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TMI Blog2022 (11) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... t, but, to substantiate the same, neither the accused has produced any document nor examined said Sri Parthasarathy in his favour - admittedly for several years, the accused has kept quite without taking any action against the said Parthasarathy for alleged withholding of the cheque of the accused by him for no valid reasons. This also creates a doubt in believing the alleged defence of the accused. It is appreciating these aspects in their proper perspective, both the trial Court and the Sessions Judge's Court have held that the complainant has proved the alleged guilt against the accused and that the accused could not able to rebut the presumption formed in favour of the complainant. Accordingly, both the Courts have held the accused guilty of the alleged offence punishable under Section 138 of N.I. Act and confirmed the conviction respectively. The said witness has failed to tender himself for his further cross-examination from the accused side in spite of giving sufficient opportunities to him and also by virtue of the memo filed by the accused seeking discarding the evidence of PW-1, the trial Court and the Sessions Judge's Court ought not to have considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments from Exs.P-1 to P-9. On behalf of the accused, the accused got himself examined as DW-1 and got marked documents from Exs.D-1 to D-19. 5. After hearing both side, the trial Court by its impugned judgment dated 22.09.2012, convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced him accordingly. 6. Challenging the said order, the accused has preferred an appeal in Criminal Appeal No. 608/2012, before the learned Presiding Officer, Fast Track Court (Sessions)-XI, Bengaluru, (hereinafter for brevity referred to as 'Sessions Judge's Court), which by its judgment dated 19.01.2013, dismissed the appeal by confirming the judgment of conviction passed by the trial Court. It is against these judgments of conviction, the accused has preferred this revision petition. 7. The respondent is being represented by his learned counsel. 8. Records from the trial Court and Sessions Judge's Court pertaining to the matter were called for and the same are placed before the Court. 9. Heard the arguments of learned counsel from both side. Perused the materials placed before this Court. 10. For the sake of convenience, the parties woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused or at least in his Criminal Appeal before the Sessions Judge's Court. As such, he cannot raise the said point for the first time in this revision petition. Learned counsel further submitted that the petitioner has not examined his son and daughter in support of their alleged income and sufficient balance in their bank account. They have not come and stated that their father had no financial necessity to avail any loan from the complainant. He also stated that, admittedly the accused has not produced any documents to show that the cheque in question was issued by him to one Sri Parthasarathy. Admittedly he has not taken any action against the said Sri Parthasarathy to recover alleged cheque from him. As such, his defence that the cheque in question was given to one Sri Parthasarathy was purely an after thought. The learned counsel for the respondent further submitted that, merely because the family members of the accused have some balance in their bank account, it cannot be held that the accused has not borrowed any money from the complainant. He further submitted that the alleged defence of alibi is an after thought and the accused has failed to establish the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case. On 22.12.2009, the complainant filed an application under Section 311 of Cr.P.C., seeking permission to tender himself for further cross-examination from the accused side. The said application came to be allowed on 19.01.2010, but, on a cost of Rs. 200/-. The matter was once again posted for further cross-examination of PW-1 on 08.02.2010. On 08.02.2010 and on the immediate adjourned date, which was on 10.03.2010, once again PW-1 remained absent. The matter was adjourned to 03.05.2010. Due to the leave of the Presiding Officer, the matter was adjourned from 03.05.2010 to 17.05.2010. On 17.05.2010, once again PW-1 remained absent. Thus, imposing a cost of Rs. 200/-upon the complainant, the matter stood adjourned to 02.07.2010. Due to the absence of PW-1, the matter was adjourned from 02.07.2010 to 16.08.2010 on further cost of Rs. 100/-to 27.09.2010 and once again on cost of Rs. 200/-, adjourned to 23.10.2010. Even from 23.10.2010 till 19.07.2012, for seven more hearing dates, PW-1 remained absent and the matter went on adjourning from one date to another date. On 19.07.2012, the case was called in two rounds, but, in both the rounds, PW-1 remained absent. