R. Santhosh vs M. Venkata Reddy

A.S. Pachhapure, J.—The conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ''NI Act'' for short) confirmed in an appeal by the First Appellate Court is challenged in this revision.

The petitioner who is the accused before the Trial Court had entered into an agreement of sale with the respondent-complainant on 18.01.2007. As contended, the petitioner had received the sum of Rs. 5,00,000/- through cheques towards advance sale consideration and as the agreement was cancelled, the petitioner issued the cheque (Ex. P1) to refund the advance amount of Rs. 5,00,000/-. The said cheque was presented for encashment, it returned with an endorsement as insufficient funds. A notice was issued and as there was no compliance by the petitioner, a complaint came to be filed in the Trial Court for the offence punishable under Section 138 of NI Act.

In the trial, the complainant was examined as P.W. 1, the documents Exs. P1 to P7 were marked. After recording the statement of petitioner, he was examined as D.W. 1, no documents were marked on his behalf. The Trial Court heard the Counsel and on appreciation of the evidence on record, convicted the petitioner and sentenced him to pay Rs. 5,05,000/-. Out of the said sum, Rs. 5,00,000/- was to be paid as compensation and Rs. 5,000/- as fine to the State. The petitioner was ordered to undergo imprisonment for six months in default of payment of sum of Rs. 5,05,000/-. The petitioner approached the First Appellate Court challenging the conviction and sentence and the said appeal came to be dismissed. Therefore, he approached this Court in revision.

Heard the learned Counsel for the petitioner. Counsel for the respondent is absent.

Learned Counsel for the petitioner would submit that only a sum of Rs. 1,00,000/- was received under the agreement (Ex. P7) and as the respondent had agreed to give the site, a cheque for Rs. 5,00,000/- was given by him. Therefore, he submits that when the amount of Rs. 5,00,000/- was not due and only a sum of Rs. 1,00,000/- was due, the question of paying Rs. 5,00,000/- to the respondent does not arise. Therefore, he submits that the conviction ordered by the Trial Court is both erroneous and illegal.

It is true that in the agreement of sale produced by the respondent in Ex. P7, a sum of Rs. 1,00,000/- was paid as advance at the time of sale agreement dated 18.01.2007. It is also true that cheque (Ex. P1) is for a sum of Rs. 5,00,000/-. It is not in dispute that the petitioner had issued the cheque for Rs. 5,00,000/- under Ex. P1. The question is ''whether the petitioner had received the sum of Rs. 5,00,000/- under the agreement or not''? Anyhow, the petitioner admits having issued the cheque for Rs. 5,00,000/-. But it is his contention that the sum in excess of Rs. 1,00,000/- was towards site, which the respondent had agreed to give to the petitioner. P.W. 1 has denied this fact in the evidence. There are no documents placed by the petitioner on record to prove that the respondent had agreed to give one site to the petitioner when the cheque Ex. P1 was issued. Therefore, except the oral contention of the petitioner that the respondent had agreed to give the site for the amount in excess of Rs. 1,00,000/- cannot be accepted.

It is the contention of respondent that the sum of Rs. 5,00,000/- was paid to the petitioner under an agreement (Ex. P7). In fact, the contents of Ex. P7 i.e., agreement itself does not reveal the payment of Rs. 5,00,000/-. But in the evidence, P.W. 1 has stated that the three cheques were issued to the petitioner towards the advance sale consideration and the cheque numbers have been given including the dates. Though the fact of giving three cheques is not borne out from the copy of agreement produced at Ex. P7, as could be seen from the evidence of D.W. 1 the petitioner herein, in his chief examination, though he denies the signature on the endorsement over the back page of original agreement for having received three cheques bearing Nos. 643143 dated 11.02.2007, 643144 dated 13.02.2007, 643145 dated 05.02.2007 for a total sum of Rs. 5,00,000/-, issuance of cheque has not been disputed in the evidence of P.W. 1. He just disputed the signature over the endorsement relating to the payment of cheques.

Though the original agreement is not produced by the respondent in the Trial Court and the copy does not bear the endorsement on the back page of Ex. P7, the admission of D.W. 1 - the petitioner herein regarding the endorsement referring to the three cheques about disputing the signature itself is corroborated by the version of P.W. 1 as regards the advancement of three cheques for a sum of Rs. 5,00,000/-. It is well established principle of law that when the issuance of cheque is not in dispute, there is a presumption in favour of the complainant and it is for the accused to rebut the said presumption by placing on record the cogent evidence. The evidence of D.W. 1 is not sufficient to rebut the said presumption and he having admitted to the effect that he had issued the cheque of Rs. 5,00,000/- under Ex. P1, I do not think he has made out any grounds to call for interference in the impugned judgment and order. There is no merit in this revision petition.

Accordingly, the revision petition is dismissed. Anyhow, the appellant is granted three months time from today to make the payment.