M. Madappa vs D.Y. Ravishankar

Mr. Budihal R.B, J.—This revision petition is preferred by the petitioner-accused being aggrieved by the judgment and order of conviction dated 2.3.2010 passed by the JMFC, Davanagere in C.C. No. 2246/2009 (Old No. 1317/2007) and also the judgment and order dated 3.9.2010 passed by the First Additional District and Sessions Judge, Davanagere in Criminal Appeal No. 68/2010. The trial Court, by its judgment, convicted the revision petitioner accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

Brief Facts leading to the filing of the complaint before the trial Court are that the petitioner-accused was the friend of respondent-complainant. As the petitioner-accused was in need of money to meet his urgent financial needs, approached the respondent-complainant and requested for a hand loan of Rs. 1,75,000/-. The complainant gave Rs. 1,75,000/- to the petitioner-accused on 15.11.2006. The petitioner promised to repay the said amount with interest at 18% p.a. within short period. But the petitioner failed to repay the said amount. Even after repeated requests and demands made by the respondent-complainant, the petitioner-accused issued a cheque in favour of the respondent dated 06.02.2007, bearing No. 473578 for Rs. 1,75,000/- to discharge his debt, and the respondent-complainant presented the said cheque for encashment on dated 07.02.2007 through his banker-Chithradurga Pragathi Gramina Bank P.J. Extension Branch Davanagere. The said cheque, when presented for encashment, returned with endorsement "Funds Insufficient".

Thereafter, the trial Court took cognizance of the offence. Evidence of the complainant as well as accused was recorded. On the side of the complainant, the complainant himself got examined as P.W. 1 and he got marked eight documents as Exs P.1 to 8. On the side of the accused, he himself got examined as D.W. 1 and he has not produced any documents. The trial Court, ultimately and, after considering the materials, both oral and documentary, convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

Being aggrieved by the judgment and order of conviction passed by the trial Court, the appellant accused preferred an appeal before the first appellate Court and the first appellate Court also after re-appreciating the materials, dismissed the appeal confirming the judgment and order of conviction passed by the trial Court. Hence, the revision petitioner is before this Court challenging the judgment and order of the Courts below.

The revision petitioner and the learned Counsel appearing for the revision petitioner both are nor present. There is no representation. On 26.6.2015 itself, this Court passed an order that even after five years from the date of filing this revision petition, the Counsel is not coming forward to argue the matter. However, as a last opportunity, the matter was ordered to be listed on 8.7.2015. Thereafter also, three times, the matter was listed. Even then, the revision petitioner and the learned Counsel for the revision petitioner has not turned up and even today also, there is no representation. Since the matter is pending from the year 2010 and as the learned Counsel for the respondent is present and submitted that he is ready to argue the matter, I have heard the arguments of the learned Counsel on the respondent side.

I have perused the grounds urged in the revision petition, the judgment and order passed by the trial Court convicting the accused so also perused the judgment and order passed by the first appellate Court dismissing the appeal and confirming the judgment of the trial Court.

Looking to the materials placed on record, though it is contended by the revision petitioner-accused that he borrowed Rs. 3.50,000/- from the complainant and the because of the same, he issued cheque in favour of the complainant and it is also his defence that there after, in the presence of one Ravi, he repaid the amount of Rs.85,000/- and in spite of payment of Rs.85,000/- to the complainant, the complainant has not returned the cheuqe to the petitioner-accused and by misusing the cheque, he filed a complaint before the trial Court. But the materials would show that when the cheque was dishonoured, the respondent-complainant got issued legal notice calling upon the petitioner-accused to make payment. He has not at all responded to the said notice. Then the case was filed before the Court. Even the petitioner-accused has not at all examined Ravi in whose presence, he repaid the amount of Rs.85,000/- to the complainant. He has not produced any document to show repayment of Rs.85,000/- as he admitted issuance of the cheque and the signature on the instrument. The Court below after considering the oral and documentary evidence placed on record, ultimately, convicted the accused for the offence punishable under Section 138 of the Act. The first appellate Court also after re-appreciating the materials placed on record dismissed the appeal and confirmed the judgment and order of conviction passed by the trial Court. Perusing the entire materials placed on record and as the petitioner has failed to make out the case that he has issued the cheque only after receipt of Rs.50,000/- and that, he has repaid the amount of has not at all returned the cheque to the petitioner-accused, the Court below has rightly appreciated the materials and rightly came to the conclusion in convicting the petitioner-accused. I do not find any illegality in the judgment and orders passed by the Courts below. There is no ground to interfere with the judgment and orders passed by the Courts below. No merit in this revision petition. The revision petition is accordingly dismissed.