Sathish vs Vasantha A. Salian

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned counsel for the respondent.

The petitioner was the accused before the Trial Court for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ''the NI Act'', for brevity). It was alleged that the petitioner had borrowed a loan of Rs. 83,000/- in the year 2005 and that he had agreed to repay the same. When there was failure to do so and on repeated demands, a cheque had been issued for a sum of Rs. 83,000/- dated 12.10.2007 and when the cheque had been presented for encashment, it was returned with the Banker''s endorsement that the funds were insufficient in the account. On this, the respondent had issued a notice under Section 138 of the NI Act and when the petitioner had failed to meet the demand, the complaint had followed. The petitioner had entered appearance on summons being served and had contested the matter denying the transaction and negating the complaint on several grounds. The Trial Court having found the petitioner guilty and having convicted him and sentenced him to pay a fine of Rs. 1,25,000/- of which Rs. 1,22,000/- was to be paid as compensation to the respondent. The same was challenged in appeal. The Appellate Court had confirmed and affirmed the judgment of the Trial Court. It is that which is under challenge in the present petition.

The learned counsel for the petitioner contends that firstly, the very transaction is denied and the circumstances would indicate that it was not a tenable claim. In that, it was urged by the respondent that the petitioner had borrowed an amount of Rs. 83,000/- in the year 2005, whereas the cheque is of the year 2007 and therefore, there is no explanation forthcoming as to the long gap between the alleged transaction and the date of the cheque.

Secondly, it is contended that the cheque having come into the hands of the respondent, was in the background that there was an earlier transaction of sale of tyres to the petitioner herein and in order to secure the due payment of the price, a blank cheque had been issued by the petitioner in favour of a third party, which has mischievously come into the hands of the respondent who is seeking to misuse the same.

Thirdly, it is contended that there was no notice served on the petitioner under Section 138 of the NI Act and even as per records, it is shown that the notice issued to the complainant was returned by the postal authorities as ''not claimed''. Therefore, there was no due service of notice as contemplated under Section 138 of the NI Act.

Fourthly, that there is an admission in the course of cross-examination of the complainant indicating that the loan was only in a sum of Rs. 83/- and not Rs. 83,000/-, and which would indicate the falsity of the claim.

The learned counsel for the respondent on the other hand would point out that insofar as these contentions are concerned, they were all defences that were urged both before the Trial Court as well as the Appellate Court and that findings of fact having been arrived at concurrently, there is no warrant for re-consideration of the grounds before this Court. While he would also point out that insofar as the grounds which are repeatedly urged also, are not tenable for the reason that the alternative contention of the petitioner to the effect that there was no loan transaction and the cheque which has come into the hands of the petitioner was in the circumstance that it had been issued to a third party and it was a blank cheque which is sought to be misused by the petitioner, are self-serving claims. There is no substance in the same and the fact that the loan was of the year 2005 and the cheque was of the year 2007 is also explained by the fact that because there was default on the part of the petitioner in repaying the amount, on repeated demands, the cheque came to be issued in the year 2007.

Insofar as the contention that there was no service of notice under Section 138 of the NI Act is concerned, is not also a tenable ground to defeat the complaint, as the receipt of notice by the petitioner is not of much significance. The requirement of law is that a notice had been duly issued in terms of Section 138 of the NI Act and that is demonstrated to the satisfaction of the court below. Hence, the contention that there was a postal endorsement to the effect that the notice issued was not claimed, would pale into insignificance.

Fourthly, that the inadvertent statement of the complainant in the course of cross-examination that he had lent a sum of Rs. 83/- only instead of Rs. 83,000/- is also not a tenable ground, when it is the positive claim of the respondent in the complaint as well as his evidence, that it was indeed a sum of Rs. 83,000/-.

One other contention that the amount of Rs. 1,22,000/- which is deposited to be paid as compensation out of the fine amount of Rs. 1,25,000/-, far exceeds the cheque amount, is also not a ground to be considered.

On these rival contentions, the defences raised by the petitioner as rightly pointed out by the learned counsel for the respondent, have been adequately addressed by the Trial Court and as further explained by the learned counsel for the respondent before this Court, there is no merit in this petition.

Accordingly, the petition is dismissed.