Dismissed

Ramadas Vithoba Anvekar v. Mohan Vasanth Raikar S/O Vasant M.Raikar

Karnataka HC8 Feb 2021CRL.RP/2096/2012

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition filed against conviction and sentence under Section 138 of the Negotiable Instruments Act. The court upheld the findings of the trial and first appellate courts, finding no error in the evidence appreciation or the application of presumptions regarding the dishonoured cheque.

What did the court decide?

Revision petition dismissed; conviction and sentence confirmed; respondent permitted to withdraw deposited amount.

Ramadas Vithoba Anvekar Vs Mohan Vasanth Raikar S/O… — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE MR.JUSTICE K. NATARAJAN

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CRIMINAL REVISION PETITION NO.2096/2012

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BETWEEN:

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RAMADAS VITHOBA ANVEKAR, AGE- MAJOR, OCC--. R/O.D-3, SHUBAM APARTMENTS, GROUND FLOOR, NAGALA PARK, BEHIND HI-TECH HOSPITAL, KOLLAPUR.

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.. PETITIONER

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(BY SRI MAHESH WODEYAR, ADVOCATE)

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AND :

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MOHAN VASANTH RAIKAR R/O.VASANTH M. RAIKAR,

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SINCE DEAD BY HIS LR’S OF R-1,

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1A. SUNANDA VASANTH RAIKAR, AGE-66 YEARS, OCC-HOUSEHOLD, C.P.BAJAR, SIRSI.

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1B. VANDAN MOHAN RAIKAR,

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AGE-37 YEARS, OCC-HOUSEHOLD, C.P.BAJAR, SIRSI.

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STATE OF KARNATAKA R/BY S.P.P. HIGH COURT CIRCUIT BENCH, DHARWAD.

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.. RESPONDENTS

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(BY SRI S.G.KADADAKATTI, ADVOCATE FOR R-1A) (NOTICE TO R-1B –DISPENSED WITH) (BY SRI RAMESH B. CHIGARI, HCGP FOR R-2)

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THIS CRIMINAL REVISION PETITION FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. AND PRAYED TO SET ASIDE THE JUDGMENT AND ORDER DATED 17.01.2012 PASSED BY THE FAST TRACK COURT, SIRSI IN CRL.A.NO.80/2010 CONFIRMING JUDGMENT AND ORDER DATED 03.06.2010 PASSED BY THE I ADDITIONAL J.M.F.C., SIRSI IN C.C.NO.3905/2005 AND CONSEQUENTLY ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 138 OF N.I.ACT.

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THIS PETITION COMING ON FOR FURHTER HEARING THROUGH PHYSICAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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This petition is filed by the petitioner/complainant under Section 397 read with Section 401 of Cr.P.C. being aggrieved by the Judgment and sentence passed by the I Additional J.M.F.C, Sirsi (for short ‘the trial Court’) in Criminal Case No.3905/2005 dated 03.06.2010 for having convicted the accused and sentenced to pay fine of 5,000/-, in default of payment of fine, he shall be ordered to undergo imprisonment for one month and to pay compensation of 49,000/- to the complainant and same was confirmed by the Fast Track Court, Sirsi (for short ‘the first appellate Court’).

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Heard the arguments of learned counsel for the petitioner as well as learned counsel for respondent No.1(A) as well as learned HCGP for respondent No.2-State.

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The parties herein referred to as per their ranks before the trial Court for convenience.

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The case of the complainant is that he has filed private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of Negotiable Instruments Act (for short ‘the N.I.Act’) alleging that the complainant worked under the shop of

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accused since 1983 to 2001 and accused has not paid any labour charges to the complainant. At that time, complainant used to prepare the golden ornaments and in the year 2001 the complainant had demanded total amount of 2,00,000/- as due payable by the accused. Later after the settlement, the wife of the accused gave 3 cheques for 5,000/- each, which were honoured. The wife of the accused gave another cheque for 5,000/- dated 10.03.2002 to the complainant, which become dishonored and a notice was also issued on 22.06.2002. A complaint was also filed on her, which is pending before the JMFC, Kolhapur at Maharastra. Accused gave a post dated cheque of 27,000/- dated 21.05.2005 drawn on Mahaveer Co-operative Bank, Branch Shahapuri, Kolhapur towards part payment and the said cheque produced for collection through his banker Syndicate Bank, Sirsi branch was bounced for the reasons refer to drawer. A notice was issued on 18.06.2005, which was returned as not claimed on 04.07.2005, which is deemed service. The accused neither replied to the notice nor paid any money to the complainant. Hence, he has filed complaint before the police.

