Mr. Praveen Kumar vs Mr. Surendra Hegde

A.N. Venugopala Gowda

Petitioner faced prosecution upon a complaint filed by the respondent which was registered as C.C. No. 3079/2008, in the Court of J.M.F.C. (IV Court), Mangalore. The complaint was filed alleging commission of an offence punishable under S. 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). Accused, in response to summons appeared and pleaded not guilty, when the accusation was put to him by the learned Magistrate. During trial, complainant got himself examined as PW-1 and marked Exs. P1 to P7. Accused was examined under S. 313 Cr.P.C. and later he got himself examined as DW-1. Considering the rival contentions and the record, petitioner was found guilty. By a Judgment dated 21.04.2009, petitioner was convicted for the offence under S. 138 of the Act and sentenced to pay fine of Rs. 2,05,000/-, in default, to undergo S.I. for a period of 8 months. Crl.A. No. 200/2009 filed by the accused in the Sessions Court, Mangalore, was dismissed by a Judgment dated 08.03.2010. This revision petition is directed against the said Judgments and Orders. Learned advocate appearing for the petitioner, contended that the ingredients of the offence under S.138 of the Act has not been established and hence, the judgment of conviction and order of sentence passed by the learned Trial Judge and affirmed by the learned Appellate Judge are illegal and hence, interference in the matter is warranted.

Learned advocate appearing for the respondent, on the other hand, supported the impugned Judgments and sought dismissal of the criminal revision petition.

In view of the rival contentions and the record of the case, the points for consideration are:

(i) Whether the ingredients of the offence enumerated under S. 138 of the Act has been met and

(ii) If so, whether the accused was able to rebut the statutory presumption contemplated under S.139 of the Act?

Respondent - complainant had advanced Rs. 1,50,000/- to the petitioner - accused on 28.11.2004. Towards repayment, petitioner issued cheque - Ex. P1 dated 01.09.2005. Ex. P1 was returned by petitioner''s bank with endorsement ''funds insufficient'' - Ex. P2. Demand notice is at Ex. P3. Demand notice was sent by RPAD to the two addresses of the petitioner - accused i.e., Exs. P4 and P5. Cheque amount was not paid and hence, the complaint was filed. The availing of loan amount of Rs. 1,50,000/- by the petitioner from the respondent on 28.11.2004 is evident from an agreement and a demand promissory note vide Exs. P6 and P7 respectively. In view of the above, the ingredients of the offence enumerated under S. 138 of the Act has been met. The burden of proof having got shifted to the petitioner - accused, it is for him to rebut the statutory presumption contemplated under S. 139 of the Act. The accused got himself examined as DW-1. The defence is that, his son-in-law Mr. Arhath and the complainant had started hotel business in Bangalore and at that point of time, there was no bank account of his son-in-law and he received cheque from the complainant and credited to his account and gave the amount to his son in law Mr. Arhath. To prove the said assertion, the accused - petitioner did not examine Mr. Arhath. The defence is improbable, since the obtaining of loan amount of Rs. 1,50,000/- on 28.11.2004 by execution of Exs. P6 & P7 being not in dispute, it was for the accused to have produced credible evidence in proof of the assertion made that Rs. 1,50,000/- received by him on 28.11.2004 under a cheque from the complainant was the one payable by the complainant to Mr. Arhath i.e., son-in-law of the accused. The defence sought to be put forth has not been established. The petitioner - accused has failed to rebut the statutory presumption under S. 139 of the Act.

In view of the above, the Courts below are justified in holding the petitioner guilty of the offence under S. 138 of the Act. The concurrent findings recorded by the Courts below having the support of credible evidence are neither perverse nor illegal warranting interference in exercise of revisional jurisdiction.

In the result, the conviction of the petitioner under S. 138 of the Act is maintained. Revision petition being devoid of merit, is dismissed.

However, the petitioner is granted time till 31.12.2012 to deposit the fine amount in the Trial Court. If any amount has been deposited, the same be released to the complainant and the balance amount be deposited before 31.12.2012.

In case of default, the bail bond and the surety bond shall stand cancelled and the petitioner shall surrender before the Trial Court to serve the jail sentence.