A. v. Ramprasad S/o Venugopalachar VS Chandrashekar D. S/o Durgaiah P.
2017-02-08
R.B.BUDIHAL
body2017
DigiLaw.ai
ORDER : Though the matter is listed for admission, with the consent of both sides, it is taken up for final disposal. 2. This revision petition is preferred by the revision petitioner accused against the judgment and order of conviction dated 10.12.2014 passed by the XX ACMM, Bengaluru in C.C. No. 17990 of 2013 and also the judgment and order dated 06.04.2015 passed by the LV1 Addl. Sessions Judge, Bengaluru in Crl. A. No. 71 of 2015. 3. By the judgment and order of conviction, the trial Court convicted the revision petitioner for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to pay fine of Rs.8,05,000/- and in default thereof he shall suffer simple imprisonment for one year. Being aggrieved by the judgment and order of conviction, the revision petitioner herein preferred the appeal before the first appellate Court and the said appeal also came to be dismissed by confirming the judgment and order of conviction passed by the trial Court. Being aggrieved by the same, the revision petitioner is before this Court in this petition. 4. Heard the learned counsel for the revision petitioner accused and also the learned counsel for the respondent complainant. 5. Counsel for the revision petitioner made a submission that because of some difficulties, revision petitioner has not cross-examined PW.1, and therefore, he was deprived of the opportunity of cross-examination of PW.1. He also made a submission that under Section 401 of Cr.P.C, the High Court is having a power to give one more opportunity to the revision petitioner to cross examine PW1 and therefore, prays that the matter be remanded back to the trial Court. 6. Per contra, the learned counsel for respondent made a submission that looking to the materials placed on record, the trial Court gave sufficient opportunity to the revision petitioner. In spite of that, he remained absent and not cross-examined PW.1. Therefore, the matter cannot be remanded back to the trial Court. He also made a submission that looking to the judgment and order of conviction of the trial court as well as judgment passed by the first appellate Court confirming the judgment and order of the trial Court, there are concurrent findings of the Courts below, hence, he submitted that the revision petitioner has not made out a case, and the same has to be dismissed. 7.
7. I have perused the judgment and order of conviction passed by the trial Court and also the judgment passed by the first appellate Court. 8. The brief facts of the case of complainant is that the accused is known to the complainant from his childhood. In the month of December 2011, accused approached the complainant seeking financial assistance of Rs.8,00,000/-. On 12.12.2011 the complainant has paid sum of Rs.8,00,000/- as hand loan to the accused. In order to repay the said amount, the accused has issued two cheques bearing No.304032 dated 14.12.2012 for Rs.4,00,000/- (rupees four lakhs) drawn on I.N.G Vysya Bank, R.T. Nagar Branch, Bengaluru and another cheque bearing No.026819 dated 15.12.2012 for Rs.4,00,000/- (rupees four lakhs) drawn on Union Bank Ltd., R.T. Nagar, Bengaluru in favour of the complainant. When the cheques were presented for encashment, they were dishonored. Hence, the complainant issued a legal notice, but the accused failed to repay the said amount. 9. Looking to the material, the complainant examined himself as PW.1 and he has produced 10 documents in proof of his case. On the side of defence, he neither examined any witness nor produced any documents. 10. Perusing the judgment of trial Court at para 8, it is observed by the trial Court that the complainant filed an affidavit by way of examination in chief, reiterating the complaint averments and he has produced the documents as EX.P.1 to P.10. It is also observed by the trial Court at para 9 of its judgment that in spite of sufficient opportunity was given to the accused, he did not chose to cross-examine PW.1. Therefore, this observation made by the trial Court clearly goes to show that sufficient opportunity has been given to the accused person to cross-examine PW.1. The material also goes to show that it is not the case of accused that, he remained absent continuously after he was examined under Section 313 of Cr.P.C. Therefore, he was very well aware that PW.1 was not cross-examined. At the most, he could have made an application before the trial Court praying to permit him to cross-examine PW.1. He has not filed any such application before the trial Court.
At the most, he could have made an application before the trial Court praying to permit him to cross-examine PW.1. He has not filed any such application before the trial Court. Therefore, ultimately trial Court relying upon the oral evidence of PW.1, so also documentary evidence Ex.P.1 to P.10, allowed the case of complainant and convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act. The material also goes to show that to rebut the presumption raised under the provisions of Negotiable Instruments Act, 1881, there is no rebuttal evidence on the side of accused. Therefore, the trial Court rightly convicted the accused for the said offence. 11. I have also perused the judgment and order passed by the first appellate Court. Looking to the said judgment, the first appellate Court also considered the oral evidence as well as documentary evidence extensively in coming to the right conclusion. There are concurrent findings of the Courts below. Unless and until it is shown by the revision petitioner that there are illegalities committed by the Courts below in appreciating the materials placed before it, in this revision petition the Court cannot interfere into the judgment and orders of the Courts below. Hence, I do not find any illegality in the judgment and orders of the Courts below. No grounds are made out by the revision petitioner herein to interfere in the judgment and order of the Courts below either to modify or set aside the said orders. Accordingly, revision petition is hereby dismissed.