JUDGMENT 1. The accused in CC No.548/2017 on the file of the learned XXV Additional Chief Metropolitan Magistrate at Bengaluru (hereinafter referred to as 'the trial Court' for brevity), is impugning the judgment of conviction and order of sentence dtd. 18/1/2019, convicting him for the offence punishable under Sec. 138 of Negotiable Instrument Act ('NI Act' for short) and sentencing to pay fine of Rs.6, 50, 000.00 and in default, to undergo simple imprisonment for one year, which was confirmed in Crl.A.No.346/2019 on the file of the learned LXII Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as 'the First Appellate Court' for brevity) vide judgment dtd. 12/10/2021. 2. Brief facts of the case are that, the complainant represented by its authorized representative, filed the private complaint in PCR No.15289/2015 against the accused alleging commission of offence punishable under Sec. 138 of NI Act. It is alleged that the complainant- company engaged in the business of supplying fabrication to various industries. Accused No.1 is the proprietary concern and accused No.2 is its proprietor. The complainant was in need of steel plates used as raw materials in manufacturing the fabrication materials and approached the accused for supply of such steel plates. As per the quotation dtd. 23/6/2014, the accused offered to sell the steel plates required by the complainant. The complainant placed order dtd. 28/6/2014 for purchase of salima 4501 material sail make steel plate and on 28/6/2014, the complainant paid an advance amount of Rs.5, 84, 668.00 by transferring the same through RTG's to the account of the accused being 50% of the total consideration amount. But the accused failed to supply the raw materials as agreed. Therefore, the agreement to purchase the steel plates stood cancelled. The accused agreed to refund the amount which was paid as advance. He issued the cheque bearing No.928758 dtd. 15/10/2014, drawn on National Co- operative Bank Limited, Podar Chambers, Store Lane Fort, Mumbai- 400001. When the cheque was presented for encashment, the same was dishonoured as there was insufficient funds. The complainant issued legal notice to accused Nos.1 and 2 informing them regarding dishonour of the cheque and calling upon them to repay the cheque amount. The notice was served on the accused. But inspite of that, the accused had not replied, nor repaid the cheque amount. Thereby, the accused have committed the offence punishable under Sec. 138 of NI Act. The notice was served on the accused. But inspite of that, the accused had not replied, nor repaid the cheque amount. Thereby, the accused have committed the offence punishable under Sec. 138 of NI Act. Accordingly, the complainant requested the trial Court to take cognizance of the offence and to initiate legal action against the accused. 3. The trial Court took cognizance of the offence and registered CC No.548/2017 against the accused for the above said offence. The accused appeared before the trial Court in response to the summons and pleaded not guilty for the accusation made against him. The complainant examined PW-1 and got marked Exs.P1 to 8 in support of his contention. The accused has not led any evidence in support of his defence, except denying the incriminating materials on record. The trial Court after taking into consideration the materials on records that are placed before it, came to the conclusion that the complainant is successful in proving the guilt of the accused for the offence punishable under Sec. 138 of NI Act and accordingly, passed the impugned judgment of conviction and order of sentence as stated above. 4. Being aggrieved by the same, the accused has preferred Crl.A.No.346/2019. The First Appellate Court on re- appreciation of the materials on record, dismissed the appeal by confirming the impugned judgment of conviction and order of sentence passed by the trial Court. 5. Being aggrieved by the same, the accused has preferred this revision petition. 6. Heard Sri Dilip Kumar K., learned counsel for the revision petitioner/accused and Sri Prashanth B.K., learned counsel for the respondent/complainant. Perused the materials including the trial Court records. 7. Learned counsel for the revision petitioner submitted that the accused could not cross-examine PW-1, nor he could lead his evidence in support of his defence. Therefore, the matter is required to be remanded back to the trial Court by affording an opportunity to the accused to cross-examine PW-1 and also to lead evidence, in the interest of justice. Accordingly, he prays for allowing the revision petition. 8. Per contra, learned counsel for the respondent opposing the revision petition submitted that the revision preferred by the accused is misleading one. Infact, the complainant had also preferred Crl.A.No.378/2019 before the First Appellate Court being aggrieved by the sufficiency of sentence imposed on the accused. Accordingly, he prays for allowing the revision petition. 