Karnataka High Court
Shri Tukaram Satyappa Pawar vs The Gajanan Souhard Credit Sahakari Ltd on 21 June, 2011
Author: K.Govindarajulu
Bench: K.Govindarajulu
IN THE HIGH COURT OF KARNATAKA, CIRCUIT BENC oH
AT DHARWAD
BEFORE
JUSTICE ROG OVI ND feast
CRL. REVISION PE TTION. NO, 46713008
BETWEEN
Shri. Tukaram Satyvappa Pawar,
Age: 30 YEARS, R/o. Ankle,
Tq: Hukkert, Dist: Beloaw
PETITIONER
(By Sri. T.M Nadal, Ads POCi tet a
Sri Man unah sieied, MM dyocatel --
AND:
RESPONDENT
ul, Advocate)
2RP 1s ited under Section
to set aside the Jucgemen at
é ihe e TE Add! isd., Be
firming the judgment anid ¢
odused by.tt the JMPC.,, Sankeshwar in C.C.No.<
Shis CRL.RP coming on for final hearing this day, the
wt passed the iollowing:
1. The accused in €.C. No. 576/04 on.the file of
JM. F.C. Sankeshwar, is the revision petitioner: he cein.
The parties would be referre J accordisig' tothet. status ;
before the Magistrate Court, for convenience.
2. The case of the complainant is th al it is a
Credit Co-Operative Bocitty registered under the Co-
Operative Societies Act. "lt is further contended that the
accused has borrowed | a su m "of "Rs .55,000/- for his
business agresing 'o repay with 'interest. While so, on
610.2002 the aecused ? ias executed necessary documents
and at the end 'of Augtist st £2004, the accused was due in a
of Rs.63,411/ - to the Society. After many reminders
he accuse d'has handed over a cheque bearing no. 047855
rons BOM té- drawn on Union Bank of India.
2. {t is the further case of the complainant that
-the said cheque was presented for encashment. but it
-returned unpaid. So, a notice datec| 04.09.2004 is issued,
there is no reply, so, the complainant contends an offence
PS 138 of No. Act.
4. The presence of the accused. is secured.
Learned Magistrate has recorded the evidence; PW. 1 and 2
are examined, FEx.P.1 to 6 are, marked: D.W: examined, is
the accused, As against the.case of the complainant of
loan being borrowed the amousitais taken after reminder
the accused has issued a cheque for Rs.63,411/-, the
defence is a totai denial by the accused.
So hess ned Magistrate 'has believed the case of the
complainant, corivicted.. "the accused, the same is
challenged "in Appeat No. 140/06 on the file of Additional
. BI
Dist. Ge Sessions Ju dee , Beleaum. Learned Sessions Judge
! ge & Ss
RAS CU nfi rm ned the finding of the learned Magistrate.
&. Learned Advocate for the accused submits that
"the-complaint is filled by a Co-Operative Society. The
Secretary should be autherised. No such material is
Mie
ode.
placed before the JMFC. So, the principles enun clated by
this Court in the case of Om Shakthi SC/Si finvority
Credit Co-Operative Society Lid., Vs. Venkatesh ibk
$
AR. 5126) is attracted and complaint self is, not tenable. --
It is also contended that when tke accused has detried. the
entire transaction, the complainant has.te-prove ine same
in accordance with law. Though. the learned.Advocate for
pes
po,
Fit
en)
bet
jeret
roan
Kt
on
pol
the complainant has agreed to produce. authorisatl
the earlier date.of hearing, till today, application 1s not filed
while producing the .same, se, the action of the
complainant. would -nrobabalise that the proceedings
initiated is notin accordance with law.
7- in reply learned Advocate for the com piainant
siubmit that in the facts of the case the total denial of the
complainant is analysed by the learned
Not
Rt
Magistrate while deciding the subject at point no. 3.
only, D.W.2 has denied the issue of cheque the learned
Magistrate has found that the cheque book is issued by
wx
PIW.2 and the signature of the accused is admitted
by P.W.2-Bank Manager. This cuts the case of the
to its root. Secondly there is a concu fre "nt "finding:
Thirdly, the so-called objectiorr in "regard io" the,
authorisation is of little essistance, as scene
the criteria, it is the justice the at 2S the eriterie, with a memo
a resolution is producet,
8. In the light-of the: AnOVE: care fu lly considered
the reasoning the weaned : Magistrate a portion of
Bi and to tae conduct of the accused is
paragraph 14 in'
found, it re acs as it fol OWS:
£4. Point Ne. She Tis point is also to be proved by the
plaimant The de fence of the dejence counsel is that
waa
"the -chegue was mot issued by tte accused and the
"signaiuge Gn the said cheque Ex P-! is not the signature
So tae fa Shoapes to od wp ong ho oy eye rinser cae et a 28 ey wenn tiEs ne Pye
"oF the aecused and the aecused is not haveig GaPFA
esiiwar and he Bas
account in Union Bark of [edie Sank
rot issued the cheque anc the amount! which has heen
2 i
claimed by TAG £ 'Onl fini wos nol due as on tal date.
