K.S. Bhaskar Shetty vs B.A. Chandrashekar

A.S. Pachhapure

The petitioner has challenged the concurrent findings of his conviction and sentence for the offence punishable u/s 138 of the Negotiable Instruments Act [hereinafter referred to as "the Act" for short].

The facts relevant for the purpose of this revision are as under:

The petitioner is the accused, whereas the respondent is the complainant before the trial Court. The accused took an amount of Rs. 2,60,000-00 on 30.10.2005 from the complainant and towards repayment of the said amount, issued a cheque dated 02.12.2005 and when it was presented for encashment, it returned with an endorsement of insufficient funds. The complainant issued a notice and also served notice by hand, but There was no compliance of the demand made. In these circumstances, a complaint came to be lodged by the complainant before the trial Court to initiate action against, the accused for the offence punishable u/s 138 of the Act.

During the trial, the complainant was examined as P.W.1 and in his evidence, documents Exs.P1 to 8 were marked. The statement of the accused was recorded u/s 313 Cr.P.C. The accused examined himself as D.W.1 and no documents were produced.

The trial Court after hearing the learned counsel for the parties and or: appreciation of the material on record, awarded a fine of Rs. 3, 60,000-00, in default to undergo simple imprisonment for one year. An amount of Rs. 3,40,000-00 was ordered to be paid as a compensation to the complainant and the remaining amount was ordered to be credited to the State. Aggrieved by the conviction and sentence, the accused approached the first appellate Court in Cri.A. No. 837/2008, which also came to be dismissed. Aggrieved by the concurrent finding of the Courts below, the present revision petition has been filed.

I have heard the learned counsel for both the parties.

It is the submission of the learned counsel for the petitioner that the petitioner has not availed the loan facility from the respondent and that the respondent had received the blank cheque as a security, and no demand notice was served upon him. He has also disputed the signature on the notice-Ex.P7.

Per contra, the learned counsel for the respondent has supported the Judgment and Orders of the Courts below.

Ex. P1 is the complaint lodged by the respondent, whereas Ex.P2 is the cheque. Exs.P3 and 4 are the endorsement issued by the bank for returning the cheque for insufficient funds. Ex. P5 is the promissory note. Ex.P6 is the receipt regarding payment of the loan amount. As could be seen from the evidence of P.W.1, he has stated that he advanced the loan amount to the petitioner and at that time, towards repayment of the loan, the petitioner has issued the cheque-Ex. P2 and also executed the documents Exs. P5 and 6. The scrutiny of Exs.P2, 5 and 6 reveal that the respondent had advanced the loan of Rs. 2,60,000-00 to the petitioner. The signature on the cheque is not in dispute. In addition to the cheque, the respondent has produced Exs.P6 and 7. The scrutiny of the evidence and the documents Exs. P6 and 7 reveal that the signatures are similar. In the circumstances, material placed on record is sufficient to raise the presumption u/s 139 of the Act. It has to be inferred that the cheque was issued by the petitioner to the respondent towards discharge of the liability and a presumption also arose with regard to the existence of the debt.

In the context of the evidence of P.W.1, it is necessary to find out as to whether the petitioner is able to rebut the presumption that arose. Ex.P7 is the copy of the notice and Ex.P8 is the unserved postal cover sent by registered post. As the petitioner was not present at the time when the notice was taken out by the respondent, an intimation was left at the residence. Even otherwise as could be seen from Ex.P7, the petitioner has received the notice and accordingly has put his signature on the said notice. D.W.1, the petitioner herein has admitted his signature on Ex.P7. So, the service of notice to the petitioner has been proved satisfactorily and there was no reply to this notice by him. When he could have taken a specific defence at the earliest point of time, he did not avail the opportunity Hence, an adverse inference could also be drawn against the petitioner. Though the petitioner is examined as D.W.1, except stating that he had signed blank documents like cheque and the promissory note and that he has not served with the notice, there is no material in his evidence to rebut the presumption that arose. In such circumstances, the oral evidence of the petitioner is of no help to him. Both the Courts below have taken into consideration the material placed on record and in the context of the provisions of Section 139 of the Act and as the petitioner did not rebut the presumption, have come to the conclusion in awarding conviction and also sentence of fine. There is no glaring error or an inherent defect in the proceedings.

This is a revision and the scope is limited. This Court cannot reappreciate the evidence unless the petitioner makes out a case of glaring error or inherent defect. Hence, his conviction has to be upheld. So far as the quantum of fine is concerned, the loan advanced 13 Rs. 2,60,000-00 and the trial Court has ordered fine of Rs. 3,60,000-00, the transaction took place in the year 2005. In the circumstances, I do not think that there is any necessity to interfere even with regard to the quantum of fine. In that view of the matter, I proceed to pass the following:

ORDER

The revision petition is allowed in part. The fine amount is reduced to Rs. 3,55,000-00. On deposit of the fine, an amount of Rs. 3,40,000-00 shall be paid to the respondent 3rd an amount of Rs. 15,000-00 shall be credited to the State. Liberty is reserved to the petitioner/accused to pay the amount of fine within two months from the date of receipt of the Order, failing which the respondent is at liberty to enforce the Order.