R. RUDRAPPA Vs. K.S. PARAMESHWARAPPA

JUDGEMENT

(1.) This petition is filed praying this Court to set aside the judgment of conviction passed by the II Additional Civil Judge and JMFC, Kadur in C.C.No.794/2002 dtd. 15/7/2012 and also to set aside the judgment dtd. 6/7/2013 passed by the II Additional District and Sessions Judge, Chikmagalur in Crl.A.No.183/2012 and consequently allow the petition and acquit the petitioner.

(2.) The factual matrix of the case of the complainant/respondent herein before the Trial Court is that the accused/petitioner herein had approached him for financial assistance to discharge his debt and in order to help the accused, the complainant paid an amount of Rs.30,000.00 to the accused and at that time, the accused had assured that he would repay the said amount within one month. Instead of repayment of the amount, the accused issued the subject matter of the cheque dtd. 5/10/1999 for an amount of Rs.30,000.00. When the cheque was presented, the same was returned with an endorsement "account closed". Hence, legal notice was issued. On receipt of the notice, the accused sent the untenable reply and he did not comply with the demand and hence complaint was filed and the Trial Court took the cognizance and secured the petitioner before the Court and he did not plead guilty. The complainant in order to prove his case, examined himself as P.W.1 and got examined three witnesses as P.W.2 to P.W.4 and got marked the documents at Exs.P.1 to 10. The 313 statement of the petitioner was recorded and the petitioner also got examined himself as D.W.1 and got marked the documents at Exs.D.1 to 17. The Trial Court after considering both oral and documentary evidence placed on record, convicted the petitioner and directed to pay a fine of Rs.60,000.00 and in default of payment of fine to undergo simple imprisonment for a period of six months. Being aggrieved by the judgment of conviction and sentence, Crl.A.No.183/2012 was filed and the same was also dismissed on re-appreciation of the evidence on record by the Appellate Court. Being aggrieved by the concurrent findings of both the Trial Court and the Appellate Court, the present revision petition is filed before this Court.

(3.) The main contention of the learned counsel for the petitioner before this Court is that admittedly, the Trial Court has formed an opinion that examination of one H.S. Rameshappa is essential in the case to know whether Ex.D.4 is sent by P.W.4 or not. The Trial Court unfortunately has drawn an adverse inference against the accused for not summoning the attender H.S. Rameshappa to prove the execution of Ex.D.4. The burden of proof is always on the prosecution and the accused is entitled for silence. Therefore, the approach of the Trial Court is incorrect. The appreciation of Ex.D.4 by the Trial Court is erroneous. Ex.D.4 was confronted to the witness P.W.4 and the signature therein was also admitted and the Trial Court forms an opinion that it is a concocted document by making use of the signature of P.W.4. This reasoning of the Trial Court has led to miscarriage of justice.