Bui if is very pertinent to noe treat as aiready discussed
po: ; ifogdt eet eyfosgaty sped fe
boas ele He Compl uidiHl i
in point SN
issue OF CHegite faweares Mle dischad
DUPGGHAAITS OFF TAG Gecusee]
i
to disprove that faci The evidence adduced, py tile
cfexce is onby denial of file cantoleie) Gverinieris 2k
which are imerked o~ but if is"
P_foaoat orty contain? pe x
me
ae
=
on a se a re rs ie i re on en ues Pe is hon Pi ify srepetpeesrh Fax iv er ppthiatfc bee PIG COWS, DME fA Amere Reis 4 and in the course of erass-examinahen Of GCCUSEE has specifically: admitied ihe: the meame oF accused Is Power and He.
has also specitically Pukarum & admitted edt here ES. He HAP DCPSOF by saicl meamtie. Though ft hasbeen. specifi fat he is Bevan.
be. decaunt in linion Bank of fnelict, meg . . . © i ce fom SOURS HWE, - ger Ue aeccusect PES #701 mice wifes fee te remy om & , te .
as, ct a _, i f cif Alepiahecactesgteep fees shy dyes payee Beni af tacdia Sankesiwar branch. fe He. pou : 7 Bo: an ae rye a ep es fine weeaun! of the accused is 7394. By perusing 2 ' : + Pod CHEGHE, TH Was PS SHed bears the same account number /394 of Cinion Bunk of india, and if really the accused is not having the accor : t f ef oto ppeves eh etek weed FROTAY OF aly Poof fopececy any contended by the accused counsel P.W-2 could heave heen stated tat fact that the accused 18 Mol having Poli? oe fhe fe fPET Leis speci flealhy stated fhe gecounl supaber cry ; i ify raf * « + oe eet t "3 a : hewn . and that tallles with Ex.P-i entry and he has aise, ; fo, fod oy dacs specifically stated thal tlle said chequ fhe complainant bank for encashiment anc. fe issued ihe endorsement as per Ex. P-2. i specifically stated that £x.P-2 nas peen mentioned jor LHGHON dnsufhelent funds" fheugh fl the OF OSS CLE gheey pppspey seed gueseeerece fd Eb eas ne oof 5 x % ; pe ie accused counsel has sugeested to P Weg raeah (here is fet i ; sod tag the tye esl AO aCCOUNL with respect to th eC CUSEM (1 their hawk, ve has speclfically deniea titel suggestion ei specifically admitted that there. is a aceount of the accused fi Their inion and as well as if fie Cross pics elewtly established the accused Is account ia ie Cathar Bank Of fede, OF : eaed Pow FY nn Se ee rond Ex P-f is rela fee fo (Hat aceount oeneys wtaalished principles of law thar ite burden is oupor tre uccused lo disprove prin facie | . } 4 ee ee ee le ited 43 He rE plausible CORP GF] in re ~ 2 : if f * i discharge feng? Olercder. PRE GCCHSOd do disprave to suffielent contents of tie complaint or averments of ihe complaint ot fene ther the J od pape wiages fia? fay f osheeseytse: fear SEEPLS whe: dag a widen of proving if vine of cheque for ary debi o1 liability is on he accused, mere deniae of a VECIiFHs Oy gre HOP Si a fa the notice in reply moti > shufhtie é i fos eee burden of proof on the complainant fre aecus:
prave in rial by leading cogent and.accept pible that there no legal depub or Ligbilite "ened EES f dow ATA a dec ishon F partes ip principle has been kk AIR 200] Supreme Cour , 2805, And an ty aiso. ep Shoes the ceper ffse ff well established PrNCIp Hes of law (hel the CONPE ES 10 ralse The presumption ap eras ahah cheque has been deawn jor discharge "af ik bility ob drawer, onl ce: Had iO be the accused olemetionds nol sufficient proof oF explancitor is, very nee olad feily fact ras also Sourt ia a decision reported » Hon bie Ap in ALR OUGT Suproiie. Court page 3897, By considering Hrese priate iptes § fered dow n by the Hon 'ble Appex Court, y onthe accused to prove that the cheque was nokissued lowards (ie discharge ef legal debt and 'Habilin and he hes fo establish the fac! thet there was wads i fis account af the time of (he cheque plicit } g presented far epccesitine rl.
9. The learned Magistrate has gone in depth a 4 » principles of Sec, 115 of the Evidence Act also. 9
complainant would probabilise authorisation. to. Mle the complaint. This material produced comply. the principles in Om Shakthi SC/ST & Minorities Credit, Co-Operative - SOCIEIY S Case, 10, One more argument of the learned.Advocate for the accused is that autherizatidn is produced for the first time the said authorisation. is a quéstion of fact and the finding from the léarned Magistrate. This could have been done by a € > Court ifit was an appeal, but the case is heard by the Court as a revision. Revisional Court looks to the jegelit tv so tested with the vardstick ol appreciation of 'the material by the Revisional Court, this Subn aisston is rejected. di... The analysis of the learned Magistrate would probabalise that the defence of the accused is a total . deviial and it is not a bellevable one, there 18 no reason to interfere with the finding recorded by the Magistrate be Ineo eet confirmed by the District Judge, so, there is no. merit i ihe revision. Revision is dismissed. 12 After dic tating the above. ord en, learned . Advocate for the accused submits that 'a Feaso nable fam e- be granted to pay the m oney-gn d the Court need not award corporeal punishment, Lear nied Magistr: ate has sentenced the accused to pay RS 80, 008/ : ow ~The sénience to that extent is conlirmed. [ft he vac oon d pays the entire amount of Rs.80,000/- w it bin i x nor th 5 'from today. On the failure to pay the said oun, the punishment xed by JMFC would: revive aut toniativaly So, the revision is allowed in part, onlyi in | regard fom modifica ation of sentence. Sd/-
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