Sri Ravikumar vs Smt. Shanthamma

H.N. Nagamohan Das, J.—This revision petition is directed against the judgment of conviction and sentence dated 9.7.2009 in C.C. No. 2243/06 passed by the JMFC-II, at Davanagere and confirmed in Crl. A. No. 71/09 vide judgment dated 20.02.2010 passed by the Addl. District and Sessions Judge, Davanagere. The respondent filed a private complaint against the petitioner in PCR No. 546/06 for the offences punishable u/s 138 of Negotiable Instruments Act. The jurisdictional Magistrate registered the case and after hearing had taken cognizance in C.C. No. 2243/06. The cheque amount is Rs. 1,30,000/-. Before the Trial Court the respondent examined himself as PW-1 and got marked Ex. P-1 to P-8. The petitioner failed to cross examine PW 1 despite grant of several opportunities and no evidence is adduced on his side. On appreciation of the available material on record the trial Court passed the impugned judgment convicting the petitioner and sentencing him to pay fine of Rs. 2,000/- and compensation of Rs. 1,65,000/-. Aggrieved this order of the trial court, the petitioner filed an appeal before the Lower Appellate Court in Crl. A. No. 71/09 and the same came to be dismissed under the impugned judgment dated 20.02.2010. Hence, this revision petition.

Heard arguments on both the side and perused the entire revision papers.

The only ground urged by the learned counsel for the petitioner is that petitioner did not had a fair opportunity before the Trial Court. This contention of the learned counsel for the petitioner was considered by the Lower Appellate Court. It is necessary to extract the relevant reasoning of the Lower Appellate Court and they are at paragraphs 8 to 13, which reads as under:-

This takes me to consider as to whether the accused has made out a case u/s 397 Cr.P.C. to recall PW-1. The complainant is examined as PW-1 on 08.02.2007. The cross-examination if PW-1 was deferred at the request of the learned advocate for the accused and it was adjourned on 02.03.2007. But, on 02.03.2007 again the learned advocate for the accused sought time for cross-examination. The learned JMFC-II Court, Davanagere, pleased to grant time on payment of cost of Rs. 300/- and it was adjourned to 4.4.2007. But, on 4.4.2007 the accused did not choose to cross-examine. PW-1 and not paid the cost also. It is adjourned to 29.5.2007

The entries made in the trial court order sheet reveals that, on 29.5.2007 again the learned advocate for accused sought time for cross-examination. It is further adjourned to 28.6.2007 on payment of further cost of Rs. 500/-. On 28.06.2007 the Presiding Officer was on leave. Hence, it is adjourned 27.7.2007. On 27.7.2007 again the learned advocate for accused sought time.

The accused also failed to pay the earlier cost imposed. The learned JMFC-II Court, Davanagere, rejected the request to grant further time and the evidence of PW-1 was stands closed. The case was adjourned on 10.08.2007 for 313 Cr.P.C. statement. But, the accused remained absent. It is adjourned to 22.08.2007. The learned advocate for accused filed an application on 22.08.2007 u/s 311 Cr.P.C. to recall PW-1. (i) The said application came to be allowed on payment of cost of Rs. 1,000/-. The case was adjourned to 06.09.2007. But, the learned advocate for accused again sought time. The request was refused and the case was adjourned to 6.9.2007. (ii) On 6.9.2007 the learned advocate for accused filed again another application u/s 311 Cr.P.C. and it is allowed on payment of cost of Rs. 500/-.

The case was adjourned to 22.09 2007 on which date the accused remained absent and the learned advocate for accused not cross-examined PW-1. It is again adjourned to 02.11.2007 as a last chance. On 02.11.2007 the Presiding Officer was on leave. Hence, it is adjourned to 7.12.2007. But, the learned advocate again sought time for cross examination of PW-1 and it was refused. The case was adjourned to record 313 Cr.P.C. statement on 08.12.2007. (iii) On 8.12.2007 the learned advocate for accused again filed an application u/s 311 Cr.P.C. to recall PW-1. The said application came to be allowed by an order dated 20.02.2008 and on payment of cost of Rs. 2000/-.

But, the learned advocate for accused did not choose to cross-examine PW-1. On 10.04.2008 again the learned advocate for accused sought time for cross-examination of PW-1 and it was rejected. (iv) On 6.5.2008 the learned advocate for accused filed another application u/s 311 Cr.P.C. to recall the PW-1. The said application came to be rejected by a considered order with cost of Rs. 1,000/-. The accused statement was recorded on 6.5.2008 and case was adjourned to 29.05.2008 for defence evidence, if any. The accused has not lead any defence evidence on 29.05.2008 and it was adjourned to hear oral arguments. In the meantime the accused filed the Cr.R.P. No. 36/2008 before the District and Sessions Court, Davangere, as against the Order passed by JMFC-II Court, Davangere, dated 06.05.2008 rejecting the request of the accused to recall PW-1. The Cr. R.P. 36/2008 was heard on merits and it came to be dismissed by a considered order dated 25.11.2008.

Subsequently, the accused filed (v) another application u/s 311 Cr.P.C. to recall PW-1 and it came to be allowed on payment of cost of Rs. 1,000/- by an Order, dated 28.04.2009. But, accused did not choose to cross-examine PW-1. Thereafter, the learned advocate for accused filed another application u/s 311 Cr.P.C. to recall PW-1 and it came to be rejected by an Order dated 24.06.2009 with cost of Rs. 2000/-. The accused had preferred Cr. R.P. 49/2009 against this Order dated 24.6.2009 before this Court on 03.07.2009 and requested for grant of interim stay of the proceedings in CC No. 2243/2006. After hearing the learned advocate for the accused/petitioner, the request of the accused to grant interim stay was came to be rejected by a considered order dated 16.07.2009.

The above reasoning manifestly makes it clear that petitioner failed to avail the opportunities provided to him. On the other hand, the petitioner was only interested in dragging on the proceedings. Therefore, question of providing one more opportunity will not arise. I find no justifiable ground to interfere with the impugned judgments.

Accordingly, revision petition is hereby dismissed.