Sri. Fayaz Pasha vs Sri. N. Nagaraj

K.N. Keshavanarayana, J.—In this Revision Petition filed u/s 397 of Code of Criminal Procedure, the Petitioner has questioned the legality and correctness of the concurrent judgment of the Courts below, whereby he has been convicted for the offence punishable u/s 138 of the Negotiable Instruments Act (of short ''N.I. Act) and sentenced to pay fine of Rs. . 4,90,000/-.

The Respondent filed a private complaint u/s 200 of Code of Criminal Procedure alleging offence u/s 138 of the N.I. Act against the Petitioner herein inter alia alleging that for discharge of the debt due by him, the Petitioner herein issued two cheques dated 21.09.1999 in all for a sum of Rs. . 3,00.000/- and when these cheques were presented for encashment, they were returned unpaid with the Banker''s endorsement ''Funds Insufficient'' and in spite of issuance of notice, the Petitioner herein has failed to pay the amount covered under the cheques. The Petitioner-accused pleaded not guilty for the accusation made against him and claimed to be tried. The defence of the accused was that one Suryanaraya, who was an employee under him, was attending to the work of payment of the vehicle insurance, road taxes etc. pertaining to the vehicles owned by him and in that connection, he had delivered cheques to said Suryanarayana and the said Suryanarayana has misused two of the cheques in the name of his friend, the complainant.

The learned Magistrate on assessment of the oral as well as documentary evidence, by the judgment dated 23.08.2002 held that the complainant has proved that the cheques in question had been issued by the Petitioner-accused for discharge of the debt and that those cheques were returned for want of funds in the account when they were presented for encashment and that in spite of issuance of notice as required by Section 138(b) of the N.I. Act, the Petitioner-accused has failed to pay the amount. The learned Magistrate also held that the defence of the accused is neither probable nor acceptable in this view of the matter, the learned Magistrate convicted the Petitioner-accused and sentenced him to pay fine as noted supra. The appeal filed by the Petitioner herein against the judgment of conviction and order of sentence came to be dismissed by the Appellate Court and thereby the judgment of the trial Court was affirmed. It is against these concurrent judgment of the Courts bellow the Petitioner has presented this petition.

I have heard the learned Counsel appearing for the Petitioner and perused the judgments under revision. There is no dispute that the cheques in question relate to the account held by the Petitioner with the Banker and the cheques bear his signature. It is also not in serious dispute that when the cheques were presented for encashment, they were returned unpaid for want of sufficient funds in the account. The apparent tenor of the document indicates that the Respondent-complainant was the drawer of the cheques. Both the Courts below having regard to the oral and documentary evidence have held that the complainant has proved the existence of the debt and issuance of the cheques in question for discharge of the said debt. In this regard, the Courts below have drawn presumption u/s 139 of the N.I. Act to the effect that the cheques had been issued for discharge of the legally recoverable debt. Though the Petitioner-accused took up a specific plea that these two cheques among others had been delivered to his employee Suryanarayana, who in turn appears to have misused them, did not place any acceptable evidence to rebut the presumption u/s 139 of the N.I. Act. The said Suryanarayana was not examined before the Court as a defence witness. Under these circumstances the Courts below, in my opinion, have not committed any error in rejecting the defence plea and accepting the case of the complainant. It is the submission of the learned Counsel for the Petitioner that the Respondent-complainant in his complaint has not disclosed the date on which the loan said to have been advanced and also he has not established his source for advancing such a substantial amount of Rs. . 3,00,000/-. In view of the presumption u/s 139 of the N.I. Act and in view of the fact that the cheques in question undisputedly relate to the account held by the Petitioner-accused with the Banker and they bear his signature, there was no need for the Respondent-complainant to prove the sources of income and this aspect of the matter is now well-settled by later decision of the Supreme Court in the case of Rangappa v. Mohan AIR 2010 SCW 2946

In view of the above, I find no error committed by the Courts below in holding the Petitioner-accused guilty of the offence alleged and ordering him to pay fine of Rs. . 4,70,000/-. In this view of the matter. I find no grounds to entertain this petition. Accordingly, the petition is dismissed.