Karnataka High Court
Sri. Sadashiv S/O Baburao Bhovi, vs Smt. Shushilabai W/O Rayappa ... on 13 October, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COU RT OF KARNATAKA
DHARWAD B ENCH
DAT ED THIS THE 13 T H DAY OF OCT OBER, 2020
B EFORE
THE HON'B LE MR. JU ST ICE PRADEEP SINGH YERU R
CRIMINAL REVIS ION PET ITION NO.2284/2011
CRL. RP No.2285/ 2011, CRL. RP No.2286/ 2011,
CRL. RP No.2287/ 2011, CRL. RP No.2288/ 2011,
CRL. RP No.2289/ 2011 & CRL. RP No.2290/ 201 1
BET WEEN:
SRI SADASH IV,S/ O B AB U RAO B HOVI,
AGE : MAJOR, OCC: CONTRACTOR,
R/O OPP. CHANNAGIRI CEMENT FACTORY
FARM HOUSE AT POST:YADWAD,
TALUK GOKAK DISTRICT B ELGAUM
... PET ITIONER
COMMON IN ALL THE CASES
(B Y SRI VITTHAL S.TELI, ADVOCAT E )
AND:
SMT SHU SHILABAI, W/O RAYAPPA
DODDANNAVAR @ DODDAMANI, AGE: MAJOR,
OCC: HOU SEHOLD WORK,R/O LOKAP UR, TALUK
MU DHOL,DIST RICT B AGALKOT
... RESPONDENT
COMMON IN ALL THE CASES
(B Y SRI GIRISH A . YADWAD, ADVOCAT E FOR SRI
V.P.KULKARNI, ADVOCATE)
***
THESE CRIM INAL REVISION PETIT IONS ARE FILED
UNDER SECTION 397 READ WITH SECTION 401 O F
CR.P.C., PRAYING TO SET AS IDE THE COMO N
JUDGMENT DATED 30.0 7.201 1 IN CRIMINAL APPEAL
NOS. 4, 5, 6, 7, 8, 9 AND 10/2011 B Y T HE FAST TRACK
COURT, JAMKHANDI B Y CONFIRMING THE JU DMENT
DATED 09.1 2.201 0 IN CC NO. 36, 38, 40, 42, 44, 46
2
and 677/2008 PA SSED B Y T HE PR L. JMFC, MUDHOL
AND THEREB Y ACQU ITT ED THE PETIT ION ER, ETC.,
THESE PET IT IONS ARE COM ING ON FOR HEAR ING
THIS DAY, THE COU RT MADE T HE FOLLOWING:
ORDER
These revision petitions arise out of a common judgment dated 30 t h July 2011 passed by the Court of Fast Track, Jamkhandi, in Crl. A. Nos. 4, 5, 6, 7, 8, 9 and 10 of 2011, wherein the Appellate Court has dismissed all the seven appeals and confirmed the judgment and order of conviction and sentence dated 8 t h December 2010 and 9 t h December 2010 passed by the Principal JMFC, Mudhol in CC No.36, 38, 40, 42, 44, 46 and 677 of 2008, wherein the learned trial Judge convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act (for short 'NI Act') and sentenced him to under go simple imprisonment for five months and to pay fine of Rs.1,95,000/- in default to pay fine to undergo simple imprisonment for three months and out of the fine amount of Rs.1,95,000/-, a sum of Rs.1,90,000/- is ordered to be payable to the complainant as compensation 3 and remaining Rs.5,000/- is ordered to be transmitted to the account of the State after appeal period is over.
2. Heard Sri Vitthal S. Teli, learned counsel for petitioners and Sri Girish A. Yadwad, Advocate for Sri V.P. Kulkarni, learned counsel for respondents.
3. Revision petitioner and respondent in all these cases are one and the same. Transaction between the parties is one for which seven cheques were issued by revision petitioner to respondent. The learned counsel for petitioner and respondent have addressed their arguments of all the cases together. The learned counsel on both side have addressed common arguments even before the Appellate Court. Since common question is involved, all the petitions are taken up together for disposal.
