M.P. Venkatesh vs M. Jayaram

K.N. Keshavanarayana, J.—In this Revision Petition tiled u/s 397 of Code of Criminal Procedure, the Petitioner has questioned the legality and correctness of the concurrent judgment of the Courts below convicting him for the offence punishable u/s 138 of the Negotiable Instruments Act (for short. ''N.I. Act'') and sentencing him to pay compensation of Rs. . 3,10,000/- and fine of Rs. . 5,000/-.

The Respondent-complainant filed the complaint against the Petitioner herein alleging the offence u/s 138 of the N.I. Act interlaid contending that on 22.01.2002, the Petitioner herein obtained loan of Rs. . 2,50,000/- from him to meet his legal necessities and for discharge of the said debt, he issued the cheque in question for Rs. .3,10,000/- on 30.01.2004 and when the said cheque was presented for encashment, the same came to be returned unpaid with the Banker''s endorsement ''Funds Insufficient'' and in spite of service of notice, the Petitioner herein has failed to pay the amount covered under the cheque. The Petitioner upon service of summons appeared before the learned Magistrate and pleaded not guilty for the accusation made against him and claimed to be tried. After the complainant led evidence, the Petitioner-accused was examined u/s 313 of Code of Criminal Procedure, wherein, though he denied all the incriminating circumstances appearing against him, he further stated that, he has paid Rs. . 1,40,000/- towards interest and that by force the cheque in question was obtained from him. However, the Petitioner-accused did not choose to lead any defence evidence.

The learned Magistrate on consideration of the oral as well as documentary evidence, by the judgment dated 17.11.2007 convicted the Petitioner for the offence punishable u/s 138 of the N.I. Act and directed him to pay compensation of Rs. . 3,10,000/-and fine of Rs. . 5,000/-. The said judgment of conviction and order of sentence was affirmed by the Sessions Judge in Criminal Appeal No. 377/2007. It was against these concurrent judgment of the Courts below, the Petitioner is before this Court in this revision petition.

I have heard the learned Counsel appearing for the Petitioner as also the learned Counsel appearing for the Respondent. Perused the records.

Perusal of the judgments under revision indicates that both the Courts below on appreciation of oral evidence have recorded a finding that the complainant has proved beyond reasonable doubt that the Petitioner herein borrowed a sum of Rs. . 2,50,000/- on 22.01.2002 and for the discharge of the said debt, the Petitioner issued the cheque and the said cheque was returned unpaid when presented for encashment on account of insufficient funds in the account and that in spite of service of notice, the Petitioner herein has failed to pay the amount covered under the cheque, as such, the Petitioner is guilty of the offence punishable u/s 138 of the N.I. Act. Though the learned Magistrate was empowered to impose fine equivalent to double the amount covered under the cheque, the learned Magistrate imposed fine of Rs. . 5,000/- and directed the Petitioner to pay compensation of Rs. . 3,10,000/- to the complainant

I have carefully examined the records. There is no dispute and it cannot also be disputed by the Petitioner that the cheque in question relates to the account held by him with the Banker and it bears his signature. The answer given by the Petitioner during his examination u/s 313 of Code of Criminal Procedure to the effect that he has paid Rs. . 1,40,000/- towards interest clearly indicates that there was monetary transaction between him and the complainant. The evidence of the complainant clearly establishes that the Petitioner herein borrowed a sum of Rs. . 2,50,000/- from the complainant. Though the Petitioner sought to contend that by force the cheque in question was obtained from him he has not placed any evidence to substantiate the said contention. Perusal of the cross-examination of PW.1 would go to show that during the cross-examination not even a suggestion was made to PW.1 that the cheque in question was obtained by him from the Petitioner-accused by force. Thus the defence plea is neither probable nor acceptable. The Courts below having regard to the facts and circumstances of the case have rightly drawn presumption u/s 139 of the N.I. Act to the effect chat the cheque in question had been issued for the discharge of the debt due by the Petitioner-accused to the Respondent-complainant. The Petitioner herein has not rebutted the said presumption. The evidence on record further clearly establishes that the Respondent-complainant has complied with all other requirements to constitute the offence u/s 138 of the N.I. Act. Admittedly, the notice as required u/s 138(b) of the N.I. Act was served on the Petitioner-accused and within the statutory period, the Petitioner has not complied with the demand made therein. Therefore, in my considered opinion, the Courts below have not committed any error in holding the Petitioner guilty of the offence punishable u/s 138 of the N.I. Act. The judgment of the Courts below does not suffer from any perversity or illegality. The learned Counsel for the, Petitioner is not in a position to point out any error of law or jurisdiction committed by the Courts below. Having regard to the amount covered under the cheque, the sentence of fine and the direction to pay compensation cannot be termed either as excessive or as irrational. In this view of the matter, I find no merit in any of the grounds or the contentions urged. Therefore, the petition is dismissed.