah to the Bidadi Police Station and evidence given by him is just to rescue the accused, who is none other than his cousin brother. Both the learned Magistrate and the learned Sessions Judge on appreciation and re-appreciation of the evidence have found the accused guilty of the offence punishable under Section 138 of N.I. Act which resulted in his conviction and sentence. The defence put forth by the accused does not inspire the confidence of the Court. There is no merit in this revision petition. Hence, I pass the following order. Criminal Revision Petition is dismissed.