4. Parties herein shall be referred to as per their ranking before the trial Court. 4
5. Brief facts leading to filing of these revision petitions are as under:
5.1. It is the case of complainant that she is resident of Lokapur. While accused was doing Contract work at Lokapura, he stayed in her house as tenant. There is close relationship between the family of complainant and accused. The husband of complainant was working as Social Welfare Officer and due to his death complainant received about Rs.12 lakhs as terminal benefits by way of PF and Gratuity. Having come to know about the fact that complainant has received terminal benefits, accused taking advantage of the close relationship and confidence reposed by complainant, accused requested complainant for a sum of Rs.11 lakhs as he was under certain financial difficulties.
Considering the financial difficulties complainant gave Rs.11 lakhs to accused.
6. When the complainant demanded refund of the said amount, in discharge of the said legally recoverable debt accused issued number of 5 cheques on different dates towards discharge of said legally recoverable debt. The details of which are as follows:
SL. CHEQUE CHEQUE AMOUNT CC NO CRL.A. NO DATE NO NO.
01. 467508 26.08.07 50,000 36/08 04/11
02. 388131 13.10.07 1,90,000 677/08 05/11 03. 467507 23.08.07 1,00,000 44/08 06/11 04. 388130 18.08.07 2,00,000 42/08 07/11 05. 467520 20.08.07 1,50,000 46/08 08/11 06. 467511 29.08.07 2,15,000 38/07 09/11 07. 388129 19.05.07 2,00,000 40/07 10/11
7. It is the case of complainant that when the aforesaid cheques were presented for encashment by the complainant on different dates mentioned in the above tabular column, the same were returned with an endorsement 'no sufficient funds'. Thereafter, the complainant got issued legal notice calling upon the accused to make payment within 15 days from the date of receipt of notice. Since complainant did not receive any payment from accused and the notice was returned 6 as 'not claimed' by accused, complainant got issued second notice to accused and subsequently, the present complaints came to be filed for the offence punishable under Section 138 of NI Act. After complaint was filed and issuance of the notice to the accused, the accused appeared through his counsel and the plea came to be recorded wherein accused pleaded 'not guilty' and claimed to be tried and accordingly he was tried.
8. In order to prove the guilt of the accused the complainant got herself examined as PW1 and also examined two other witnesses on her behalf as PW2 & PW3 being the Bank Managers of State Bank of India and State Bank of Hyderabad and got marked documents at Ex.P1 to P6. Thereafter statement of accused under Section 313 of Cr.P.C. was recorded, wherein accused denied all the incriminating evidence and he choose to defend his case by examining himself as DW1 and also got marked Ex.D1 to D8 as documents in support of his case.
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9. After hearing the parties, trial Court framed the relevant points for consideration and came to the conclusion that complainant has made out all the ingredients to attract the offence punishable under Section 138 of NI Act and convicted accused for the said offence and sentenced him to under go simple imprisonment for five months and to pay fine of Rs.1,95,000/- in default to pay fine to undergo simple imprisonment for three months and out of the fine amount of Rs.1,95,000/-, a sum of Rs.1,90,000/- was ordered to be payable to complainant as compensation and remaining Rs.5,000/- was ordered to be transmitted to the account of the State after appeal period is over in CC No.36, 38, 40, 42, 44, 46 and 677 of 2008, which were challenged in Crl. A. Nos. 4, 5, 6, 7, 8, 9 and 10 of 2011 before the first Appellate Court and the same came to be dismissed confirming the order of trial Court, which is challenged before this Court in these revision petitions.
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10. Heard Sri Vitthal S.Teli, learned counsel appearing on behalf of accused and Sri Girish A. Yadwad, appearing on behalf of Sri V.P. Kulkarni, learned counsel for complainant, in all these cases.
11. The learned counsel for accused vehemently contended that the judgment and order of conviction and sentence passed by trial Court as well as Appellate Court is opposed to law and facts and circumstance of the case and hence the same is erroneous thereby requires interference at the hands of this Court.
12. Learned counsel further contends that the very fundamental aspect of fulfillment of ingredients of Section 138 of NI Act has not been complied by the complainant as the complainant has not pleaded specific requirement about when the amount was paid to accused and when accused has received the amount from complainant. Therefore, the complainant has failed to discharge the essential burden of proof as provided under the proviso to Section 138 of NI Act.
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13. The learned counsel further contends that complainant has miserably failed to prove the financial capacity and source of income and has not produced any material on record by way of any books of accounts or any such documents to substantiate the aspect of source of income thereby complainant has failed to prove the loan alleged to have been parted to accused. It is further contended by the learned counsel for accused that in non furnishing of such proof with regard to financial capacity of complainant needs to be disbelieved in the statement made by complainant as to the existence of legally recoverable debt, which leads to probable inference and doubtful version putforth by complainant.
