.i..
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 131' DAY OF AUGUST 2008
BEFORE
THE HON'BLE MRJUSTICE SUBHASH B;§'\D;-.V "V
BETWEEN:
M. Bashcer,
S] 0. Abdul Khadar,
Major, R.B. Steal
Factory W'u1*I-as,
Halepcte,
Narashnhaiajapma.
(By Sri. H. V. Ragr.a'~§1i§nd£§1 Adi};'}V 'V V V
AND:
Ahaxnad _ AV";-V fl:
S/o. Rasciol Stab,' -- .
Major, K.G.N.V.Aui'o_ Wr.firks,__ V' V
Mai11Road,X__ V % V V
Na;msimharajap_m*a. - _
{By Srfi-'-§VGVi1fi':~hVK0€iéi; «Adv-E
cggmng mvlszox PETI'l'fii'}§i-,!!j()..'3V9 ;A%ggg V j V
" PETITIONER
.. RESPONDENT
Revision Petition is filed under Section 397
R/W. V ‘C”1_:P.(3.V pxaying to set aside the conviction and
V sentence awmtig;-ud in C.C.No.355[O3 Dt.18.11.2003 on the file of
the JMFG, ‘i’€.R.Pu.ra and confirmed by the 13.0., F”I’C–I,
::mags.1;;.;s, in Cr1.A.No.172/05, m.25.01.20o7.
V , V’IVV’Vb_«is. Revision Petition coming on for Admission this day.
made the following:
SLE_Q.§_B
This Revision is against the judgment of eonvietio:e.._»a_nd
order of sentence in C.C.No.355/2903 on the fiie of
N.R.Pura confirmed in Cximinal Appeal No.1’72/200$’ 5.1:’;
of Fast Track Court-I. Chikxnagalur.
2. Respondent is the coxnplainant, It is;–“a11¢’géd
petitioner herein had borrowed a of Rs.4’6,(X3Gj1- to
repay the said amount ?.4″%> iiA3;terest per
annum. The complainant amount. In
response to the s§mie;, ‘_’the cheques dated
19.3.2003 for 5i¢;.4.’2oo3 for 9315,0001-.
when the were returned to the
Iespondennwitig .”:insufieie11t fund”. In this
regard, a lef§al_4_VVVnotViee 8.7 .2003 was issued by the
jsespondentv. On ,of the same, the petitioner herein
A1*e_;)1Aie(i.–. allegation made in the notice.
Resnonfient in proof of his case, he got himself
–1 and also produced Exs.P1 to P7. Petitioner
examined as I)W–1 and examined two witnesses as
K
-3-
4. The Mal court on appreciation of the evidence convicted
the accused for an offence punishable under Section.,”1{38 of
Negotiable Instruments Act. The accused filed an
the lower appellate court. The appellate ”
consideration and re-appxreciatzion of ithel evidence; the ‘
judgment of the trial court.
5. Learned Counsel for thelvlvupetitionetll that. the
legal notice is dated ts”‘–no acknotvledgement
produced for having servedfl However, reply is
given to the notice on V The complaint is
filed on is no date of receipt of
the iegal taking into consideration
the date on complaint is within 15 days
from the date lofhzecelipt legal notice. The complaint is not
” ‘ v,.I.~.i..e«’contended that, as per the complaint.
the that. the petitioner herein had borrowed
bepayahle after six months, though the cheques
V are and 10.4.2003, but both the cheques are
4onvVit.).3.20O3 only, i.e.. even before expixy of six months’
He also contended that. the cheques were collected
itowaxds the chit fund business and after payment of chit fund,
3 the cheques are not returned. and it is clear from the evidence of
DWs- 1 to 3. The respondent was in the habit of collecting blank
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is received on 10.7.2003. The receipt for having issued the legal
notice by registered post is also produced. which is dated
8.7.2003. If the date of acknowledgement is taken as
the complaint is filed after expiry of 15 days .
submitted that, in the order sheet of themtrial 0′ ” ‘V
filed by the respondent is also recorded.
