Smt. Shamshad Begum vs Smt. Zahida Banu

A.N. Venugopala Gowda

Challenging the judgment of conviction and consequential sentence imposed for an offence under S.138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''), the accused being unsuccessful in the criminal appeal, has filed this criminal revision petition. Sri K. Prasanna Shetty, learned advocate appearing for the petitioner contended that Ex.P1 was stolen and the same having not been issued towards any debt or liability, the Courts below have committed error and illegality in finding the petitioner guilty of the offence under S.138 of the Act and in sentencing her to pay fine and in case of default, to undergo S.I.

Sri Mahesh Kiran Shetty, learned advocate appearing for the respondent, on the other hand, made submissions in support of the view taken by the Courts below and submits that there being concurrent finding of fact with regard to the guilt of the petitioner, 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 have committed error and illegality in finding the petitioner guilty of the offence under S.138 of the Act and in sentencing her to pay the fine amount and in case of default, to undergo S.I.?

Ex.P1 is the cheque which was returned vide Ex.P2 on 08.03.2002. After return of the cheque, demand notice vide Ex.P3 was issued and the same has been served on the petitioner herein as per Ex.P6.

Petitioner does not dispute that Ex.P1 belongs to her. Her case is that, Ex.P1 was stolen and has been made use of by the complainant to foist a false case. Her case is that she had kept a signed blank cheque in the car and there is a theft. Though the accused deposed as PW-1 and also examined her brother as DW-2, they have failed to establish that Ex.P1 was stolen from the car and has been misused to foist a false case. Since Ex.P1 contains the signature of the petitioner, the Courts below are justified in raising the presumption under S.139 of the Act. Petitioner who deposed as DW-1 and examined her brother as DW-2 has not rebutted the statutory presumption. The Courts below have considered the matter in great detail. The appreciation of evidence is neither perverse nor illegal. In view of the enunciation of law by the Apex Court in the case of Rangappa Vs. Sri Mohan, the contention that Ex.P1 was not issued towards legally enforceable debt is untenable.

In the result, petition being devoid of merit, is dismissed. However, petitioner is granted two months'' time to remit the fine amount. The record shows that, Rs. 75,000/- has already been deposited. Petitioner to remit the balance amount in the Trial Court within the time allowed. In case of default, petitioner shall surrender before the Trial Court and serve the custodial sentence. The bail bonds shall be in force for a period of two months.

The amount in deposit be released in favour of the complainant.