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2025 DAILYLAW 26299 (KAR)

MR VITTAL POOJARY v. PILIKULA GOLF CLUB MANGALORE

CRL.RP/644/2017 · 2025-01-08

H P Sandesh

Public Interest Litigationbody2025

Judgment text

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- 1 - NC: 2025:KHC:610 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. A REGISTERED SOCEITY REPRESENTED BY ITS DULY AUTHORIZED CAPTAIN MR. EUGENE RENT 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) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:610 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 - 3 - NC: 2025:KHC:610 CRL.RP No. 644 of 2017 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 - 4 - NC: 2025:KHC:610 CRL.RP No. 644 of 2017 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 - 5 - NC: 2025:KHC:610 CRL.RP No. 644 of 2017 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 - 6 - NC: 2025:KHC:610 CRL.RP No. 644 of 2017 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. 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 - 7 - NC: 2025:KHC:610 CRL.RP No. 644 of 2017 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 - 8 - NC: 2025:KHC:610 CRL.RP No. 644 of 2017 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. - 9 - NC: 2025:KHC:610 CRL.RP No. 644 of 2017 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 List No.: 1 Sl No.: 33