9911796707
TMI Blog2022 (4) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... e Trial Court for fresh consideration. When the cheques were admitted by this petitioner and only his defense that the cheques were given in 1993 and not in the year 2004 and the same has not been established. Hence, presumption has to be drawn in respect of the transaction is concerned. The Trial Court also in paragraph No. 17 taken note of the said fact into consideration and the Appellate Court in the appeal in paragraph No. 18 discussed that the accused has not disputed the issuance of cheque and the signature thereon. It is also the specific case of the accused that in order to discharge the liability, he had issued the cheque in question to the complainant - When both the Courts have given the reasoning while convicting the petitioner based on both oral and documentary evidence placed on record, there are no error committed by both the courts and only this Court can exercise the revisional jurisdiction if the judgment of the Trial Court and the Appellate Court contrary to the evidence available on record. If any such perverse finding is given or otherwise, the revisional jurisdiction cannot be exercised. Having taken note of such factual aspects is concerned; it is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate acquitted accused Nos. 3 and 4 for the said offences and convicted accused No. 1 to pay a sum of ₹ 1,50,000/-. Aggrieved by the judgment of conviction, accused No. 1 filed Crl.A. No. 53/2006, wherein, the judgment of conviction was set aside and the matter was remanded to the Trial Court with a direction to give an opportunity to the complainant to depose in the case as witness to prove his complaint-Ex. P18 and to adduce further evidence if any by both the sides and to dispose of the matter on merits. The said order again was challenged by the petitioner in Criminal Revision petition No. 86/2007 before this Court and the same was also dismissed. In terms of the order passed by the Appellate Court, the complainant was further examined as P.W. 2 and got marked the documents as Exs. P1 to P20(a)(b). 313 statement was recorded. Again the accused, the present petitioner stepped into the witness box and further examined. The Trial Court having considered the material on record afresh on merits, convicted the present petitioner. Being aggrieved by the judgment of conviction and order on sentence, an appeal is filed in Crl.A. No. 125/2011 before the Appellate Court. The Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed with regard to the transaction between the petitioner and the respondent. In the cross-examination of D.W. 1, he categorically admitted the capacity to lend the amount of ₹ 1 Lakh by the complainant and now cannot contend that the complainant was not having capacity to lend the amount and contend that the same is not shown in the IT returns. The learned counsel also would submit that in Ex. D3, the ink used in the said document is different and there is an insertion. The petitioner categorically admitted that in the partnership firm-Itagi Medicals, he is one of the partner and admits that the case is filed against all the partners. It is also contended that the Trial Court acquitted the other accused and sentenced against him. Hence, the very contention of the learned counsel for the petitioner cannot be accepted. 7. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent and on perusal of the material available on record, the points that would arise for consideration of this Court are: (i) Whether the Trial Court has committed an error in accepting the evidence of PWs. 1 and 2 and comes to the conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner also relies upon the document of cheque, which is marked as Ex. D1. On perusal of Ex. D1 dated 20.04.1993, the same is for an amount of ₹ 50,000/- and the said cheque No. 40347. The learned counsel relying upon the document-Ex. D1, would vehemently contend that when Cheque No. 40347 was given in the year 1993, question of issuing other two cheques bearing No. 40349, 40350 in the year 2004 does not arise and also produced Ex. D3 for having received the amount. The very said contention cannot be accepted for the reason that for the entire transaction in respect of the accused is concerned, no bank statement was produced. There is nothing on record to show that whether other cheques are issued subsequent to the said date. 10. The contention of the learned counsel for the petitioner is that the cheque was given in the year 1993. No doubt, Ex. D1 is dated 20.04.1993 i.e., issued in favour of the present petitioner. But contention is that no transaction was taken place in the year 2004. But in the cross-examination, he categorically admits that the partnership Firm is having the bank account and also he relies upon the document-Ex. D3 for having paid the amount. He categori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to meet the said contention also, no opportunity was given to the complainant for the first time in revision, the said contention is raised. No doubt, Ex. P1, is signed by accused No. 1 as Partner. But the complaint is very specific that this petitioner only approached him for financial assistance and the complainant has not stated that all of them have approached him. In paragraph No. 2, it is specifically stated that accused No. 1 for their business, he requested to lend the money in the year 2004. No doubt, other averments are that they did not repay the amount and took time and already accused Nos. 3 and 4 have been acquitted and the same has not been questioned. It is also admitted in the cross-examination of D.W. 1 that the complainant is one of the partner of the said Firm. The complaint is also filed in the individual capacity of all the partners. When such being the case when the defense has not raised at the initial stage as well as the contents of the complaint, it is clear that this petitioner only requested the complainant to lend the money. The very contention of the petitioner cannot be accepted. The judgments of the Apex Court relied upon by the learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble on record. If any such perverse finding is given or otherwise, the revisional jurisdiction cannot be exercised. Hence, I do not find any circumstances to interfere with the findings of both the Courts. Hence, I answer Point Nos. (i) to (iv) as 'negative'. 14. It is also the contention in the revision petition that there is an order to pay an amount of ₹ 2 Lakhs and to undergo six months simple imprisonment, is unjust and no case was made out for ordering for payment of double the cheque amount. The petitioner had suffered loss in business, which lead to close the medicals in the year 1993 and the petitioner is in financial difficulty and unable to pay such huge compensation. It has to be noted that the impugned order of conviction made by the Trial Court was passed on 24.08.2011 and it was the transaction of the year 2004, according to the complainant. Earlier also the matter was challenged and remanded to the Trial Court; against that order, the revision also filed before this Court and the same was dismissed and again Criminal Appeal was filed in the second round in 2011, the same was disposed of in 2013 and almost a decade has been elapsed before this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
