Abdulla Baig @ Zameer vs R. Prakash

A.N. Venugopala Gowda

Petitioner faced prosecution for the offence under S. 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act'') in C.C. No. 5932/2010 on the file of XII ACMM, Bangalore City. Considering the evidence brought on record by both sides, learned Magistrate found the accused guilty. On 15.02.2012, petitioner was convicted for the offence punishable under S. 138 of the N.I. Act and was sentenced to pay fine of Rs. 35,000/-, in default, to undergo S.I. for 6 months. Out of the fine amount, the complainant was held entitled to Rs. 30,000/- as compensation. Crl. A. No. 158/2012 filed in the Sessions Court, Bangalore City was dismissed by Judgment dated 06.08.2012. Assailing the said Judgments and Orders, the accused has filed this criminal revision petition. Learned advocate for the petitioner by placing reliance on the decision in ANEETA HADA Vs. M/S. GODFATHER TRAVELS & TOURS PVT. LTD. reported in 2012 AIR SCW 2693, contended that in the absence of the firm whose cheque is the subject matter of consideration, the complaint filed is not maintainable and the conviction of the petitioner is illegal. Alternatively, Learned Counsel contended that the cheque having been issued for payment of only Rs. 30,000/- and hence, the fine of Rs. 35,000/- levied is irrational.

Perused the record. The complaint filed before the Trial Court shows that the petitioner approached the complainant for financial assistance to carry on his business and availed loan of Rs. 30,000/- on 01.02.2008. Towards repayment of the said loan, petitioner issued the cheque Ex. P1. The cheque having been bounced for want of sufficient funds as is clear from Ex. P2, demand notice Ex. P3 to pay the cheque amount was issued both by RPAD and Certificate of Posting. Cheque amount having not been paid, complaint Ex. P6 was filed. Complainant got himself examined as PW-1. Accused - petitioner got himself examined as DW-1 and marked three documents. Since issuance of Ex. P1 and signature of the accused on it is not now in dispute and the cheque having been returned by the bank with endorsement ''funds insufficient'', a demand having been made by issue of notice within the time limit for payment of cheque amount and complaint having been filed within time, the ingredients of the offence under S. 138 of the Act was met. The burden having been shifted to the accused in view of presumption under S. 139 of the Act, the evidence of accused/DW-1 being formal and defence having not been probablised, the statutory presumption having not been rebutted, the learned Magistrate is justified in holding the petitioner guilty of the offence under S. 138 of the Act. Both the Courts below have concurrently found the petitioner guilty of the offence under S. 138 of the Act, since issuance of cheque Ex. P1, its return for the reason ''funds insufficient'' and service of legal notice Ex. P3 are well established. The cheque in question having been issued by the petitioner and not by the partnership firm, the liability to pay the cheque amount being on the petitioner only and not the partnership firm, the decision reported in 2012 AIR SCW 2693 has no application to the instant case. The findings recorded by the Courts below in the impugned Judgments are neither perverse nor illegal; nor is there any jurisdictional error committed in deciding the matters i.e., criminal case and the appeal. No case is made out to interfere with the judgment of conviction for the offence under S. 138 of the Act. Ex. P1 was issued for payment of Rs. 30,000/-. The cheque was not honoured by the petitioner''s bank. The learned Magistrate has directed payment of fine amount of Rs. 35,000/-, out of which Rs. 30,000/- to be paid to the complainant as compensation. There is no evidence on record showing that the petitioner is a habitual offender and has been convicted for similar offence on an earlier occasion. In the circumstances, the fine ordered to be paid is excessive and hence, interference with regard to the sentence of fine is warranted.

In the result, the conviction of the petitioner for the offence under S. 138 of the Act is maintained. The sentence of fine imposed on the petitioner is modified. He is sentenced to pay fine of Rs. 30,500/-, Learned advocate appearing for the petitioner submits that Rs. 15,000/- has already been deposited in the Trial Court. If that be so, the petitioner shall deposit the balance fine amount in the Trial Court.

Two months'' time is granted for the petitioner to deposit the balance fine amount in the Trial Court.

The amount in deposit be released to the complainant forthwith.

If the balance fine amount is deposited within two months from today, Rs. 15,000/- be released to the complainant and Rs. 500/- forfeited to the State.

In default of payment of balance fine amount, the petitioner shall surrender before the Trial Court to serve the sentence.