8. Per contra, learned counsel for the respondent opposing the revision petition submitted that the revision preferred by the accused is misleading one. Infact, the complainant had also preferred Crl.A.No.378/2019 before the First Appellate Court being aggrieved by the sufficiency of sentence imposed on the accused. The said criminal appeal came to be allowed by the trial Court and the fine imposed on the accused was enhanced. But there is no reference to filing of Crl.A.378/2019 and allowing of the same by the trial Court in the entire revision petition. There is deliberate suppression of these material facts. When there is no challenge to the judgment of conviction and order of sentence passed in Crl.A.378/2019, the present revision petition is liable to be dismissed in limine. 9. Learned counsel further submitted that an application under Sec. 311 of Cr.PC was filed by the accused before the trial Court, seeking to recall PW-1 for cross-examination. The trial Court passed a detailed order on the said application. The same was not brought to the notice of the Court while filing the revision petition. The trial Court in para Nos.18 to 21 of its judgment explained in detail about the conduct of the accused in protracting the matter. The legal notice issued by the complainant was served on the accused as per Ex.P4. There is no reply by the accused. Since then, he has never taken any defence in the matter. Even till today, the accused has not taken any defence. Under such circumstances, there is no merit in the revision petition and it is to be dismissed as devoid of merits. Accordingly, he prays for dismissing the revision petition. 10. In view of the rival submissions made by learned counsel for both the parties, the point that would arise for my consideration is: "Whether the impugned judgment of conviction and order of sentence passed by the trial Court, which is confirmed by the First Appellate Court suffers from perversity or illegality and calls for interference by this Court?" My answer to the above point is in the 'Negative' for the following; REASONS 11. The accused has preferred this revision petition specifically contending that he was convicted by the trial Court in CC No.548/2017 vide judgment of conviction and order of sentence dtd. The accused has preferred this revision petition specifically contending that he was convicted by the trial Court in CC No.548/2017 vide judgment of conviction and order of sentence dtd. 18/1/2019 and the same was confirmed by the First Appellate Court in Crl.A.No.346/2019 vide judgment dtd. 12/10/2021. The prayer in the revision petition is only to set aside the judgment dtd. 12/10/2021 passed by the First Appellate Court in Crl.A.No.346/2019 and also the judgment of conviction and the order of sentence dtd. 18/1/2019 passed in CC No.548/2017 by the trial Court. The respondent has produced certified copy of the judgment of conviction and order of sentence dtd. 12/10/2021 passed in Crl.A.No.378/2019, according to which, the complainant had preferred the said appeal challenging sufficiency of sentence imposed by the trial Court while convicting the accused for the offence punishable under Sec. 138 of NI Act. The First Appellate Court on re- appreciation of the materials on record found that even though the trial Court was right in convicting the accused, the sentence imposed was not proportionate. Hence the appeal preferred by the complainant was allowed in part, enhancing the fine amount to Rs.8, 09, 250.00. 12. Learned counsel for the accused has not disputed this fact that the complainant had preferred Crl.A.378/2019 and the said appeal came to be allowed in part, modifying the order of sentence by imposing fine of Rs.8, 09, 250.00. There is absolutely no reason as to why there is no reference to the said judgment passed by the First Appellate Court on 12/10/2021 i.e., on the very same day when the impugned judgment in Crl.A.No.346/2019 was passed. According to the learned counsel for the accused, the accused has not preferred any other revision other than the present one. Under such circumstances, it is clear that only the judgment in Crl.A.No.346/2019 was challenged by the accused. But the judgment of conviction and order of sentence of even date passed in Crl.A.No.378/2019 was never challenged by the accused. 13. Even if the revision petition is to be allowed as prayed for by the petitioner, the judgment of conviction and the order of sentence passed in Crl.A.No.378/2019 by the trial Court, convicting the accused for the offence punishable under Sec. 138 of NI Act and sentencing him to pay fine of Rs.8, 09, 250.00 would be in force, as the same was not challenged by the accused till date. Therefore, no purpose would be served even by allowing the present revision petition. 