IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL REVISION PETITION No.1409 OF 2018 BETWEEN:
Sri Sannavenkatappa S/o. Pujari Chinnappa Aged about 63 years Rtd. Nethra Parikshakaru R/o Behind Jgnana Bharathi School Davalagiri Extension Holalkere Road Chitradurga-577 501. ... Petitioner (By Smt. K.R. Roopa, Advocate) AND:
K.M. Jayasudha D/o. K.M. Vasanthraj Aged about 32 years R/at Devaraja building Near Karuvinakatte circle Chitradurga Town-577 501. ... Respondent (By Sri. Rajakumar.C., Advocate) This criminal revision petition is filed under Section 397 r/w 401 of Cr.P.C. praying to set aside the order dated 27.11.2018 by the learned Special II Additional District & Sessions Judge, Chitradurga in Crl.A.No.14/2016 by directing for allowing the application filed under Section 391 of Cr.P.C. for additional documents to adduce additional evidence filed by petitioner/appellant/accused this petition with cost.
This criminal revision petition coming on for Admission this day, the Court made the following:
O R D E R This criminal revision petition is filed seeking to set aside the order dated 27.11.2018 passed in Crl.A.No.14/2016 by the Special Court and II Additional District & Sessions Judge, Chitradurga thereby rejecting the application filed by the accused/petitioner under Section 391 of Cr.P.C. seeking permission to file certain documents and to give additional evidence in the case.
2. I have heard the learned counsel appearing for the petitioner and the learned counsel for the respondent.
3. The respondent filed a private complaint against the petitioner alleging an offence punishable under Section 138 of Negotiable Instruments Act, 1881. The learned Magistrate by an order dated 28.01.2016 in C.C.No.1012/2013, found the accused guilty and sentenced him to undergo S.I. for three months and to pay a fine of Rs.5,05,000/- (Rupees Five Lakhs and Five thousand only) and in default of payment of fine amount, to further undergo S.I. for a period of one month.
4. The accused/petitioner herein preferred Crl.A.No.14/2016 before the learned Sessions Judge challenging the judgment and order of conviction and sentence passed by the Trial Court. He filed an application under Section 391 of Cr.P.C. along with list of documents, with a prayer to permit him to produce the said documents and to give evidence. The said application was opposed by the respondent/complainant by filing statement of objections. Learned Sessions Judge by an order dated 27.11.2018 rejected the said application. Aggrieved by the same, the present revision petition has been preferred.
5. Learned counsel appearing for the petitioner would contend that the learned Sessions Judge has committed an error in not giving an opportunity to the accused/petitioner to file additional documents and to adduce additional evidence. It is submitted that the defence taken by the petitioner that the complainant had no source of income would be fortified by the said documents. Therefore, additional documents are indeed necessary to prove the innocence of the accused/petitioner. It is further contended that the respondent/complainant herself was working under petitioner’s relative’s opticals. It is submitted that the learned Sessions Judge has not considered the matter on merits. On the other hand, he has rejected the application on erroneous grounds and accordingly, the learned counsel seeks to allow the petition. In support of her contention, learned counsel has placed reliance on a decision of this Court passed in Crl.RP.No.235/2013 disposed off on 27.09.2018.
6. Per contra, the learned counsel appearing for the respondent contended that the documents which the petitioner/accused now wants to rely upon are not at all connected to the case on hand. None of the above documents are related to the present parties. It is submitted that to drag on the proceedings, the application under Section 391 of Cr.P.C. was filed, which has been rightly rejected by the learned Sessions Judge. Learned counsel further submits that there are number of cheque bounce cases filed against the accused/petitioner. Accordingly, he seeks to dismiss the revision petition.