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-examination and the same would prevent him from taking such a contention at this stage, is not acceptable. In fact, since the consequences of PW-1 (complainant) not tendering himself for further cross-examination from the accused side would be more serious to the interest of the complainant (PW-1) himself, as such, it was for him (PW-1) to ensure that he tenders himself for further cross-examination by the accused. Otherwise, the prejudice that would be caused would be for him rather than to the accused. Since PW-1 being the sole witness for the complainant and he himself failed to tender himself for further cross-examination from the accused side even though sufficient opportunities of not less than twenty two times were granted to him, the trial Court has rightly proceeded to post the matter for the next stage i.e., for arguments on the main petition, however, the trial Court should have observed the fact of PW-1 not tendering himself for his further cross-examination from the accused side and consequently should have discarded the evidence led by PW-1. When the evidence of PW-1 thus stands discarded, the entire case of the complainant would fall on its own. However, the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those documents and got them marked as exhibits. The witness further stating that towards repayment of the loan, the accused issued him a cheque bearing No. 118254, dated 01.02.2006, for a sum of Rs. 1 lakh and drawn on Canara Bank, Hosur Branch and the same got dishonoured when presented for realisation for the reason of insufficiency of funds in the account of the accused, got marked the said returned cheque at Ex.P-2 and the Banker's endorsement at Ex.P-3. By producing a office copy of legal notice at Ex.P-5, postal receipt at Ex.P-6, postal acknowledgement card at Ex.P-7, Certificate of Posting receipt at Ex.P-8 and reply to the legal notice at Ex.P-9, the complainant could able to establish that after dishonour of the cheque, he issued a legal notice upon the accused demanding the payment of the cheque amount, however, he received a reply as per Ex.P-9. 18. The accused has admitted that the complainant was known person to him. He has not denied that he is the drawer of the cheque at Ex.P-2 and the said cheque got returned for the reason of insufficiency of funds when presented for realisation by the complainant. He has also not denied the service of notice as per Ex.P- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he had produced a certified copy of the Sale Deed dated 07.11.2005 at Ex.D-14 and the bank statement of State Bank of Travancore at Ex.D-18. No doubt, a perusal of these documents from Exs.D-6 to D-19 would go to show that the accused had educated his son and his son also secured a job and was earning, however, the mere education of a son and the son earning a decent salary would not itself lead to an inference that the accused had no occasion to avail any loan amount from the complainant. Admittedly, the pay slip at Ex.D-12, bank account statement at Ex.D-11 are all of son of the accused, but, not of the accused. As such also, it cannot be ruled out of any possibility of accused borrowing any loan from the complainant. Thus, the main point of argument of learned counsel for the petitioner that accused had no financial need to borrow any amount from the complainant is not acceptable. 20. The accused had also taken a contention that, as on the date of the alleged delivery of the cheque on 31.01.2006, he had not been to Bengaluru and that he was working at Hosur, as such, the question of he coming to Bengaluru does not arise. In his support, he has produced his attendance cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused guilty of the alleged offence punishable under Section 138 of N.I. Act and confirmed the conviction respectively. However, the impugned judgments passed by the trial Court and the Sessions Judge's Court could have sustained provided the evidence of the complainant as PW-1, who was the sole witness for the complainant, was acceptable for its analysis and its appreciation. Since as observed above, the said witness has failed to tender himself for his further cross-examination from the accused side in spite of giving sufficient opportunities to him and also by virtue of the memo filed by the accused seeking discarding the evidence of PW-1, the trial Court and the Sessions Judge's Court ought not to have considered the evidence of PW-1, in which an event, the finding given by them would have been otherwise. As such, the impugned judgments deserves to be set aside, for which purpose, interference in them is warranted by this Court. 23. Accordingly, I proceed to pass the following order: ORDER [i] The Criminal Revision Petition stands allowed. [ii] The impugned judgment of conviction and order on sentence passed by the learned XV Addl.Chief Metropolitan Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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