14. The learned counsel further contends that complainant has not produced any material with regard to receipt of terminal benefits received due to the death of her husband, which would show her financial capacity and non production of the same leads to inference that complainant has not 10 shown the source of funds for having given the loan amount to accused.
15. It is further contended by the learned counsel that on rebuttal of presumption of the theory put forth by complainant it becomes incumbent upon complainant to prove her case by producing the necessary documents with regard to financial capacity and source of income. With holding of such documents by complainant leads to adverse inference and in the present case, complainant has not produced any material to show that she had financial capacity and source of income.
16. Learned counsel for accused further contends that the onus is heavy on complainant to prove the existence of legally recoverable debt and it cannot be not presumed that the holder of the cheque has established the issuance of cheque is in discharge of debt, which will have to be necessarily proved by the complainant either through oral or 11 documentary evidence, but it has not been done in this case.
17. It is further contended by the learned counsel that the trial Court and the Appellate Court have failed to consider the admission made by complainant with regard to execution of the 'Oppige Patra' and withholding of such 'Oppige Patra' by complainant is fatal to the case of complainant and the Courts below ought to have taken adverse inference against complainant for non-production of the said documents.
18. The learned counsel for accused further contended that the Courts below have failed to consider that the amount so paid was not paid as a Partner or as loan to accused, but it was paid to the workers / coolie for hire on contract and it does not amount to passing of consideration.
19. It is further contended by the learned counsel that in all these cases the complainant has not proved the existence of legally subsisting recoverable debt and accused has placed probable 12 defence and has rebutted the presumption as contemplated under Section 118 and 139 of NI Act. Therefore, the onus shifts on complainant to prove beyond reasonable doubt the existence of legally subsisting recoverable debt, which has not been done in these cases and accused herein has rebutted the presumption cast on him.
20. Therefore, he seeks that all these revision petitions deserve to be allowed and the judgment and order of conviction and sentence passed by the trial Court and confirmed by the Appellate Court requires to be set aside and accused deserves to be acquitted of the charges. On these submissions the learned counsel for the accused sought to allow all the revision petitions.
21. The learned counsel for accused places reliance on the following judgments in support of his case:
(1) M.S.NARAYANA MENON ALIAS MANI vs STATE OF KERALA AND ANOTHER reported in (2006) 6 SCC 39;
13 (2) REVEREND MOTHER MARYKUTTY vs RENI CKOTTARAM AND ANOTHER reported in (2013) 1 SCC 327;
(3) VIJAY vs LAXMAN AND ANOTHER reported in (2013) 3 SCC 86;
(4) BASALINGAPPA vs MUDIB ASAPPA reported in (2019) 5 SCC 418;
(5) S.KAMAKOTI vs I.SARFARAZ NAWAZ reported in 2019 SCC ONLINE KAR 518; (6) KUNDAN LAL R ALLAR AM vs CUSTODIAN, EVACUEE PROPERTY, BOMB AY reported in AIR 1961 SC 1316;
(7) SMT AKHTARI BI vs STATE OF M.P. reported in AIR 1961 SC 1316;
22. Per contra, the learned counsel for complainant contended that the judgment and order of conviction and sentence passed by the trial Court and confirmed by the Appellate Court is in conformity with the provisions of Section 138 NI Act and does not call for interference by this Court. Learned counsel further contends that in all these seven cases the transaction is one and the same, 14 accused had issued in all seven cheques towards the fulfillment of legally recoverable debt.
23. According to the learned counsel for complainant accused in all has received Rs.11 lakhs from the complainant and to repay the said amount he has got issued seven cheques, which are mentioned above, on different dates for different amounts. Learned counsel contends that signature on the cheque and the account of the accused having been maintained in the said bank has not been denied and the same is admitted by accused.
24. The learned counsel further contends that out of seven cheques, three cheques which were issued by accused bearing No.388131 for a sum of Rs.1,90,000; No.388130 for a sum of Rs.2,00,000/- and No.388129 for a sum of Rs.2,00,000/-, has been admitted and in the reply notice sent by accused to complainant he categorically admitted to repay the said amount. Thereby, it is contended by the learned counsel for complainant that once there is admission with 15 regard to payment having been received and issuance of cheque and readiness to make good the cheque amount, complainant has fulfilled the ingredients of Section 138 of NI Act, thereby the accused deserves to be convicted for the offence punishable under Section 138 of NI Act.
