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2017 DIGILAW 123 (KAR)

Shashidar Raj v. Jossie Pereira

2017-01-18

BUDIHAL R.B.

body2017
ORDER : BUDIHAL R.B., J. 1. This revision petition is preferred by the petitioner-accused challenging the judgment and order dated 16.7.2007 passed by the Additional Civil Judge (Jr. Dn.) and JMFC, Madikeri, in C.C. No. 2248/2002 and also the judgment and order dated 15.10.2014 passed by the I Additional District and Sessions Judge, Kodagu in Criminal Appeal No. 61/2007. 2. Brief facts of the case of the respondent complainant before the Trial Court are that the respondent complainant filed a private complaint stating that petitioner- accused was due for a sum of Rs. 5,00,000/- to the respondent-complainant. The petitioner-accused agreed to pay the said amount and issued a cheque bearing No. 649583 dated 1.7.2002 drawn on State Bank of India, Madikeri. After issuance of the said cheque, he assured the complainant that, the above cheque will be honoured if it is presented for encashment. The respondent presented the said cheque for encashment on 7.10.2002, but it was returned with an endorsement 'insufficiency of funds'. The complainant issued a legal notice on 17.10.2002 calling upon the petitioner accused to repay the cheque amount. The said notice was duly served upon the petitioner accused on 26.10.202. But he has not complied with the demand notice and replied with untenable reasons. Therefore, a case was filed against 8 accused for the offences punishable under Section 138 read with Section 142 of Negotiable Instruments Act for short the 'N.I. Act'). After trial was conducted on behalf of the complainant, he himself has been examined as P.W.l and produced Exs.P1 to P8. On the side of the defence one witness was examined and three documents as per Exs.D. 1 to D3 got marked. After considering the materials placed on record, ultimately, the Trial Court came to the conclusion that the complainant has proved his case and held that the accused is guilty of the offence punishable under Section 138 of the N.I. Act. The judgment and order of conviction passed by the Trial Court was challenged by the accused before the first Appellate Court in Crl. Appeal No. 61 /2007. The first Appellate Court also after re-appreciating the matter dismissed the appeal by its judgment and order dated 15.10.2014. Being aggrieved by the judgment and orders of the Courts below, the accused has preferred this revision petition. 3. Appeal No. 61 /2007. The first Appellate Court also after re-appreciating the matter dismissed the appeal by its judgment and order dated 15.10.2014. Being aggrieved by the judgment and orders of the Courts below, the accused has preferred this revision petition. 3. Heard the arguments of learned Counsel for the revision petitioner-accused and also the learned Counsel for the respondent-complainant. 4. Learned Counsel appearing for the petitioner-accused submitted that the procedure followed by the Trial Court in allowing the criminal case is not in accordance with law and the Trial Court allowed the accused person to file his affidavit by way of examination in chief, which itself is against the procedure and provisions of the N.I. Act. Hence, he submitted that the revision petition is to be allowed and the matter is to be remanded back to the Court below for fresh consideration. In support of his contention, the 'earned Counsel has relied upon the decision of the Apex Court in case of M/s. Mandvi Cooperative Bank Ltd. v. Nimesh B. Tahkore, I (2010) SLT 133 : I (2010) BC 600 (SC) : I (2010) DLT (Crl.) 150 (SC) : I (2010) CCR 215 (SC) : AIR 2010 SC 1402 . 5. Per Contra, learned Counsel for the respondent complainant made submission that regarding the contention that accused when preferred an appeal before the first Appellate Court, he had not taken the contention that the Trial Court allowed the accused person to file his affidavit by way of examination-in-chief, even looking to the materials itself, the accused himself filed the said affidavit and it was not as per the direction of the Trial Court. The learned Counsel also submitted that the case was of the year 2002. Hence, after long lapse of time, the accused is not permitted to raise such contention before this Court and submitted to dismiss the revision petition. 6. Perused the grounds urged in the revision petition and also the judgment and orders passed by the Trial Court as well as the first appellate Court. Looking to the findings of the Courts below, the Trial Court after considering the oral evidence of P.Ws. 1 and 2 and the documents Exs.P1 to P8 so also the evidence of D.W.1 and the marked documents at D-series, ultimately, came to the conclusion that the complainant has established his case that the accused has borrowed the sum of Rs. Looking to the findings of the Courts below, the Trial Court after considering the oral evidence of P.Ws. 1 and 2 and the documents Exs.P1 to P8 so also the evidence of D.W.1 and the marked documents at D-series, ultimately, came to the conclusion that the complainant has established his case that the accused has borrowed the sum of Rs. 5 lakh and he has not repaid the same. After considering the entire material on record, the Trial Court arrived at the conclusion that the accused has failed to make out his defence to the satisfaction of the Court and ultimately, held him guilty of the offence punishable under Section 138 of the N.I. Act. Accordingly, the Trial Court convicted him of the said offence. Even according to the judgment of the first Appeal late Court, it goes to show that the first Appellate Court has re-appreciated the matter and elaborately, discussed the judgment and ultimately, held that no illegality has been committed by the Trial Court in convicting the accused and there are no grounds to interfere with the said matter. Accordingly, the first Appellate Court also dismissed the appeal. 7. Looking to the judgment and orders of the Courts below, I am of the opinion that the entire materials placed on record were properly considered and appreciated by the Courts below. There is no illegality committed by the Courts below in coming to such conclusion. 8. Regarding the decision relied upon by the learned Counsel for the revision petitioner, looking to the materials placed, it is rightly submitted by the learned Counsel for the respondent herein that there is no such direction of the learned Magistrate to the petitioner accused to file an affidavit by way of examination-in-chief. The accused himself has filed such affidavit before the Court. Therefore, this contention of the respondent complainant that the petitioner accused has taken such false contention before this Court only to avoid making payment of the amount is to be accepted. Looking to the facts and circumstances of the case in the said decision and also the facts and circumstances of the present case, the said decision will not come to the aid and assistance of the revision petitioner. I do not find any merit in this revision petition. It is accordingly dismissed.