Manchegowda vs H.S. Ramesh Rao

A.N. Venugopala Gowda

Heard Sri T. Basavaraj, learned Advocate appearing for the petitioner and Sri. K.A. Chandrashekara, learned Advocate appearing for the respondent and perused the record. Respondent filed complaint against the petitioner alleging commission of offence u/s 138 of N.I. Act. Case was registered in C.C.No. 875/2008, on the file of the JMFC at Mysore. Process was issued and the accused/petitioner appeared and pleaded not guilty. During trial, the complainant deposed as PW. 1 and marked Exs. P-1 to P-6. Accused was examined u/s 313 Cr.P.C. and it is a case of denial. No defence evidence was adduced. Appreciating the rival contentions with reference to the record of the case, learned Magistrate found the accused guilty and convicted for the offence u/s 138 of N.I. Act. The accused was sentenced to undergo simple imprisonment for three months and pay compensation of Rs. 1,20,000/- and in default, to undergo simple imprisonment for 10 days. Crl.A.No. 114/2009, filed in the Sessions Court at Mysore did not bring any relief to the accused, since the appeal was dismissed on 17.12.2009. Feeling aggrieved, the accused has filed this criminal revision petition.

Evidence on record would indicate that, Ex. P-1 was issued by the petitioner and his signature appears at Ex. P-1(a). Cheque, when presented for encashment, was returned with endorsements as is evident from Exs. P-2 and P-3. Within the time allowed, demand notice Ex. P-4 was served by the respondent-complainant on the petitioner-accused. Since the cheque amount was not deposited/paid, complaint was instituted. In support of the case pleaded in the complaint, complainant got himself examined as PW. 1. The burden of proof having been shifted to the accused, the defence sought to be made out by way of cross-examination of PW. 1 having been found to be improbable, learned Trial Judge by applying the presumption u/s 139 of the Act has held the petitioner-accused guilty. The record would show that the complainant has made out the ingredients of the offence u/s 138 of N.I. Act and the accused has failed to rebut the statutory presumption. In the circumstances, the findings recorded by the courts below with regard to the guilt of the accused is justified. No interference in the matter of conviction of the petitioner for the offence u/s 138 of N.I. Act is warranted.

The petitioner was convicted for the offence u/s 138 of N.I. Act. Keeping in view the nature of offence, the imprisonment ordered is unreasonable. Cheque having been issued for payment of Rs. 1,00,000/-, the cheque having bounced, petitioner ought to have been sentenced to pay fine and in default, to undergo simple imprisonment. Since the cheque was issued for payment Rs. 1,00,000/-, the sentence imposed on the petitioner is set aside and he is sentenced to pay fine of Rs. 1,10,000/-. Sri Basavaraj, submits that Rs. 60,000/- has already been deposited. The same be released in favour of the complainant. Petitioner is granted time up to 30.09.2012, to deposit the balance fine amount. If the fine amount is not deposited, the bail bond shall stand cancelled and the petitioner shall surrender before the trial Court and undergo simple imprisonment for six months. In case the balance fine amount is deposited or realised, the same be released in favour of the complainant as compensation.

Petition is disposed of accordingly.