25. Learned counsel for the complainant further contends that the main defence taken by accused is that complainant had not produced material document to prove financial capacity and payment of amount to the accused. It is further contended that the defence taken by accused in the reply notice is contrary to the defence taken the accused in his evidence while adducing the evidence as DW1. At one stretch accused admits that there was a Partnership and he owes the three cheque amount totally a sum of Rs.5,90,000/- to complainant and fairly disputes the amount mentioned in other four cheques to complainant. Whereas, in the cross examination it is stated that accused was working as a Contractor and the amount was not paid to accused and it was paid as 16 salary to the workers and accordingly accused has issued three cheques to complainant.
26. It is contended by the learned counsel for complainant that by taking totally 360 degree turn, accused in his evidence has stated that his nephew owned a truck and he wanted to sell the truck to the son of complainant, due to which money was paid to accused and for that purpose three cheques were issued to complainant. The value of contract is Rs.7 lakhs and due to non payment he got issued the cheques to complainant. The learned counsel for complainant further contends that these divergent and inconsistent plea and defence taken by accused, is detrimental to the case of accused because they are contradicting each theory and does not instill any confidence with regard to the statements made by accused.
27. It is further contended that the plea with regard to separate and distinct trials have been conducted by trial Court providing sufficient opportunity to accused to adduce his evidence and 17 cross examine the witness no right of the accused was curbed and the common judgment pronounced by first Appellate Court, does not render the judgment invalid and illegal. It is further contended that both the counsels addressed common arguments in view of the fact that question of law involved in the appeals before the Appellate Court were same and parties and transaction are one and the same. He further contended that first Appellate Court has considered each of the complaints separately and distinctly and has given finding to that effect in its judgment most specifically from Para-17 to 22 of the judgment. Therefore, the common judgment passed by first Appellate Court after consideration of the material and the distinct case of accused, by providing sufficient opportunity to address arguments of each of the case has in no way infringed the opportunity or right of accused. Therefore it is not an illegal and perverse order.
28. Learned counsel for the complainant has further contended that the judgments relied on by 18 learned counsel for accused, are not applicable to the facts and circumstance of the present case though the ratio laid down in those judgments may be right. Hence, on these grounds he seeks for dismissal of these revision petitions and for confirmation of the judgment and order of conviction and sentence of both the Courts below.
29. The learned counsel for complainant has also relied on the decision of the Hon'ble Supreme Court in the case of AMIT KAPOOR vs RAMESH CHANDER AND ANOTHER reported in (2012) 9 SCC 460, to canvas his arguments with regard to powers of this Court under Section 397 of Cr.P.C.
30. Having heard the learned counsel for complainant and accused the point that arise for consideration before this Court are as under:
"(a) Whether the judgment and order of conviction and sentence passed by the trial Court is in accordance with law?
(b) Whether confirmation of the judgment of the trial Court by the first 19 Appellate Court requires any interference by this Court?"
31. It is seen from the records of all these cases that there is no dispute with regard to the friendship and acquaintance of complainant and accused. It is also not in dispute that accused had got issued three cheques as mentioned above and for the sake of clarity three cheques which were issued by the accused are bearing No.388131 for a sum of Rs.1,90,000; No.388130 for a sum of Rs.2,00,000/- and No.388129 for a sum of Rs.2,00,000/-, in favour of complainant. This fact is clearly admitted by accused that he is liable to pay the amount as these amounts was paid by complainant as salary to the workers of accused.
32. This admission of accused emanates from reply notice as well as in the cross examination of PW1 and 2 and his evidence as DW1. It is the defence of accused with regard to remaining four cheques that at no point of time these cheques were issued to complainant and that the amounts 20 mentioned in these four cheques are not borrowed by accused and the complaint against these four cheques ought to have been dismissed by the trial Court.
33. It is the further case of accused that these cheques may have been given to complainant during the Partnership while the accused was working as Contractor and in such business transaction complainant has got possession of these cheques. Strangely, it is noticed from the records and evidence, accused has taken a totally different contention and defence in his own evidence where he has stated that these cheques were issued to the complainant in the sale of truck owned by his nephew, which was to be sold to the son of complainant, for which money was given by complainant to the accused. Since the value of the truck was Rs.7 lakhs which complainant had paid, accused got issued the cheques.
