Karnataka High Court
William Rebello vs Devi Prasad Shetty on 6 April, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.273/2022
BETWEEN:
WILLIAM REBELLO,
AGED ABOUT 46 YEARS,
S/O LATE HERRIS LEO REBELLO,
R/AT FR. MULLER'S NEST,
VALENCIA, KANKANADY POST,
MANGALORE-575002. ...PETITIONER
(BY MS. LOLITHA, ADVOCTE FOR
SRI DILRAJ JUDE ROHIT SEQUEIRA, ADVOCATE)
AND:
DEVI PRASAD SHETTY,
S/O M.J. SHETTY,
AGED ABOUT 46 YEARS,
R/AT AMBA SHREE,
KOLNADU BALIKE HOUSE,
HALEANGA, PANJIMOGERU,
KULOOR, MANGALORE-575013. ...RESPONDENT
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTIONS 397 READ WITH 401 OF CR.P.C. PRAYING TO SET
ASIDE THE JUDGMENT AND SENTENCE DATED 09.09.2019
PASSED BY THE HONBLE JMFC V COURT AT MANGALURU IN
C.C.NO.719/2016 FOR THE OFFENCE PUNISHABLE UNDER
SECTION 138 OF NI ACT 1881.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This matter is listed for admission today along with I.A.No.2/2022 for suspension of sentence. Heard the learned counsel for the petitioner.
2. The factual matrix of the case of the respondent/complainant before the Trial Court is that on 18.07.2014, the petitioner/accused approached the complainant for hand loan of Rs.3,50,000/- promising to repay the said amount within six months. In order to discharge the said liability, the accused had issued the cheque for Rs.3,50,000/- on 28.06.2016. When the cheque was presented, the same was returned with an endorsement "exceeds arrangement". Hence, the legal notice was issued and no reply was given. Hence, the complaint was filed and cognizance was taken and the complainant in order to prove his case, examined himself as P.W.1 and got marked the documents at Exs.P.1 to 8. On the other hand, the petitioner has not led any defence evidence and only he has cross-examined P.W.1. The Trial Court after considering both oral and documentary evidence placed on record, convicted the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered to 3 pay a fine of Rs.3,55,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. Being aggrieved by the judgment of conviction and sentence, an appeal is filed in Crl.A.No.164/2019. The Appellate Court, on re- appreciation of the material available on record, dismissed the appeal. Hence, the present revision petition is filed before this Court.
3. The learned counsel for the petitioner would submit that both the Courts failed to consider the material available on record. The very contention of the learned counsel for the petitioner before this Court is that at the earliest point of time, the petitioner was not conveyed about the dishonour of the cheque issued by them towards the payment to be made by them to the respondent. By suppressing the fact of dishonour of the cheque, the complainant has seen to it that the petitioner is kept in dark and thereafter once again presented the cheque and later filed the complaint. The learned counsel submits that both the Courts have not properly evaluated the evidence. Hence, it requires interference of this Court.
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4. Having heard the learned counsel for the petitioner and also on perusal of the grounds urged in the revision petition, the Trial Court while considering the case of the complainant, taken note of the evidence of P.W.1 and also the documentary evidence. No doubt, P.W.1 was cross-examined before the Trial Court. But in the cross-examination of P.W.1, only suggestion was made that there was no any transaction between the complainant and the petitioner with regard to the real estate and suggestion was made that the blank cheque was misused by the complainant. It is suggested that even though reply was given, he has not produced the same before the Court and the said suggestion was denied. The Trial Court taking note of the suggestion comes to the conclusion that if really the accused had given the reply, he would have produced the same before the Court. The very defence of the accused is that by misusing the signed blank cheque, the complainant has filed a false complaint. The Trial Court has taken note of that if the cheque was misused, no complaint was given and he would have approached the police for misusing of the cheque and no complaint is given. No reply was given and no defence was set out in the reply and having considered this material on record, the Trial Court not 5 accepted the defence of the petitioner in coming to the conclusion that he has not raised any probable defence to rebut the statutory presumption. The fact that the cheque was issued by the petitioner is not disputed and the only contention is that the cheque was misused and in order to prove the same, the petitioner has not entered the witness box and not led any defence evidence except cross-examining P.W.1 and P.W.1 also not effectively cross-examined regarding misuse of the cheque. Hence, the Trial Court accepted the evidence of the complainant.
5. The Appellate Court on re-appreciation of the material available on record, in paragraph No.15 taken note of that the accused has not disputed about the service of legal notice marked as Ex.P.3. Though, it is contended in the cross- examination of P.W.1 that the accused has given reply to the said notice, but the copy of the same has not been produced. The non-production of the reply notice leads to draw an adverse inference and hence the Appellate Court comes to the conclusion that the accused has no specific defence and further observed that nothing has been elicited during the cross-examination of P.W.1. It is also observed that nothing has been brought on record by the accused to disbelieve the case of the complainant. 6 The Appellate Court has taken note of the evidence of P.W.1 as well as the documentary evidence and the Trial Court also drawn the presumption in paragraph No.22 of the judgment and the Appellate Court on re-appreciation of the evidence, in paragraph No.15 taken note of that no reply was given and if reply was given, ought to have produced the same and only belatedly took the defence that the cheque was misused and how the cheque had gone to the hands of the complainant, nothing has been elicited in the cross-examination of P.W.1. Hence, I do not find any ground to admit the petition and in order to consider the revisional jurisdiction, nothing is found regarding any perversity in the finding of the Trial Court and the Appellate Court.
6. In view of the discussions made above, I pass the following:
ORDER The petition is dismissed.
Sd/-
JUDGE MD