N.C. Mruthunjaya vs M.K. Srikanta

Pradeep D. Waingankar, J.—This Criminal revision petition is filed u/s 397 r/w Section 401 of Cr.P.C. questioning the legality and correctness of the order dated 24.11.2008 passed by Civil Judge(Jr. Dn.) and JMFC, Mandya in C.C. No. 1011/2005 and the order dated 19.11.2010 passed by Prl. Sessions Judge, Mandya in Crl. A. No. 124/2008.

I have heard both the learned counsel for the revision petitioner and the respondent.

The revision petitioner was the accused and the respondent was the complainant in C.C. No. 1011/2005 on the file of Prl. Civil Judge(Jr. Dn.) and JMFC, Mandya. The complainant filed a complaint u/s 200 of Cr.P.C. against the accused for the offence punishable u/s 138 of N.I. Act. It was the case of the complainant that the accused approached the complainant on 1.2.2004 for financial assistance of Rs. 95,000/- to meet out his domestic requirement. Accordingly, the complainant paid a sum of Rs. 95,000/- to the accused on 4.2.2004. The accused did not repay the money inspite of demand made by the complainant. Instead, the accused issued a cheque for Rs. 95,000/- on 5.4.2004 drawn on State Bank of Mysore, Cox Town Branch, Bangalore for repayment of loan obtained from the complainant. The complainant presented the said cheque for encashment, but, it was dishonoured. As such, upon following all the necessary formalities, the complainant filed a complaint before the JMFC, Mandya. The accused appeared and contested the case. The accused having denied the charge leveled against him, the complainant got himself examined as PW-1 apart from examining one N. Swamy as PW-2. He relied upon seven documents marked as Ex-P1 to Ex-P7, such as cheque, bank endorsement, receipt for having issued notice, the copy of the legal notice and postal acknowledgment. The learned Magistrate upon going through the evidence placed on record by his judgment dated 24.11.2010 found the accused guilty for the offence punishable u/s 138 of N.I. Act and thereby convicted and sentenced the accused to pay fine of Rs. 1,90,000/-.

Aggrieved by the judgment and conviction passed by the learned Magistrate, the accused preferred Crl. A. No. 124/2008 before the Prl. Sessions Judge, Mandya who in-turn upon consideration of the entire material on record, also found the accused guilty for having committed offence punishable u/s 138 of N.I. Act and thereby confirmed the judgment passed by the Magistrate by order dated 19.11.2010. Questioning the legality and correctness of the order passed by both the Courts below, this revision petition is preferred. The only defence of the accused as made out during the course of the arguments is that the cheque in question marked as Ex-P1 was not issued by him and therefore he is not liable to pay the amount shown in the said cheque. Both the Courts below have concurrently held that the cheque in question marked as Ex-P1 was issued by the accused in favour of the complainant towards discharge of his liability. Moreover, it is seen from the records that in response to the demand notice issued by the complainant, accused did not choose to give reply. That was an earliest opportunity for the accused to disclose that the cheque in question was not issued by him. He did not do so. During the course of examination of the accused u/s 313 of Cr.P.C., he was asked by the learned Magistrate as to whether he has anything to say, to the said question, his answer was No. That was another opportunity for the accused to say that the cheque in question was not issued by him in favour of the complainant. He did not do so. His silence on both the occasions itself goes to show that the cheque was issued by him towards discharge of his liability in favour of the complainant. Thus both the Courts below have rightly come to the conclusion that the cheque in question was issued by the accused in favour of the complainant towards discharge of his liability. I do not find any reason to call for my interference in the impugned orders passed by both the Courts below. The criminal revision petition is devoid of merits. Accordingly, the same is hereby dismissed.