34. This stand taken by the accused is totally different which is contrary to his own reply notice 21 and cross examination, casts a doubt in the minds of this Court and does not infuse confidence on the veracity of the statement made by accused.
35. It is further case of accused that complainant had admitted the execution of 'Oppige Patra', which according to accused complainant has admitted in the cross examination and that affidavit with regard to 'Oppige Patra' is marked as Ex.D1. It is relevant to notice here that the said 'Oppige Patra' has not been produced and so also the consent letter of accused. It is the case of accused that original of 'Oppige Patra' is in the custody and possession of the complainant and complainant ought to have produced the said 'Oppige Patra' to prove her case. When accused is trying to rebut the presumption which is heavily cast on him under the Act, it becomes the duty of accused to produce all such material before the Court and to secure all such material documents or produce oral evidence, to establish such material facts and to confront the said documents only then the onus of proof shifts on the complainant. 22
36. In this aspect, It is necessary to extract the provisions of Section 138 of NI Act, which reads thus :
"DISHONOUR OF CHEQUE FOR INSUFFICIENCY, ETC., OF FUNDS IN THE ACCOUNT. --Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless--
(a) the cheque has been presented to the bank within a period of six months from the date on 23 which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.".
37. It is seen that once the proviso to Section 138 of NI Act is fulfilled the offence under Section 138 of NI Act is made out. Once the offence under Section 138 of NI Act is made out, duty is cast upon the accused to rebut the presumption under Section 139 & 118 of NI Act. It 24 is relevant to refer to these two provisions. Section 139 of NI Act reads thus:
"PRESUMPTION IN FAVOUR OF HOLDER.-
It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."
38. It is important to refer to Section 118 of NI Act, which reads thus:
"PRESUMPTIONS AS TO NEGOTIABLE
INSTRUMENTS.
Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration:- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date:- that every negotiable instrument bearing a date was made or drawn on such date;25
(c) as to time of acceptance: that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer:- that every transfer of a negotiable instrument was made before its naturity;
(e) as to order of indorsements:- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamp:- that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course:-
that the holder of a negotiable instrument is a holder in due course : provided that, where the instrutment has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
39. Presumption under Section 139 and 118 of NI Act, is cast on accused to rebut the same to 26 the contrary. Accused will have to do something more than just mere denial. Suggestion to merely say that there is no financial capacity, that the cheque was not drawn for any legal consideration and that there is no legally subsisting debt or liability, are not the rebuttal of presumption as contemplated under law. It is also to be seen that Section 138 of NI Act, does not say any where with regard to the mention of date and time of drawing of the cheque or issuance of the loan. That is why under the enactment the presumption is provided once the cheque is drawn unless contrary is proved that it is presumed that holder of the cheque has received cheque for the purpose of discharge of whole or any part of debt or other liability.
40. Section 118 of NI Act has clearly stipulated that every negotiable instrument was made or drawn for consideration and made on the date, drawn on such date and that holder of negotiable instrument is an holder in due course. When such heavy presumption is existing under these provisions, the duty and burden that is cast 27 on the accused is heavy to prove contrary to the presumption. It is not that the said presumption cannot be rebutted. When accused raises the probable defence and the facts and circumstance of the case is able to make out that no such amount was ever due to the complainant and on satisfaction of such aspect, defence raised is worthy of scrutiny and verification, then the burden shifts on the complainant to prove or counter such rebuttal.
41. In the present case on hand, accused has admitted issuance of three cheques and categorically made a statement that he is ready and willing to pay the said amount. With regard to other four cheques accused has not laid down the defence as to how these cheques were taken and could have gone into the hands of complainant during the business transaction between him and complainant. On the contrary, it is the case of accused in his evidence that there was no business transaction, it was due to the selling of a truck belonging to his nephew, these cheques were given 28 to complainant. These contrary stands taken by accused does not lay down a straight line of theory of argument of accused.
42. On the other hand it is the case of complainant that she has secured the amount pursuant to the death of her husband by way of terminal benefits from PF and Gratuity from the Government and being widow and having acquaintance with accused has given the amount to accused and taking advantage of the situation of complainant, accused has defaulted on the payment despite issuance of cheque, after having admitted to pay the three cheques mentioned above.
