Karnataka High Court
Mr Vittal Poojary vs Pilikula Golf Club Mangalore on 8 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 644 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 644 OF 2017
BETWEEN:
1. MR. VITTAL POOJARY
S/O BOOBA POOJARY
AGED ABOUT 65 YEARS
R/AT MOODUSHEDDE
VAMANJOORU
MANGALURU-575028
...PETITIONER
(BY SMT. SANDHYA U. PRABHU, ADVOCATE)
AND:
1. PILIKULA GOLF CLUB MANGALORE,
VAMNJOOR, MANGALORE, D.K.
Digitally signed A REGISTERED SOCEITY
by DEVIKA M REPRESENTED BY ITS
Location: HIGH DULY AUTHORIZED CAPTAIN
COURT OF MR. EUGENE RENT
KARNATAKA
AGED ABOUT 75 YEARS
S/O MR. GEORGE RENT
R/AT LOURDES VIVEKANANDA ROAD
PADAV, MANGALORE-575004.
...RESPONDENT
(BY SRI. DHEERAJ, ADVOCATE FOR
SRI. O. SHIVARAMA BHAT, ADVOCATE)
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CRL.RP No. 644 of 2017
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C OF PRAYING TO SET ASIDE THE ORDER DATED
29.09.2012 PASSED BY THE J.M.F.C.(IV COURT), MANGALORE
IN C.C.NO.2938/2008 AND SET ASIDE THE ORDER DATED
30.1.2017 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, D.K., MANGALURU IN CRL.A.NO.296/2012
OF DISMISSING THE APPEAL FILED BY THE PETITIONER.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
1. Heard the learned counsel for revision petitioner
and also the counsel for respondent. This matter is listed
for admission and records are secured from the Trial Court
and First Appellate Court.
2. The revision petition is filed against the
concurrent finding of the Trial Court and Trial Court
convicted the petitioner for offences punishable under
Section 138 of Negotiable Instruments Act directing to
take compensation of Rs.1,97,000/- out of that Rs.2,000/-
shall vest with the State and remaining amount of
Rs.1,95,000/- is payable to the complainant. Having
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considered the material available on record, particularly
Ex.P1 to Ex.P11 and the petitioner has not lead any
rebuttal evidence as against the evidence of the
complainant and also not produced any document before
the Trial Court. Being aggrieved by the said order, an
appeal is filed in Crl.A.No.296/2012 and the appellate
Court having re-assessed the material available on record,
confirmed the order of the Trial Court and the Trial Court
did not accept the contention of the appellant/revision
petitioner since an authorization is given to the PW1 and
also an observation is made that Section 302 of Cr.P.C is
akin to the Section 205 of Cr.P.C. The complainant is
society represented by Eugene Rent and a person
authorized by Eugene Rent is examined as PW1 and not
accepted the contention of the revision petitioner herein.
Being aggrieved by the concurrent finding, the present
appeal is filed.
3. The main contention of the learned counsel for
the petitioner is that the Trial Court has not given proper
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opportunity to the petitioner to defend the case and the
Trial Court passed the impugned order without applying
mind. The contention of the petitioner is that the
respondent has misused the blank cheque and putforth a
false claim against the petitioner. It is also contended that
the Trial Court failed to take note of the fact that the
respondent failed to produce the necessary documents to
show that it is a registered society, who has been
authorized by the respondent-society to represent, depose
and prosecute the case and P.W.1 is not the authorized
person to give evidence and also challenged the
competence of P.W.1 to give evidence before the Trial
Court in the revision petition.
4. Per contra, learned counsel for the respondent
would submit that Ex.P1 is the document of authorization
given by P.W.1, the person, who was authorized on behalf
of the complainant and the document is also marked
before the Trial Court and not disputed the document of
Exs.P2, P3 and P4 and also not led any rebuttal evidence
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as against the evidence of complainant. Learned counsel
also submits that these cheques are issued with regard to
misappropriation of funds of the club, since the petitioner
was working as Manager of the club and also given letters
in terms of Exs.P9 and P10 and the same bears the
signature of the petitioner herein. Having considered both
oral and documentary evidence placed on record, the Trial
Court and the Appellate Court rightly convicted the
petitioner and it does not require any interference.
5. Having heard learned counsel for the petitioner
and learned counsel for the respondent and also the
material available on record, particularly on perusal of the
complaint, the complaint is filed by the duly authorized
person of the club i.e., Captain Mr. Eugene Rent and he in
turn given authorization to P.W.1 to appear before the
Court and given evidence and also produced the
documents before the Trial Court. Hence, he has been
examined as P.W.1 before the Trial Court. Having perused
the material on record, the complainant got marked the
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documents of Exs.P1 to P11 and no rebuttal evidence is
placed before the Trial Court by the petitioner herein and
even, he did not choose to enter into the witness box to
deny the case of the complainant and on appreciation of
both oral and documentary evidence placed on record, the
Trial Court convicted the petitioner and even the very
same ground was urged before the Appellate Court.
6. The Appellate Court also taken note of the
judgment in JIMMY JAHANGIR MADAN VS. BOLLY
CARIYAPPA HINDLEY (DEAD) BY L.Rs. reported in
2004 (12) SCC 509 rendered by the Apex Court, wherein
it is observed that when original complainant was dead
and legal representatives authorized their power of
attorney holder to prosecute the proceedings, it was held
that the authority to conduct the case by the power of
attorney holder require the leave of the Court under
Section 302 of Cr.P.C. In the case on hand, the
complainant is a club represented by Mr. Eugene Rent,
who was duly empowered to prosecute by the resolution of
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the society. Though effort is made by the learned counsel
for the appellant to contend that the authority to
prosecute by Mr. Eugene Rent is doubtful in view of the
cross-examination of P.W.1 and the same cannot be
accepted, since Ex.P8 is not disproved by the accused as
the accused could have summoned the secretary to
disprove Ex.P8. Moreover, such averment is available in
the complaint itself, since Ex.P8 is the resolution. Apart
from that, consequent upon the resolution in terms of
Ex.P8, Ex.P1 was issued to P.W.1 by the very authorized
Person Mr. Eugene Rent. When such being the case, both
the Courts considered the said material available on
record. When such material is available before the Court,
particularly Ex.P8 and Ex.P1, Ex.P8 is the resolution
passed by the very club authorizing the person, who was
permitted to file the complaint and in turn, he had
executed authorization in favour of P.W.1 to give evidence
before the Court and the Appellate Court also taken note
of the said contention and the very contention that P.W.1
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is not a competent person to give evidence cannot be
accepted.
7. Apart from that the petitioner has not led any
rebuttal evidence as against the complainant and the
material on record discloses that those cheques are issued
towards misappropriation of the funds of the club and
petitioner also not disputed issuance of cheques. When no
rebuttal evidence before the Court, the very contention of
the learned counsel for the petitioner cannot be accepted
and the scope and ambit of the revision is limited and no
perversity is found in the findings of the Trial Court and
Appellate Court and the very same ground is urged before
the Appellate Court and the Appellate Court has also taken
note of Ex.P1 and Ex.P8. Hence, the very contention of
the learned counsel for the petitioner that P.W.1 is not a
competent person cannot be accepted and there is no
merit in the revision petition.
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8. In view of the discussion made above, I pass
the following:
ORDER
The criminal revision petition is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS,ST
