Sri. Anandappa T.R. vs Sri. Dhananjaya D.C.

V. Suri Appa Rao, J.—This Criminal Revision Petition is filed challenging the Judgment of Conviction and order of sentence passed by the learned XVIII ACMM and XX ASCJ, Bangalore City in C.C. No. 10823/2004 and which was confirmed by the Fast Track (Sessions) Judge-V, Bangalore City in Crl. Appeal No. 564/2007 dated 19th September 2009, whereby the Revision Petitioner was convicted for the offence u/s 138 of N.I. Act and sentenced to pay a sum of Rs. 90,000/-. In default of payment of fine, to undergo simple imprisonment for six months. Out of the fine amount, a sum of Rs. 85,000/- will be awarded as compensation u/s 357(3) of Cr.P.C. to the complainant and Rs. 5,000/- shall be appropriated towards expenses of the State Government. Aggrieved by the aforesaid conviction and sentence, the Revision Petitioner has filed this petition. For the sake of convenience, the parties are referred to as they are arrayed before the Trial Court.

The relevant facts leading to filing of this revision petition are as under:

The accused borrowed a sum of Rs. 60,000/- from the complainant during the first week of January 2004 and agreed to repay the same on or before March 2004 within two months. Subsequently, the accused has issued a Cheque bearing No. 846975 dated 01.03.2004 for a sum of Rs. 60,000/- drawn on Corporation Bank. The complainant presented the same for encashment, but the said cheque was returned with a shara as "Insufficient funds". Thereafter, the complainant has issued legal notice to the accused as required under the provisions of Sec. 138 of N.I. Act. The notice was returned unserved with an endorsement ''not claimed''. The notice sent under certificate of posting is served on the accused. In spite of which, the accused did not pay the cheque amount and therefore, the complainant lodged the complaint before the Trial Court by invoking the provision of Section 138 of N.I. Act.

The complainant is examined as PW-1 and relied on Ex. 1 to P8 and accused examined as DW-1 and marked Ex. D1-Affidavit.

Considering the oral and documentary evidence of both the parties, the Trial Court found the guilt of the accused u/s 138 of N.I. Act and passed the above order of conviction and sentence.

Learned Counsel for the Revision Petitioner submits that the accused has not borrowed any amount from the complainant and he has not issued any cheque in favour of the complainant. In fact, he borrowed Rs. 50,000/- from one Krishnappa and paid the amount and that he did not know the complainant at all. Therefore, the question of availing loan from the complainant and issuing of the cheque in favour of the complainant does not arise.

The Trial Court considering the evidence of PW-1 and the documents filed by the complainant observed that the accused borrowed Rs. 60,000/- from the complainant and issued a cheque towards discharge of legally enforceable debt. The accused contended that he borrowed Rs. 50,000/- only from one Krishnappa and repaid the same and that he never borrowed any amount from the complainant The accused had taken the plea that he borrowed Rs. 50,000/- from one Krishnappa but he did not choose to examine the said Krishnappa and failed to prove the transaction between himself and Krishnappa. For the legal notice issued by the complainant the accused did not choose to give any reply stating that he never borrowed any amount from the complainant and does not know the complainant at all. When once the accused issued Ex. P1-Cheque, it is for the accused to prove that he has not issued the cheque towards discharge of legally enforceable debt. As the accused had failed to rebut the presumption under Negotiable Instruments Act the Trial Court considering the entire evidence available on record held that the accused is liable for punishment u/s 138 of the Negotiable Instruments Act.

Aggrieved by the Judgment of Conviction the revision petitioner filed a Criminal Appeal before the Fast Track (Sessions) Judge in Crl. Appeal No. 564/2007. The learned Sessions Judge confirmed the judgment of the Trial Court on the ground that despite the legal notice the accused did not choose to give any reply nor complied the demand of the notice. The accused who is having account in the Corporation Bank has issued cheque-Ex. P1 in favour of the complainant for a sum of Rs. 60,000/-. The plea of the accused that he issued cheque for Rs. 50,000/- to one Krishnappa though he paid the amount, Krishnappa did not return the cheque to the complainant. If it is so, the accused ought to have issued reply to the notice issued by the complainant stating the above facts or issued notice to Krishnappa requesting him to return the cheque issued by him when he failed to return the cheque even after the payment of the amount. The accused having issued a cheque dated 01.03.2004 in favour of the complainant and failed to rebut the presumption under the act. Moreover, he has not claimed the notice issued by the complainant through registered post.

Considering the above facts and circumstances of the case, the learned Sessions Judge confirmed the judgment of conviction passed by the Trial Court. Admittedly accused borrowed Rs. 60,000/- only from the complainant. Therefore, the Trial Court and Sessions Court are not justified in directing the accused to pay Rs. 90,000/-. The accused is sentenced to pay Rs. 61,000/- only. Out of which complaint is entitled to Rs. 60,000/- and Rs. 1,000/- shall be remitted to State. Accordingly, this Revision Petition is dismissed.

The learned Counsel for the Revision Petitioner submits that a sum of Rs. 28,500/- has been deposited before the Trial Court on two occasions. The Revision Petitioner is further directed to deposit the balance amount within two months from the date of this judgment before the Trial Court.

Office is directed to send the entire records to the Trial Court forthwith.