NASREEN PASHA Vs. MALIK AHMED

JUDGEMENT

(1.) The Revision Petitioner has preferred this Revision Petition seeking to set aside the judgment passed by the JMFC, Gubbi, in CC No. 439/2008 dated 25.8.2012, which is affirmed in Criminal Appeal No. 124/2012 dated 20.11.2015 passed by the VI Addl. Dist. and Sessions Judge, Tumkur, for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881, and imposed sentence of Simple imprisonment for six months and also fine of Rs. 1,60,000.00 with a default clause to undergo Simple imprisonment for a period of one month and also awarding an amount of Rs. 1,50,000.00 as compensation payable to the complainant out of the fine amount.

(2.) The petitioner being the accused has taken up the ground that, the trial Court as well as the first appellate court have not taken into consideration the evidence led by the parties in their proper perspective. The trial Court has committed serious error in not appreciating the evidence and failed to hold that the complainant has failed to prove the ingredients of Sec. 138 of the Negotiable Instruments Act, 1881. It is contended that the accused throughout has denied the non-service of notice as required to be served u/S. 138 of the Negotiable Instruments Act, 1881. Secondly he has taken up a specific contention that the signature found on the cheque produced by the complainant under Ex.P-1 is not that of the accused. It is further contended that, the petitioner has filed an application u/S.45 of the Indian Evidence Act, before the first appellate court requesting to refer the said cheque for handwriting expert's opinion. But the first appellate court has refused to consider the said application and erroneously rejected the same. The trial Court and the first appellate court have taken the place of the expert and they compared the signatures in the cheque with other admitted signatures of the accused in the vakalath and statement of the accused recorded u/S.313 of Crimial P.C. and came to the conclusion that the complainant has proved his case particularly the signature at Ex.P1(a) as that of the accused. The said finding is against to the principles of natural justice, as no opportunity has been granted to the accused to prove his defence. Both the courts have wrongly held that the accused has not taken any steps to prove the defence taken up by her. Therefore, for all these reasons, the petitioner's counsel would argue before this Court in support of the said contentions and submitted that the Revision Petition deserves to be allowed and accused/petitioner is entitled to be acquitted and therefore, he requested the court to set aside the judgment passed by the trial Court and as affirmed by the first appellate court. Alternatively he also argued that, application filed by the petitioner u/S.45 of the Indian Evidence Act before the appellate court may be allowed and matter may be remitted to the trial Court for fresh disposal, with appropriate directions.

(3.) Per contra, the learned Counsel appearing for the respondent-complainant strenuously contended that, the complainant has established the case not only by narrating the factual aspects in the complaint but also proving the same by producing cogent and convincing evidence before the court. There are lapses on the part of the accused, as she has not made any such application u/S.45 of the Indian Evidence Act before the trial Court nor she has placed any material to show that the said signature is not that of the accused. The evidence of the complainant and PW-2 who is the Bank Manager amplifies and probabalises that, the said signature at Ex.P-1(a) belongs to the accused. Therefore, the trial Court as well as the first appellate court have not committed any error in appreciating the evidence on record. The notice issued to the accused was also deemed to have been served on the accused. Hence, the trial Court has properly appreciated this aspect. Therefore, there is no ground made out before this Court to interfere with the judgment of conviction and sentence passed by the trial Court as affirmed by the first appellate court.