43. The arguments of learned counsel with regard to common judgment passed by first Appellate Court, does not prove any serious lacuna or infirmity in the power exercised by the Appellate Court while considering all the case together. However, the Appellate Court has separately and distinctly laid down the facts and circumstance of 29 each of the cases and common judgment has been passed, in view of filing of seven cases, which arise of one transaction between the same parties. Learned counsel has not pointed out any law which bars the appellate Court to pass common judgment in all the cases, It is not the case of accused that no separate trial was conducted as contemplated under Section 218 of Cr.P.C.
44. With regard to other serious contentions of the learned counsel for accused that the complainant has not the date of issuance of the cheques there is no serious infirmity in not stating specific date on which loan amount was paid by complainant, but it is stated to have been given that pursuant to the receipt of Rs.12 lakhs from the Government towards PF and Gratuity on account of death of her husband, she has parted with the amount of Rs.11 lakhs on different period of time and the accused has accordingly issued different cheques over period of time bearing different dates.
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45. In the facts and circumstance of present case, it is not disputed by accused that the cheques have been issued to complainant. When there is a clear admission by accused with regard to issuance of cheques and signature on cheques and payment of amount being admitted in the reply notice as well as in the evidence and in the course of arguments before this Court, the question of shifting onus of proof to the complainant to prove the financial capacity and source of income, does not arise at all.
46. Further, the aspect which is important in the present set of cases is that accused has not established before this Court as to what is palpable error, non-compliance of law, whether the decision is completely erroneous and the orders of the Courts below are capricious and illegal. The accused has not been able to pin point anything material that is illegal or perverse in the order passed by the Courts below. Therefore, in my considered opinion, accused has failed to make out a ground for interference by this Court under the 31 revisional jurisdiction to correct any perversity, illegality or propriety in the judgment and order of conviction and sentence passed by the Courts below.
47. With regard to judgments relied on by the learned counsel for accused as stated earlier, the principles and the ratio laid down by the Hon'ble Supreme Court is not in dispute, but the said cases relied on by the learned counsel for accused is not applicable to the facts and circumstance of the present case, as the onus of proving would shift to the complainant at the cost of repetition, only when the accused makes out a case and raises probable defence to dislodge the case of complainant thereby making the complainant to place before this Court further material to satisfy the rebuttal of the case.
48. In the present case accused has not made out any such rebuttal to shift the onus of proving on the complainant. Further, once the defence taken by the learned counsel for accused 32 with regard to 'Oppige Patra', which has been admitted in one of the affidavit filed by accused and marked as Ex.D1, would be of no assistance to accused as the said 'Oppige Patra' is not produced before the trial Court and when such document is not before Court, it cannot be said that it has been accepted and admitted by complainant.
49. Therefore, under the facts and circumstance of the case and the reasons stated above, I do not find any reason to interfere with the judgment and order of conviction and sentence passed by the trial Court and up held by the Hon'ble Apex Court. Accordingly Point No.1 is answered in the affirmative and Point No.2 is also answered in the affirmative as no grounds are made out for any interference of the orders of Court below. Accordingly, I pass the following order:
ORDER (1) The revision petitions are dismissed.; (2) The judgment and order of conviction and sentence passed by the trial Court and 33 confirmed by the first Appellate Court in all these cases are up held.;
(3) With regard to Crl.R P No.2284/2011, wherein the judgment of the trial Court is modified to the effect that the accused is sentenced to pay fine of Rs.1,95,000/- in default to pay fine to undergo simple imprisonment for a period of three months.
Out of the said fine amount, a sum of
Rs.1,90,000/- shall be paid to the
complainant as compensation and
remaining R s.5,000/- shall be remitted to the account of the State.
(4) The only modification made hereinabove is with effect to simple imprisonment of five months, which was imposed on the accused by the trial Court is set aside. This modification is made in view of the mitigating fact that the accused is aged more than 65 years and it is submitted that he is getting treatment for Cancer and 34 under such circumstance in view of the sentencing policy, the above modification is made;
(5) It is further made clear that any amount in deposit either before this Court or first Appellate Court or trial Court, the complainant shall be entitled to withdraw the same;
(6) Considering the fact that these revision petitions are of the year 2011 and the complaint having been filed in the year 2008, accused - revision petitioners are directed to pay the remaining balance amount within a period of two months from today.
Sd/-
JUDGE VK