N. Venkataramana Prabhu vs J.F. Castelino

A.V. Chandrashekara, J. - The present revision petition is filed under Section 397, Cr. P.C. challenging the judgment of conviction and sentence passed against the petitioner in C.C. 1403/03 by the V JMFC. Mangaluru, and affirmation of the same in Crl. A. 126/06.

The revision petitioner herein was the accused in C.C. 1403/03 and the respondent was the complainant. Parties will be referred to as complainant and respondent as per their ranking before the trial court. The accused is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to pay a sum of Rs. 3.00 lakhs. Out of the said amount, Rs. 2,95,000/- is ordered to be paid to the complainant as compensation.

The judgment dated 30.1.2006. passed in C.C. 1403/03 was called in question by the accused before the first appellate court, i.e. sessions court at Mangalore in terms of Section 374, Cr. P.C., which was withdrawn and transferred to Fast Track Court and numbered as Crl. A. 126/06. The said appeal is dismissed, confirming the judgment of conviction passed the trial court.

The facts leading to the filing of the present petition as follows:

(a) The complainant had purchased a property belonging to the accused and in that regard, an agreement of sale was executed on 26.10.1996, on which day accused had received Rs. 2.00 lakhs and acknowledged the same under the very agreement. A general power of attorney had also been executed along with the agreement of sale. There were tenants in the property and accused had agreed to evict them, But he could not get the tenants evicted and so he agreed to refund the amount of Rs. 2.00 lakhs and issued a cheque bearing number 572744 on 13.11.1999. drawn on Syndicate Bank, Bantwal Branch, favouring the complainant.

(b) On presentation, the cheque was dishonoured with the endorsement ''insufficient funds.'' Later on a legal notice was issued to him in terms of Section 138, N.I. Act calling upon him to make good the amount covered under the cheque. In spite of service of the legal notice, the. accused did not pay the amount and hence, a complaint was filed before the trial court. Complainant is examined as Pws-1 and 8 exhibits are got marked. Accused is examined and no documents are got marked.

The defence set up by the accused is that he had issued the cheque marked as Ex.PI for getting fixed deposit at M/s. Konkan Finance, and there was no monetary transaction between himself and the complainant. The learned Judge has come to the conclusion that the complainant has complied with all the provisions of Section 138, N.I. Act and that the cheque came to be issued in discharge of an existing debt and on presentation to the bank, it was returned for want of sufficient funds. It is in this regard the trial court has convicted the accused.

The first appellate court has re-assessed the entire evidence placed on record and has come to the conclusion that the accused had issued the cheque in regard to the sum of Rs. 2.00 lakhs received by him under the agreement of sale and therefore the judgment of conviction and sentence is proper.

Heard Mr. Bipin Hegde for the revision petitioner and Sri P.P. Hegde for the respondent-complainant.

After going through the records, the following points arise for the consideration of this court:

(1) Whether the trial court has committed any perversity or illegality in convicting the accused for the offence under section 138, N.I. Act?

(2) Whether imposition of Rs. 3.00 lakhs as fine is justified?

(3) Whether any interference is called for and if so to what extent?

Reasons

Point No.(l); The case of the complainant, as projected before the trial court, is that he had entered into an agreement of sale with the accused on 26.10.1996 to purchase a property measuring nine cents in No. 4/3A, Mooda village, Bantwal Taluk. The said agreement marked as Ex. P5 is signed by the accused and his signature is found at P5(a). This document specifically discloses that the purchaser, i.e. complainant had paid Rs. 2.00 lakhs by cash to the intending seller, i.e. accused. In paragraph 4 of Ex. P5, it is seen that the seller had agreed to repay Rs. 2 00 lakhs with interest at 18% per annum in case he were to fail in executing regular sale-deed. Apart from this, he had agreed to pay Rs. 1.5 lakhs as damages.

This court does not want to go into the details as to why the accused could not execute regular sale-deed. It may be true that he was not able to get the tenants evicted and thereafter execute the sale-deed, but that lid not come in the way of the seller to repay the sum of Rs. 2 lakhs received from the intending purchaser. It is in this regard the cheque was issued by him in favour of the complainant which is marked as Ex.PI and his signature is found at Ex.PI (a).

There is a statutory presumption under Section 118 (a), N.I. Act that a cheque is always drawn for consideration. Section 139 mandates that a cheque is issued either in discharge of a partial or whole debt. Nothing is placed on record to rebut the statutory presumptions available as noted above. The defence on behalf of the accused is that he bad issued the cheque in favour of the complainant for Rs. 2.00 lakhs to get a fixed deposit receipt from M/s. Konkan Finance, of which the complainant was the director. If really the cheque had been issued in favour of M/s. Konkan Finance,, it would not have been issued the name of the complainant. On the other hand, it would have been issued in favour of M/s. Konkan Finance, a private limited company, of which the complainant was the director. Nothing is placed on record to show that M/s. Konkan Finance was still functioning in the year 1999 when the cheque was issued.

Suffice to state that the accused has failed to probablise the defence setup on ids behalf. As already stated, the presumption available under Sections 118(a) and 139, N.I. Act has remained unrebutted. Accordingly point No. 1 is answered in the negative.

Point No.(2): Insofar as punishment is concerned, the maximum sentence of imprisonment can extend up to 2 years if it is tried as a summon case and fine can be twice the cheque amount. In the present case, the learned Judge has imposed a fine of Rs. 3.00 lakhs and it is far below Rs. 4 lakhs which is twice the amount covered under the cheque. The case was filed in the year 2000 and numbered as C.C. 1403/03. The case ended in conviction of the accused in January, 200''). Taking into consideration the gap of almost 5 years, the learned Judge is justified in imposing fine of Rs. 3.00 lakhs and the same can neither be said to be excessive nor exorbitant.

Apart from this, the learned Judge has not imposed any sentence of imprisonment on the accused-petitioner. In this view of the matter, the learned Judge of the trial court has adopted a lenient approach and therefore no interference is called for. The first appellate court has also re-assessed the entire evidence by writing a detailed judgment, and no perversity or illegality is found in the approach of the trial court or the first appellate court. Accordingly, revision petition is to be dismissed.

In the result the following order is passed:

ORDER

The revision petition is dismissed, confirming the judgment of conviction and sentence passed by the trial court and the first appellate court.