Karnataka High Court
Ismail M Nadaf R/At Aradivwad Bosto ... vs Shankar S/O Veerappa Hemadri on 12 July, 2010
Author: H.S.Kempanna
Bench: H.S.Kempanna
mi- IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DI-EARWAD DATED TI-HS THE 12TH DAY or JULY, 2010 BEFORE THE HONBLE MR.JUsTIcE; H. s. KEMPANN.A._ ~ CRL.RP.2339/2009 A/w. MISC.CRL.NO.165i3.§L@(j_'3; or _ Between: Sri. Ismail M. Nadaf, Aged about 38 years, R/ at Aradiwada, Bosto Hospital Back Side, Post Condolium, GOA. 3 v Petitioner (By Sri. Mrutyunjay Tata Batigi, Advocate) ~ Arid: Sri. Shanl<:a1*"S /, o L ''Veera:.ppa''iv£e'madri','" ' "0 Aged abouit 40 yea:-_s,H 7 V ' R/at Jain i1?eth,'Baga1k"oteg C/0. Sri. T.ViS1:rpur1:nat1':1',i_ " .~ Opp: S.M.Dar'1dintHosipital, Area, Bagalkot_€- " ' . 1' it it :Respondent V in xThis"'iiCr1i.ViRE'. is filed under Section 397/(1) R/W. Section 401 ,by'v._Vthe"acfvocate for the petitioner seeking to set aside the O1"Ci€1'~._'- pasvsetdi the Fast Track Court No.11, Bagalkot Cr1.'a.N'o.'121'/2008:, dated 28.04.2009 and the order of conviction passed' by the Iifid Addl. JMFC, Bagalkot in C.C.No.1632/2006 dated .01.12.24'008-Aundier Section 138 of the N.I.Act and acquit the present . petitioner' byialiowing the present Criminal Revision Petition. V ii'iI'his petition coming on for orders this day, Court made the f o liogwi-1';-gr ORDER
This revision petition is directed against the judgment dated 28.04.2009 passed in Cri.A.No.121/2008 by the Fast mrasa/x.A.,,..,. .. .
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2006 the accused approached the complainant andpiissued a Cheque bearing No.'760372, dated 16.,r:;{i';'2o'Q-aj'.:-,__f&n; Rs.1,50,000/-- drawn on Vijaya Bank Branch;''Ba:g.a.1ikot.--Awhen , he presented the said cheque for=__encas};1mentiit-hiroiughighis banker namely Corporation Bank, Bagalikot was dishonored with an intiniiatiori funds in the account of the accused theiichieque of the accused was dishonored, the same to the accused. Ac;euised'carne to on 23.02.2006 and at that timeéii another cheque bearing No.7603:v'7 and he promised that he will funds for honor of the said cheque_within'-31+ days.'gTh'ecomplainant presented the cheque for thiroughihis banker namely Corporation Bank, 'on 25.02.2006. But again the cheque was returned withfgut being honoured for insufficiency of funds. ' i7I'.hereforeiii't_he complainant got issued a legal notice dated I »0_8.0i3I2¢006 calling upon the accused to make arrangement for
--..i.'th(-jgpaymfint of cheque amount. On receipt of the said notice accused replied by his letter dated 19.03.2006 that he wouid make arrangement for the funds by 15.04.2006 and requested not to proceed against him under law. The 5Y\.r~v//4 .r'u....'m.w'wwiWmmm Ww;;,,,. .
_4c complainant waited till 15.04.2006 and when the accuse.dlfailed to make payment as promised he was constrained"toV*~tile:_.the complaint before the Court on 24.04.2006.
5. The learned trail oni"receipt".iof_.vit'he complaint took cognizance offie"11C_\e~a11iegé€Viiiia1*1d: after' recording the sworn sta;temente.--<).t:"'the"--~.eompliairian.t:§ registered the case and issued After service of summons the accused the preliminary stages were read over and explained___to pleaded not guitly but claimed to be - tried, _» it ' 1 67 thetfial7.the--"complainant got examined himself '"~a_s Ea.nd__ gotiim"-rlied 6 documents which are marked as iW.Ex.»l5-" l 'Thereafter the statement of accused was recorded under"'liSectioirif_ 313 Cr.P.C. In his statement he admitted the 'entire 'incriminating evidence and admitted that he has not i.r'epaid«.._the cheque amount. He did not choose to lead any 'Cevidence on his side.
