CHAKRAVARTHY Vs. JAYAPRAKASH

JUDGEMENT

(1.) The petitioner is an accused in C.C.No.45 of 2013 for offence, under Section 138 of the Negotiable Instruments Act, 1881. The learned Judicial Magistrate, Fast Track Court, Kallakurichi, by judgment, dated 15.02.2019 in C.C.No.45 of 2013, convicted the petitioner and sentenced him to undergo one year Rigorous Imprisonment and to pay a fine of Rs.10,00,000/-, in default to undergo three months Rigorous Imprisonment, against which, he preferred an appeal in C.A.No.23 of 2019 before the learned III Additional District and Sessions Judge, Villupuram @ Kallakurichi. The petitioner filed a petition under Section 391 Cr.P.C to examine one Kalaiyarasi as additional witness with regard to Ex.R1 in C.M.P.No.415 of 2019 in C.A.No.23 of 2019. The learned III Additional District and Sessions Judge, Villupuram @ Kallakurichi, dismissed the said petition by order dated 23.07.2020, against which the present revision.

(2.) The brief facts of the case is that the petitioner borrowed a sum of Rs.10,00,000/- from the respondent, who was running Jaya TV Traders, by way of two cheques dated 02.06.2010 for Rs.6,00,000/- and Rs.4,00,000/-, totaling Rs.10,00,000/-. In discharge of his liability, the petitioner issued cheque bearing number 317362, drawn on Lakshmi Vilas Bank, Kallakurichi. When the said cheque was presented by the respondent for encashment in his bank viz., Karur Vysya Bank, Kallakurichi Branch on 13.08.2012, the same was returned for the reason "Exceeds Arrangement". The respondent caused statutory notice on 21.08.2012, which was received by the petitioner on 24.08.2012, the petitioner sent a reply on 29.08.2012, which was not acceptable to the respondent. Hence, the petitioner was prosecuted for offence under Section 138 of the Negotiable Instruments Act, 1881. During trial, the respondent examined himself as PW1; PW2 Cashier of PW1; PW3, Auditor of PW1; PW4, Manager of Karur Vysya Bank, Kallakurichi through whom, Exs.P1 to P10 were marked. On the side of the defence, DW1, the Bank Manager was examined and through whom Exs.D1 and D2 were marked.

(3.) The learned counsel for the petitioner submitted that the petitioner marked the copy of sale agreement dated 04.06.2010 as Ex.D1, which was entered between one Kalaiyarasi and the respondent. The petitioner issued Ex.P1/Cheque as security for Ex.D1. In pursuance to the sale agreement, the petitioner handed over signed blank cheque as security to help the said Kalaiyarasi, who is none other than the petitioner's sister in law. The trial Court observed in its judgment referring to Ex.D1, that the petitioner is not signatory to Ex.D1, it is signed by Srinivasan and Ramasamy a witnesses and they are not been examined as witnesses in the case. Further, with regard to Ex.D1, there is a civil dispute pending between the respondent and the said Kalaiyarasi. In view of the said observation made by the trial Court, the petitioner contended that the examination of said Kalaiyarasi and to let-in additional evidence through her becomes justifiable, giving such a reason a petition at the appellate stage under Section 319 Cr.P.C., filed by the petitioner, which was not entertained and dismissed, the Lower Appellate Court dismissing the petition is not proper.