Mr. Santhosh D. Nayak vs Mr. Paul Mahesh Soans

N. Ananda, J.—There are concurrent findings of courts below that petitioner is guilty of an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, "the Act"). Therefore, he is before this court. I have heard Sri K. Shashikanth Prasad, learned counsel for petitioner (accused) and Sri H. Jayakara Shetty, learned counsel for respondent (complainant).

This court while exercising revisional jurisdiction u/s 401 Cr.P.C., does not sit as a court of second appeal. This court can interfere with the impugned judgment if the courts below have committed glaring errors in appreciation of evidence or errors of law resulting manifest injustice to petitioner.

The learned counsel for petitioner submits that sufficient opportunity was not given to learned counsel for petitioner (accused) before trial court.

This submission is contrary to the contents of order sheet. The learned trial Judge had given sufficient opportunity to cross-examine respondent (complainant), however such opportunity was not availed. Time and again, petitioner (accused) had filed applications u/s 311 Cr.P.C., which were allowed on payment of costs, however petitioner (accused) had not obeyed the orders. The petitioner (accused) had made farce of entering into settlement and filed a joint memo, on 22.09.2007, trial court passed the following order:-

Case called before Lok Adalath. Accused present and counsel for the accused present. Both the parties have filed joint memo. Perused the joint

memo. As per joint memo the accused admitted to pay the said amount of Rs. 75,000/- in each installment containing Rs. 25,000/- within 3 months from the date of joint memo. In view of the said joint memo, the case is compromised. Accordingly, call on for payment of 1st installment by 10-10-07.

Thereafter, petitioner did not adhere to terms and conditions arrived in terms of joint memo. The learned trial Judge had issued non-bailable warrant to secure petitioner (accused).

The learned counsel for petitioner had filed several applications for exemption of petitioner (accused). The petitioner has dragged on proceedings by taking recourse to all possible methods. The evidence of respondent (complainant) has remained uncontroverted. The petitioner

(accused) has no valid defence to make. In the circumstances, learned trial Judge convicted petitioner (accused) for an offence punishable u/s 138 of the Act and sentenced him to pay fine of Rs. 1,02,000/- viz Rs. 1,00,000/- towards cheque amount and Rs. 2,000/- towards fine amount, in view of recalcitrant attitude shown by petitioner (accused). Thereafter, petitioner (accused) was before I-appellate court. Even before I-appellate court, petitioner (accused) had contended that he had not been given sufficient opportunity, which is contrary to records. Therefore, appeal was dismissed. Aggrieved by the same, petitioner is before this court.

The evidence of respondent (complainant) has not been controverted by petitioner (accused). The petitioner (accused) has not rebutted presumption available u/s 139 of the Act. There are no reasons to interfere with the impugned judgment of conviction. The revision petition is dismissed.