‘7. As regards to the demandiotiiamount inonths, 0′ 0
he submitted that, though the cheqnes”Lsre–~datedA’ and
10.4.2003, they were itinfeentonths i.e., after
expiry of six months._:”H__e at no point of
time, the cheques are lying
with the respondent; thought, when the
legal notice by way of reply such a contention
is raised. Hefinther’ ttiat. according to the reply. the
chit filndgebusixxess’-got’ ovei? February 2003 and the cheques
‘iv_efe’ not Butimthe evidence of the petitioner and two
wietlesisesi :.?by him. they do not support the said
iE*”‘contentio:n to them, the chit fund business is of
if the._c§1it fund business got over in 2001, the petitioner
Vnotihave kept quiet fill July 2003 and there is no evidence
that. at any point of time. such a demand is made except
Aééseftiflg in the oral evidence. No material is produced by the
petitioner. He also submitted that, to prove that there was a chit
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fund business, no–evidence is produced except oral evidence of
Dws-2 and 3. Legally chit fund business cannot be earned.
without valid licence under the provisions of Chit
submitted that, such a contention cannot be raised__iji1iee$- _
is a specific material.
8. Insofar as contention as Iegogd
15 days. is concerned, no Vdoiobt, the daeknovtdedfgementvdied” e.
not marked in the evidence, but not fithat, the
acknowledgement finds – ., It’ is aigoddencnfiofled
in the order sheet that. it memo. The
acknowledgement.dié.e1o3ed=A._se:$rtee of 10.7.2003, if that
date is taken i:1to .¢¢;isi¢:e:a1i;;:«§;’ tliedoomdplaint is filed after 15
days. I do -jnotd is any justifieation in the
contention Ieisedtby Counsel for the petitioner. Even
“that .é1ekaoW1ed.gement is not marked in the
for the purpose of marking the same. again
–:back to the trial court does not sexve any
‘v”purpose__no;’v’it the interest ofjustiee also.
2 AA ;9:.,AsNx\ega1*ds to the chit fund transaction. DW~1 in his
eirideoeeddstates that, it is in 2001, wherein it is alleged that, the
‘ieaépondent had carried on the chit fund business for an amount
of Rs.’.23,{)O0/ –, but looking at the reply given by the petitioner as
K
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that is so, haw many instalments of chit fund was paid, how
many cheques were issued as security and why demand for the
return of cheques was not made and same is not explained either
in the reply notice or in the evidence.
1 1. Both the ‘courts have coneurrenfly held H
petitioner. This being the revision, even on re-appsveeiafieztii
1’e~co11sidemtion of the entire evidence.
to interfere with the judments of i ii i V
12. However. at this the
petitioner submits that, the theiebxieunt and
the sentence of by the
tna’ 1 court Vbeimisetii the request. I find it
reasonable ‘aside…’ imprisonment of one year
imposed by In respect of remaining pan.
j1;idgme13.’t’ 5’zfen_iait;s.
for the petitioner at this stage
ipeiifioner has deposited Rs.25,000]- towards
~ jVcompensafiLx1i3~ and Rs.3,000/ — fine. The cheque amount is
He submits that, the compensation amount be
i. Learned Counsel for the respondent agreed to fix the
.;_:eiJ1pensation amount at Rs.50.000/ -. Considering the
submissions of both sides, though the matter was disposed of on
KNM/– 5 ~
merit, however, the sentence ordered by the trial court is
modified. In the light of the submissions made by both ‘(ha
Counsel, the petitioner herein is sentenced with Rs.3,m}Q]»»_ ii1g.e
and Rs.50.000l- compensation, out of which the _
ajimady deposited Rs.3.000/- fine and.
compensation. The remaining uh:-rt:
weeks, in default, the }3€’fLit.l0}f1£’)I’ *1″{‘)’ 111*1’¢:i::-._r”gc> zofkg %»
months’ SJ. . _ ‘ ‘
Accon:1i11g1y. the 1?e*ari:s3::ci:zsaL_PefiVi.:i_1–i