Sri C.A. Aiyanna vs Sri D.B. Ramadas

A.N. Venugopala Gowda

Heard the learned counsel on both sides and perused the record.

Petitioner issued the cheque/Ex.P1. On its presentation for encashment, was not honoured by the petitioner''s bank for want of sufficient funds, as is evident from Ex.P3. Demand notice to pay the cheque amount as per Ex.P4 was sent, to which the petitioner/accused replied as per Ex.P8. It was contended that Ex.P1 was issued as security and the loan amount of Rs. 30,000/- availed was discharged. Finding that the evidence of the accused/DW.1 being not cogent and probable, learned Trial Judge found the accused guilty of the offence under S. 138 of the Negotiable Instruments Act ("the Act" for short) and sentenced him to pay fine of Rs. 80,000/-. Accused filed Crl. A. No. 25077/2009 in the Sessions Court, Bangalore. Learned Appellate Judge upon re-appreciation of the evidence did not find any error or illegality committed by the learned Trial Judge and as a result, by a judgment dated 9.4.2010 dismissed the appeal. Challenging the said judgments and orders, the accused has filed this Criminal Revision Petition. There is no dispute that the petitioner issued Ex.P1 and the same bounced for the reason ''funds insufficient'', on account of which, demand notice to pay the cheque amount was issued. Complainant got himself examined and marked the relevant documents. Thus he met the ingredients of the offence under S. 138 of the Act. The burden of proof having shifted to the accused, he has failed to rebut the presumption under S. 139 of the Act. The evidence which was sought to be brought on record by examination of himself as DW.1 being not probable, has rightly not been accepted by the Courts below. The accused/petitioner has not rebutted the presumption under S. 139 of the Act and hence, the Trial Court is, justified in convicting the accused for the offence under S. 138 of the Act and the Appellate Court is justified in affirming the conviction. The finding recorded by the Trial Court and affirmed by the Appellate Court insofar as conviction is concerned, being neither perverse nor illegal, no interference in exercise of revisional jurisdiction is warranted.

Petitioner has now deposited Rs. 20,000/-. Cheque/Ex.P1 was issued for payment of Rs. 60,000/-. There is no evidence on record showing that he petitioner is a habitual offender and was convicted for the same offence on an earlier occasion. In the circumstances, sentence of imprisonment and payment of fine of Rs. 80,000/- is harsh and interference to the extent of sentence of imprisonment and the payment of fine amount is warranted. Keeping in view the nature of the offence and the fine amount sought to be levied and the compensation awarded to the complainant, the sentence of imprisonment ordered is irrational.

In the result, the conviction of the petitioner for the offence under S. 138 of the Act is maintained. The sentence of imprisonment is set aside. The amount of fine imposed is modified. Accused/petitioner is sentenced to pay fine of Rs. 70,000/-. Rs. 20,000/- having been deposited, be released in favour of the complainant.

Petitioner is granted time up to 31.12.2012 to deposit the balance fine amount of Rs. 50,000/-. If the balance amount is deposited, the same be released in favour of the complainant. In case of default to deposit the balance fine amount on or before 31.12.2012, the petitioner shall surrender and undergo simple imprisonment for a period of 4 months.