14. It is the contention of the learned counsel for the accused that the accused could not cross-examine PW-1 and lead his evidence before the trial Court and therefore, a reasonable opportunity is to be given by remanding the matter to the trial Court by setting aside the impugned judgment of conviction and order of sentence. As already discussed above, when the accused has not challenged the judgment of conviction and order of sentence passed by the First Appellate Court in Crl.A.No.378/2019, even if, the impugned judgment of conviction and order of sentence passed by the trial Court and by the First Appellate Court in Crl.A.No.346/2019 would not serve any purpose. Moreover, learned counsel for the complainant produced certified copy of the order dtd. 3/1/2019 passed by the trial Court in CC No.548/17 on the application filed by the accused under Sec. 311 of Cr.PC seeking to recall PW-1 for cross- examination. The trial Court after taking into consideration all the materials on record and the conduct of the accused, dismissed the said application. A detailed order came to be passed on 3/1/2019. The trial Court highlighted the conduct of the accused before the trial Court in para Nos.18 to 21 which read as under; "18. Before embarking on other things, I feel it necessary to state the number of adjournments already provided by this court to the accused to proceed with cross examination PW1 has been examined on 21/11/2017, Thereafter the matter posted for further chief examination of PW 1 on 8/2/18, 27/2/18, 26/3/18, 25/4/18 PW 1 has been cross examined partly on 22.10 2018 and in the meanwhile the accused changed his counsel. Since the counsel had appeared on 22/10/18, sought an adjournment for cross examination. Said counsel was accorded with an adjournment. Further on 30/10/2018, another counsel appeared before the court for accused and sought adjournment to cross examine since he has not obtained instructions from the accused. On these dates of hearing the accused was absent and exemption application filed on behalf of the accused. Further the accused was provided with an opportunity to cross examine PW1 on 30/10/18, 6/11/18, 28/11/18, 6/12/18. But, on these dates of hearing another counsel for the accused appeared before the court and filed memo of instructions. On these dates of hearing the accused was absent and exemption application filed on behalf of the accused. Further the accused was provided with an opportunity to cross examine PW1 on 30/10/18, 6/11/18, 28/11/18, 6/12/18. But, on these dates of hearing another counsel for the accused appeared before the court and filed memo of instructions. Despite of this the court provided opportunity to the newly appeared counsel with a direction to proceed for cross examination. But, since the accused counsel did not cross examine Pw1, the stage of cross examination of PW 1 was closed on 6/12/18 and in view of non filing of the vakalath by the newly appointed counsel Sri N.Girish, the court proceeded with the matter and posted the matter for defence evidence by dispensing the recording the statement of the accused u/s.313 Cr.pc.. Subsequently on 10/12/18, the Advocate for the accused Sri N Girish filed 70(2) Cr.p.c application for recall of NBW and also filed memo of undertaking to file the vakalath. Since no vakalath was filed by the counsel only on the grounds of memo of appearance, the application filed ui/s.70(2) CrP.C. was kept in abeyance and the counsel for the accused was directed to keep the accused present on the next date of hearing. But, the stage of defence evidence was kept intact for the reason to provide opportunity to the accused to lead defence evidence. Subsequently on 13/12/18, Advocate Sri.N.G. filed vakalath on behalf of the accused but did not keep the accused present. It is submitted by the counsel for the accused that their defence arguments may be taken as heard since they do not have any defence evidence. Even at this stage, the accused was absent before the court, Hence, after considering this submission made by the Advocate for the accused and after hearing the arguments of the Advocate for the complainant, the matter was posted for judgment. Further on 17/12/18 the case was advanced and accused was present, one new Advocate Sri. K.D.K filed vakalath for the accused along with present application. At the time of submitting the said application, the counsel for the accused submitted that they have served the copy on the other side and the counsel for the complainant have endorsed as "copy received". They have also sent the copy of the application by post to the counsel for the complainant. At the time of submitting the said application, the counsel for the accused submitted that they have served the copy on the other side and the counsel for the complainant have endorsed as "copy received". They have also sent the copy of the application by post to the counsel for the complainant. Hence NBW was recalled and the matter posted for objections of the complainant to the present application, 19. During the Course of arguments, learned counsel for the complainant submits that neither the complainant nor their colleagues have endorsed as "copy received" on the application. The accused has managed to endorse as "copy received" on the application only to misguide the court. The postal cover sent by the accused for the service of copy to the complainant counsel also shows that it is sent to wrong address. Therefore, the accused has resorted to these activities in order to mislead the court 20. On the other hand, the counsel for the accused submits that whatever address they got in the file of the court, they have issued the copy to the said address by post. 21. All the above mentioned contents of the paragraphs clearly go to show that the accused has kept on changing his counsel and kept on taking adjournment on the grounds