Smt. Dhakshayani vs Smt. Malathi Dayan

A.N. Venugopala Gowda

Questioning an order of conviction and the consequential sentence imposed by the !earned Magistrate for an offence under S.138 of the

Negotiable Instruments Act, 1881 (for short, ''the Act'') and having failed in CrI.A.No.25124/2010, on the file of the Sessions Court at Bangalore,

accused has filed this criminal revision petition. Sri Hiremathad, learned advocate appearing for the petitioner contended that the petitioner has

been convicted for an offence under S.138 of the Act, when the ingredients necessarily to be established have not been established by the

respondent-complainant. Learned counsel submitted that the defence of the accused has not been correctly appreciated and hence, impugned

Judgments being perverse, interference in the matter is necessary.

Sri M.D. Raghunath, learned advocate appearing for the respondent, on the other hand, contended that the issuance of Ex.P1 being not in

dispute and that the same having been returned by the bank, where after a demand was made and the payment having not been made, complaint

was filed and the offence committed by the accused having been established by the evidence of PW-1, and on the basis of Exs. P1 to P17, learned

Magistrate is justified in finding the accused guilty and in imposing the sentence. Learned counsel submitted that the appellate Court has re-

appreciated the evidence and the appeal having been found to be devoid of merit, was dismissed. Learned counsel submits that in view of the

concurrent finding of fact by the Courts below, no interference in the matter is called for.

Perused the record. In view of the rival contentions, point for consideration is, whether the Courts below are justified in holding the petitioner

guilty of an offence under S.138 of the Act?

Petitioner does not dispute the fact of she having entered into an agreement of sale dated 05.09.2007 with the respondent vide Ex.P1. The sale

transaction did not materialize. Hence she issued the cheques Exs.P6 to P9 towards refund of the advance Saki consideration amount received

pursuant to Ex.P1. Said cheques when presented, were returned vide Exs.P10 to P13. Immediately, upon return of the cheques at Exs.P6 to P9,

demand notice vide Ex.P14 was sent, to which there is a reply as per Ex.P17. It can be seen from Ex.P17, that the petitioner sought time to pay

the amount payable under the cheques i.e., Exs.P6 to P9. Since the amount was not paid, complaint under S.200 Cr.P.C. for the offence under

S.138 read with S.142 of the Act was filed.

Complainant deposed as PW-1. Nothing material has been elicited in the evidence of PW-1 to hold that the claim made by her based on

Exs.P6 to P9, P10 to P13 & P14 is not tenable. In a complaint under S.200 Cr.P.C. for the offence under S.139 of the Act, the Court has to

presume that the cheque has been issued for a debt or liability. Accused was examined under S.313 of Cr.P.C. and it is a case of denial. Though

the accused deposed later as DW-1 and marked Exs.D1 to D4, the defence being not probable and inconsistent with the stand taken in Ex.P17,

the presumption having not been rebutted, learned Magistrate is justified in recording the finding of guilt of the accused under S.138 of the Act.

There is neither any perversity or illegaiity committed by the Courts below in the matter of appreciation of evidence. The ingredients to punish the

accused for the offence under S.138 of the Act has been made out. Hence, the petition is devoid of merit.

In the result, the petition is dismissed. However, petitioner is granted a month''s time to deposit the fine amount. In case, fine amount is not

deposited within the time allowed, the baii and surety bonds shall stand cancelled and the petitioner shall surrender before the learned Magistate to

serve the custodial sentence.

The amount in deposit in the Trial Court, if any, be released in favour of the complainant.