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After taking cognizance, the accused released on bail, accusation was read over to the accused. He has pleaded not guilty

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and complainant himself examined as P.W.1 and got marked 6 documents. Accused cross-examined the P.W.1, but not led any evidence. He has totally denied the case of complainant by giving answer in recording of statement under Section 313 of Cr.P.C. by the trial Court. After hearing the arguments, the trial Court convicted the accused and sentenced as stated supra . Assailing the same, he has filed appeal before the first appellate Court in Criminal Appeal No.80/2010, which was dismissed on 17.01.2012. Hence, he has filed revision petition before this Court.

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Learned counsel for the petitioner contended that both the courts below have committed error in accepting the evidence of the P.W.1 and the document Ex.P.5 is a reply letter given by the wife of accused, which is nothing to do with the accused and which is irrelevant document, which is not acceptable. There is no legally enforceable debt payable by the accused to the complainant. Therefore, he prayed for allowing the revision petition by setting aside the Judgment of both the courts below.

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Per Contra , the learned counsel for the

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respondent/complainant supported the Judgments of both the

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Courts and contended that the accused not at all paid the labour charges to the complainant and he was payable more than 2,00,000/-. After the settlement, the accused promised to pay 2,00,000/-, the wife of the accused given 3 cheques for 5,000/each, which were honoured. Another cheque for 5,000/- issued by the wife of accused was dishonoured. The case was pending before the Court, the accused also gave one cheque for `27,000/- towards part payment, which was dishonoured, for that a notice was also issued but refused by the accused. He has not led any evidence and there is no error or illegality committed by the Courts below to interfere with the considered judgments. Hence, prayed for rejecting the revision petition.

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Upon hearing the arguments addressed by both sides and on perusal of the material evidence on record, the point that arises for consideration before this Court is,

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The petitioner made out any ground to interfere with the Judgment of conviction and sentence passed by the trial Court and upheld by the first appellate Court, which call for any interference by this Court?

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On perusal of the records, it is not in dispute the relationship of the complainant and the accused. The accused said to labour goldsmith used to prepare golden ornaments in the shop of accused as a worker between 1983 to 2001 and no labour charges said to be paid. However, there is no document to show what the labour charge was and what was the due amount. But in order to discharge and payment of the wages, the accused gave the cheque for `27,000/- dated 21.05.2005. The said cheque when presented before the Bank was referred to the drawer Bank and later a notice issued on 18.06.2005, admittedly the accused did not reply to the said notice and subsequently a complaint came to be filed by the complainant. Even after appearance by the accused, he has contested the case, though chosen to cross-examine the P.W.1, but nothing has been elicited to disbelieve the evidence of P.W.1 given on oath. Except, denial nothing has been elicited and only it is elicited that there is good relationship between accused and complainant. Though, the accused used to take care of the complainant and his welfare when he was staying in his house, that itself is not a ground to reject the complaint filed by the complainant. The case of the accused was one of total denial, in the

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cross-examination of the P.W.1. The cheque is Ex.P.1, endorsement by the Bank is Ex.P.2. Ex.P.3 is copy of legal notice. Ex.P.4 is postal cover for having sent the notice to the accused. Ex.P.5 is a reply notice given by the wife of accused namely Smt Archana Anvekar seeking some time as against the notice issued by complainant regarding dishonour of cheque issued by her. On careful perusal of the reply notice, which is in Marathi language, it is read before the Court through one of our staff, which reveals that wife of the accused seeking some time by sending a reply letter to the advocate for complainant by admitting the payment payable to the complainant, which corroborates with the evidence of P.W.1. However accused except denied the case of the complainant and not chosen to enter the witness box to give rebuttal evidence against the complainant’s case. The trial Court after considering the evidence on record and the presumption available in favour of the complainant under Section 139 of N.I.Act and on relying the Judgment of the various High Courts and found the accused guilty and convicted for the offence punishable under Section 138 of N.I.Act. The first appellate Court after re-appreciating the evidence of record, rightly upheld the conviction and sentence passed by the

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trial Court. Absolutely there is no perverse finding or illegality committed by the courts below in convicting the accused/petitioner. The trial Court also imposed only fine of 5,000/- and one month imprisonment as default sentence and ordered to pay 49,000/- as compensation. There is nothing error committed by the Courts below even passing the sentence and awarding the compensation in order to interfere by this Court in the revision. Considering the facts and circumstances of the case, I do not find any error or illegality committed by the Courts below in passing the considered judgments. Hence, this revision deserves to be dismissed. Accordingly, it is dismissed.

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Judgments of conviction of Courts below are hereby confirmed.

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However, respondent No.1A is permitted to withdraw the amount deposited by the accused as per order passed by the first appellate Court.

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Sd/JUDGE

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ckk

Ramadas Vithoba Anvekar v. Mohan Vasanth Raikar S/O Vasant M.Raikar

Case brief

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Ramadas Vithoba Anvekar v. Mohan Vasanth Raikar S/O Vasant M.Raikar

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