Sri K.H. Basavaraj vs Sri Mahamad Samiulla

Pradeep D. Waingankar, J.—This revision petition is filed U/s. 397 r/w 401 Cr.P.C. against the judgment dated 11.6.2010 in Crl. A No. 35/2010 on the file of the I Addl. District and Sessions Judge, Davanagere whereby the appeal came to be dismissed confirming judgment of conviction and sentence dated 8.2.2010 passed by the Prl. Civil Judge (Sr. Dn) and C.J.M. Davanagre convicting the revision petitioner - accused U/s. 138 r/w Section 142 of N.I. Act and sentencing him to pay a fine of Rs. 8,000/- in default to undergo S.I. for five months apart from the compensation of Rs. 65,000/-.

Towards the discharge of his liability, the accused who is the revision petitioner herein issued a cheque for Rs. 85,000/- on 3.2.2005 in favour of the respondent -complainant. When the cheque was presented by the complainant, it came to be dishonoured. As such, upon issuance of notice informing the factum of dishonour, the complaint came to be filed U/s. 138 of N.I. Act. The accused appeared in response to the summons issued. He having denied the charge leveled against him, the complainant in order to establish the charge, examined himself as P.W.1 and relied upon the documents which were marked as Exs P1 to P9. Inspite of grant of sufficient time, P.W.1 was not subjected to cross examination. As such, upon going through the available materials on record and hearing the arguments, the learned Magistrate came to the conclusion that the accused has committed an offence U/s. 138 of N.I. Act which resulted in his conviction. Aggrieved by the order of conviction and sentence, the appeal was preferred in Crl A No. 35/2010 before the I Addl. District and Sessions Judge, Davanagere. Upon re-appreciation of the evidence, the learned Sessions Judge has upheld the conviction of the accused U/s. 138 of N.I. Act and thereby dismissed the appeal by order dated 11.6.2010. Questioning the legality and correctness of the order passed by both the Courts below this revision is filed.

Upon hearing both the learned counsel and on going through the material on record, the only point that arises for consideration is

a) Whether the impugned judgment passed by the Magistrate and learned Sessions Judge calls for my interference ?

My findings: is in the negative for the following reasons:-

It is borne out from the records that towards discharge of his liability for Rs. 85,000 the accused issued a cheque in favour of the complainant for Rs. 85,000 which is marked as Ex.P1. The complainant presented the said cheque through his banker. But on presentation, the cheque came to be dishonoured as could be seen from Ex.P2 and Ex.P3- bank memos. The cheque came to be dishonoured on account of insufficient funds. Thereafter, the complainant issued notice informing him the factum of dishonour of the cheque and calling upon him to pay the cheque amount as could be seen from the copy of; the notice marked as Ex.P4. The notice was sent both by R.P.A.D. and under Certificate of Posting. The Accused neither paid the cheque amount nor gave reply to the notice and as such the complaint came to be lodged for offence U/s. 138 of N.I. Act. The complainant got himself examined as P.W.1. Inspite of grant of sufficient time, the complainant who has been examined as P.W.1 was not subjected to cross examination. In other wards the evidence placed on record by the complainant, has gone unchallenged. The evidence placed on record by the complainant is sufficient to constitute an offence U/s. 138 of N.I. Act. Rightly for the said reasons, both the Courts below have convicted the accused for offence U/s. 138 of N.I. Act. I see no grounds to interfere with the impugned judgment of conviction and sentence. The revision is bereft of merits. Hence revision petition is dismissed.