7. The accused/petitioner has been convicted by the Trial Court for an offence punishable under Section 138 of Negotiable Instruments Act. According to the complainant, the accused took a hand loan of Rs.5,00,000/- (Rupees Five lakhs only) from the complainant during the month of August 2012 for his urgent personal domestic requirement. In pursuance of the same, the cheque bearing No.043886 dated 18.03.2013 for a sum of Rs.5,00,000/- drawn on Union Bank of India, Chitradurga branch, Chitradurga was issued and when it was presented to the bank on 19.03.2013 for encashment, the cheque was returned with an endorsement ‘Funds insufficient’ and inspite of issuance of legal notice, petitioner failed to pay the amount. Accordingly, the respondent/complainant filed the complaint.
8. It is seen that the complainant got examined himself as PW.1 and he got marked documents Ex.P1 to Ex.P6. The accused got examined himself as DW.1 and he got marked five documents i.e. at Ex.D1 to Ex.D5.
9. The learned Magistrate after considering the evidence and material on record found the accused guilty and convicted him for the offence punishable under Section 138 of Negotiable Instruments Act.
10. During the course of the hearing of the appeal filed by the accused/petitioner before the Sessions Court, an application under Section 391 of Cr.P.C. was filed seeking to produce certain documents and to give evidence. It is relevant to mention that the said application came to be filed in the month of August 2017.
11. Perusal of the order passed by the learned Sessions Judge goes to show that the application under Section 391 of Cr.P.C. was filed with a list of certified copies of an order passed in Crl.Misc.320/2016 on the file 2nd Addl. Civil Judge and JMFC, Chitradurga, which was filed by Sharadamma against K.M. Vasanthraju under Section 12 of Protection of Women from Domestic Violence Act, 2005, certified copy of petition in Crl.Misc.320/2016, certified copy of objection in Crl.Misc.320/2016, certified copy of compromise petition in Crl.Misc.320/2016, certified copy of complaint in CC.1074/2013 filed by G.T. Nagaraj Vs Sannavenkatappa for the offence under Section 138 of NI Act, certified copy of legal notice issued in CC.1074/2013 to Sannavenkatappa by G.T.Nagaraj, certified copy of order sheet in C.C.2045/2015 which was filed by M.Divakar against Lakshmisha under Section 138 of NI Act, certified copy of complaint in CC.2045/2015, certified copy of order sheet in CC.1923/2016 which was filed by M.V. Pushpa against Lakshmisha under Section 138 of NI Act, certified copy complaint in CC.1923/2016, certified copy of order sheet in CC.1063/2016 which was filed by the Channabasaiah against Lakshmisha under Section 138 of NI Act, certified copy of an complaint in CC.1063/2016, zerox copy of order sheet in CC.1060/2016 which was filed by Sriram Chits Karnataka Pvt. Ltd., against Lakshmisha under Section 138 of NI Act, zerox copy of complaint in CC.1060/2016.
12. It is not the case of the petitioner that the documents which are sought to be produced as additional documents are in respect of the present parties. Learned Sessions Judge has observed that till 2017, the petitioner/accused kept mum neither making any progress of the case nor came forward to argue the case on merits. It is also observed that the proposed documents filed in the Court seeking permission to lead additional evidence do not belong to the present respondent. Some documents are relating to the case filed by the mother of the respondent/complainant under Section 12 of Protection of Women from Domestic Violence Act, 2005 seeking maintenance from her husband. The documents which the petitioner wants to produce are not at all relevant to the case on hand. Those documents belong to the family of the respondent/complainant. Whether the respondent/complainant had the financial capacity to lend loan to the present petitioner is a matter to be considered on the basis of the evidence adduced before the Trial Court and from the available records, which are marked before the Trial Court.
13. The judgment relied upon by the learned counsel for the petitioner is not at all applicable to the facts of the case on hand, as in the said case the additional evidence which was sought to be adduced pertains to the parties in the said proceedings under Section 138 of the Negotiable Instruments Act. Therefore, the said decision is not helpful to the petitioner.
14. There is no illegality in the order passed by the learned Sessions Judge and there is no merit in the revision petition. Accordingly, this criminal revision petition is dismissed.
SSD Sd/- JUDGE