Y.S. KUMAR Vs. ANANTH

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the learned counsel for the respondent.

(2.) THE petitioner was the accused before the court below, in respect of the complaint for an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "the NI Act" for brevity). It was the case of the complainant that the petitioner had issued two cheques bearing No. 150501 dated 14.1.2004 for a sum of Rs. 96,000/ - and cheque bearing No. 150502 dated 18.10.2004 for a sum of Rs. 83,000/ -. Both drawn on Cauvery Grameena Bank, Alanganchi Branch, Nanjangud Taluk. This was in purported repayment of a loan from the complainant. The complainant is said to have presented the cheques for encashment and the same were returned with the banker's endorsement that the funds were insufficient, as per endorsement dated 11.3.2005. Thereafter, the complainant having issued a notice in terms of Section 138 of the NI Act and when the demand was not met, he had followed up with a complaint. The Court having taken cognizance and having issued summons, the petitioner had entered appearance and set up a defence that he had repaid the entire amount. The complainant who had retained the cheques, which were offered as security for due repayment, misused the same. In support of the same, he had produced Exs. D1 to D4. Ex. D1 and Ex. D4 were the receipts which acknowledged receipts of certain money. However, the same were found to be photo copies and the complainant when confronted with the said documents, had admitted the signatures. It transpires that the complainant when confronted with Ex. D1, had admitted that the signature appeared to be his, but, he denied the contents and it was also observed by the Court below that the document was photo copy and not an original and the explanation offered by the petitioner for having not produced the original was that it had been misplaced and therefore, photo copy duly attested by a Notary to the effect that it has been verified against the original, was sought to be produced. The court below has negated the said documents and has also rejected the explanation that the document was produced as secondary evidence, as original was lost. Accordingly, it convicted the petitioner and sentenced him to undergo imprisonment for a period of three months and imposed fine of Rs. 1,79,000/ -. The same having been challenged in an appeal, the Appellate Court had affirmed the judgment of the Trial Court. It is that which is under challenge in the present petition.

(3.) WHILE the learned counsel for the respondent -complainant would vehemently oppose the petition and would submit that the present petition is preferred in respect of the judgments which have arrived at concurrent findings on conviction and therefore scope of the revision petition is limited to questions of law, if any, or of jurisdiction which can be addressed and the primary contention that the documents which were sought to be produced in defence not having been accepted by the Trial Court, was illegal. However, it is pointed out that the Criminal Rules of Practice though do not specify that the original documents should be produced, it is always in the discretion of the Court and depending on the facts and circumstances in a criminal case, for a document to be marked as an exhibit and to be even considered in particular circumstance. The question whether the document relied upon by the petitioner in the present case on hand, was required to be produced in the original, cannot be in doubt for the reason that the proceedings are in the nature of quasi criminal proceedings and primarily relating to proof of its legal liability or otherwise. If it was the case of the petitioner that there was no legal liability outstanding by virtue of acknowledgments being issued on receipt of money by the respondent, it was incumbent on the petitioner to have produce the original document. Therefore, this would be so, if it was a suit for recovery and the document was sought to be relied upon in defence by the same analogy. Notwithstanding that the present proceeding is before a Criminal Court, the requirement of producing the document in original having been insisted upon by the court below and that the contention that the original was lost, not having been accepted cannot be found fault with and therefore would submit that there is no merit in the petition and the same be dismissed with costs.