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2022 (4) TMI 554 - KARNATAKA HIGH COURTDishonor of Cheque - funds insufficient - existence of liability on the part of petitioner or not - enhancement in the fine amount - Whether this Court can exercise the revisional jurisdiction in coming to the conclusion that the Trial Court has committed an error in appreciating the material on record and the Appellate Court has committed an error in dismissing the appeal filed by the petitioner and allowing the revision petition filed by the respondent? - HELD THAT:- The Appellate Court while confirming the order of the Trial Court though discussed in detail, not accepted the defence theory of the petitioner and in paragraph No. 17 comes to the conclusion that the accused has issued a cheque in favour of the complainant for returning of the advance amount. It was presented by the complainant through his advocate and it was returned for insufficient funds and inspite of demand notice, he has failed to pay the amount. The Appellate Court in paragraph No. 18 of the judgment comes to the conclusion that the learned Magistrate has appreciated both oral and documentary evidence on record in proper, legal manner and reached to the correct conclusion and there is no illegality or irregularity. But, both the Courts failed to take note of the fact that D.W.1 in his cross-examination says that he made the payment of ₹ 1,00,000/- in favour of the counsel for the complainant and the advocate kept the amount in his scooter and without returning the cheque, he ran away from the spot and he also admits the shara in Ex.D.1. No complaint is filed against the counsel for the complainant when he has received ₹ 1,00,000/- and he ran away from the spot. It is only a oral evidence and no material is placed for having paid the amount to the learned counsel for the complainant to the tune of ₹ 1,00,000/-. It is important to note that in the cross-examination of D.W.1, a suggestion was made by the counsel for the complainant that he sold the quarry worth of ₹ 1,50,000/- and out of ₹ 1,50,000/-, he retained the royalty amount of ₹ 50,000/- and paid the amount of ₹ 1,00,000/- on 05.05.2006 in terms of endorsement made in Ex.D.1 and the said suggestion is denied. There is an endorsement with regard to having made the payment of ₹ 1,00,000/-. It has to be noted that it is the transaction of the year 2005 and the Trial Court while awarding penalty amount is concerned, only awarded the cheque amount. It is already pointed out that for having paid ₹ 1,00,000/- is not given any deduction since the payment is subsequent to the issuance of the subject matter of the cheque and the Appellate Court also failed to take note of this aspect. When such being the material available on record, the Appellate Court committed an error in entertaining the revision petition and enhancing the fine amount to ₹ 5,25,000/-. But, there are no ground to acquit the petitioner as contended by the learned counsel for the petitioner and the very contention that both the Courts have committed an error also cannot be accepted. Though the petitioner contend that an amount of ₹ 2,50,000/- was paid in favour of one Muthu, the same has not been proved by examining Muthu and hence there are no merit in the revision petition filed by the revision petitioner with regard to conviction and sentence against the Trial Court judgment. But, there is a force in the contention of the learned counsel for the petitioner with regard to Crl.R.P. No. 02/2013 is concerned, wherein the Revision Court enhanced the fine amount to ₹ 5,25,000/- and it requires interference of this Court since the Appellate Court has not taken note of the payment of ₹ 1,00,000/- as discussed. The judgment of conviction passed by the Trial Court is upheld and the enhancement of fine amount by the Appellate Court is hereby set aside - petition dismissed.
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