of his ill health. Till today no latest document is produced by the accused before this court. Learned previous counsel for the accused Sri. N.Girish appeared before this court on 3 to 4 dates of hearing only on the basis of memo of instructions given by the accused. Subsequently on the date of filing of vakalath, this learned Advocate did not keep the accused present and did not proceed with the cross examination of PW 1. Finally previous learned counsel for the accused Sri N. Girish submitted before the court that their defence arguments may be taken as heard as they do not have any defence evidence to be lead. Noting this submission of the learned counsel for the accused, the court proceeded to reserve the matter for judgment. Subsequently, new counsel for the accused Sri.KDK argued before the court that the counsel may come and submit anything before the court but parties instructions is necessary. Noting this submission of the learned counsel for the accused, the court proceeded to reserve the matter for judgment. Subsequently, new counsel for the accused Sri.KDK argued before the court that the counsel may come and submit anything before the court but parties instructions is necessary. But this arguments canvassed by the learned counsel for the accused does not hold water because the accused has continuously remained absent before the court and the counsel submits before the court as per the instructions given by the party himself. If anything has been submitted by the counsel before the court not favourable to him, subsequently by merely changing the counsel, neither the accused nor his newly appointed counsel can take the stand that the counsel may submit anything he wants but the parties interest has to be considered. The previous counsel appointed by the accused had duly filed vakalath and made submissions before the court. Therefore, the submission made by the previous counsel for the accused cannot be just ruled out like this. Already, the court has provided ample and sufficient opportunities to the accused considering his health grounds to proceed with the cross examination. Only taking into consideration the health grounds of the accused, even the date of adjournments were given as per the convenience of the accused since the accused himself submitted before the court that he is undergoing some treatment for mental depression and travels all the way from Mumbai. Despite of this, the accused did not utilize the opportunities provided by the court therefore, if any further opportunity is provided to the accused, it will be abuse of process of law. It appears that the accused is not at all serious in proceeding further with the matter. Therefore, under these circumstances, of the case, the learned counsel for the accused has not at all made any satisfactory submission before the court as to why they should be provided an opportunity and why the stage of the case is to be recalled when posted for judgment Already the matter is reserved for judgment on merits. Hence, in view of this I find no reasons to allow the application filed by the accused to recall PW 1 for further cross examination. Hence, in view of specifically mentioned grounds as stated supra, the application filed by the accused deserves to be rejected on cost. Hence, in view of this I find no reasons to allow the application filed by the accused to recall PW 1 for further cross examination. Hence, in view of specifically mentioned grounds as stated supra, the application filed by the accused deserves to be rejected on cost. Hence, in view of this I answer Point No.1 in the Negative." 15. Bare reading of this portion of the order passed by the trial Court discloses the conduct of the accused in protracting the matter without any valid reasons. It is pertinent to note that till today, the accused has not taken any specific defence to deny the contention of the complaint. 16. The materials on record disclose that the complainant has produced the cheque in question issued by the accused with his signature as per Ex.P1, which was dishonoured as per Ex.P2 for insufficiency of funds. Ex.P3 is the copy of the legal notice got issued by the complainant. Ex.P4 is the letter issued by the postal department to the effect that the postal cover addressed to the accused is served on him on 19/12/2014. Inspite of that, admittedly there is no reply by the accused, nor he has repaid the cheque amount. Ex.P5 is the statement of account maintained by the complainant. Ex.P6 is the purchase order. Ex.P7 is the e-mails exchanged between the parties. All these documents consistently support the contention of the complainant which was never challenged by the accused. 17. Therefore, I am of the opinion that the trial Court was right in convicting the accused which was confirmed by the First Appellate Court. I do not find any reason to interfere with the same. Hence, I answer the above point in the 'Negative' and proceed to pass the following; ORDER The criminal revision petition is dismissed. The amount in deposit, if any, be transmitted to the Trial Court to appropriate towards fine and compensation. Registry is directed to send back the Trial Court records along with copy of this order.