7'. Thereafter, the learned trial magistrate on hearing the learned counsel for the respective parties and on going "N-/"
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through the evidence and documents placed on record became to the conclusion that the complainant has against the accused and accordingly he conv.i-c-t.e_c_lfthe..:accused.. for the offence punishable under Siectionig sentenced him to undergo simple' irnprisonmentfoir six nionths", and to pay a fine of Rs.1,60,000 ._
8. Being aggrieved' of of conviction and Sentence the accused"pife'fer*'ed,Crl. E21/2008 before the Fast 'l'rac_.l<:--e(i3o"u;r€jtiV%I:I at_i3agalko't.:fg' . i iiii "*1'l1§:ivi_Appetil'at:§§,Qcurti_ionappearance of the parties and the learned respective parties and on going through' thei""rec'ords_ icailledi for in the case held that the has prov'--e--d'ihis case that the accused has issued i_i;'e.g,i EX.P~1 and PM2 for discharging the loan which heibhad ayaiiijedli from the complainant, he has not made 'arrangements for payment of the said amount in his bank when the cheque has been presented for encashement. ..f}\cc§ordingly relying upon the admission given by him in his hgsitiatemerit the appellate Court dismissed the appeal confirming the judgment of conviction and sentence passed against the appellant by the trial Court.
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10. Being aggrieved of the said ju<..ig,1'n(-rm c:1'.e0~riVi.(:tio11 and sentence, the petitioner has come up in__;t.ihis«..i_'R.gVisi_on Petition.
11. The learned Counsel for the',}ei«i1icii11'o.riguiorriitted when the matter had come up beforethis.(.'ic>u1j1:..?:;1i:20.04.2010 the petitioner had agreed to an2o't:_nt"A in this' case in three instailmeiits thei're's'p:(jnd"t:1'1;fct':ii'ii§3la'iinant at the rate of Rs.50,000/-- each'; day he paid Rs.50,000 / -- to respdndienti .i;;i';:-{'_§'iia:n z.-acknowledged. He had the next mstallment of Rs.50,0C:;(_j/-.' and the i')éiié--iH('.(_' amount will be paid by He furt}'1t--;- SHi'31'12iUCd that the petitio:-gjer has notpioimplied with the Ll11£i('1'{E.1ix'iI'I__t2; he had given 2 before thiapcourt in making payment. of me i.">alaii<:e amount. that Court may proc'c::d an pasas order on On the other hand the 1ea:11*m::ri ('(_)t1l1.'-3C1 for the iicomplainaiit submitted that the impugn<~<'§ (}1"(i('1"S oi' the Court having regard to the admissicsii ;_{iven by the Lpetitioner/accused does not call for i11i,€?I'iV(.'i'('1'](ft', He-wicre there is no merit in the petition and as he has eulm Hut complied with V wwm {¢9:'w)"rr'/-v///A-\ .
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the undertaking given before this Court, 111:: pm it ion of merits and hence it be dismissed.
13. A perusal of the orders of the (s.'ofo.~;V'--:--. b that the accused has issued the cheqtiesi to the complainant towards the Vd'is4charge_ of lo;-i he had availed from the comp1ai'i1.ah1,. [)L,ii3*ii-1_§'ti'tvic-2 igjial he has admitted the amount thatzhe had_itak._t:rli"i7ro1i-1 Elle to-omplainant and cheques which he had isvstjedi to\t:ai4iig"_~.is}-iv pzzwiiqent of the said amount.
14.' iiii on basis of [lac evidence and the doculri-1ei"i«tsVhave'he_ldu.that..=the compleiinam has proved his Case. Ftirthenthe accused'/"petitioner e1d1'nil_1i1'1;_»; his liability has .paid..'the ;;3.mo._unt ofR's;5'0,000/-- to the crm"ipl:..:inant before this V'-V.Courlt:VfI'i:i»s'lconduct of the accused gone to wow that he is acqt1ie'sced"o'f.ilthe allegations made 91§__{;"1iIi>;l him by the hcomplainant.
V '"15. In View of the admission of ll"!-1' ;m't1s<..rc.l/petitioner his conduct in making payment of R&§.i/)U,i'.l(')O_"- before this
7.Court and as he has not placed am <_~<.mm:1 evidence to disbelieve the case of the complainant' I do not {ind any mu/' »;~,,,,,.,. ..
"gm justifiable reasons to interfere with the concurrent findings of the Courts below. Accordingly, I proceed to pass the following:
ORDER The revision petition is dismissed andficonseqiicntiy".é MisC.Cr1.No.16586/2009 is dismissed.;~~ - ié .'Vé%f\?':l\W V *7 "
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