Sri K.U. Kumar vs Sri.M.R. Ashoka Hegde

A.S. Pachhapure

Though the matter was posted today for admission with the consent of the counsel, it is taken up for final hearing.

The revision petitioner has challenged the concurrent findings of his conviction and sentence passed by the courts below for the charges u/s 138 of Negotiable Instrument Act (''N.I''. Act for short).

The facts reveal that the petitioner had purchased ten quintals of areca nuts from the respondent and towards the repayment, he issued a post dated cheque for Rs,1,60,000/- and assured that the cheque would be honoured on presentation of the cheque. The respondent presented the cheque for encashment and it returned with an endorsement insufficient funds''. The respondent issued a notice of demand by both registered post and certificate of posting and despite notice, there was no compliance of the demand, Hence, the respondent has approached the trial Court with a complaint u/s 200 Cr.P.C to initiate action for the offence punishable u/s 136 of the. Act.

During the trial the respondent was examined as FW-1, two witnesses were examined as PWs-2 & 3 and the documents got marked as Ex.P-1 to 6. The statement of the petitioner was recorded u/s 313 of Cr.P.C. The respondent examined himself as DW-1 and one witness was examined as DW-2. The trial Court heard the respective counsel for the parties and appreciated the evidence materials placed on record convicted the petitioner for the above said charge and ordered him to pay a fine of Rs. 1,000/- and simple imprisonment for a period of six months with compensation of Rs. 3,20,000/- and the appeal against the conviction and the sentence was dismissed on merits. Hence, the petitioner has approached this Court in revision.

I have heard the learned counsel for the parties.

It is the submission of the learned counsel for the petitioner that the respondent has not produced any documents to prove that he owns lands and he has not produced license to sell arecanuts and under the circumstance, it is his defence that he had raked a loan of Rs. 10,000/- from Sri Needhi Finance, owned by one Sri N Rajshekara and the complainant is the relative of the said owner, He also submits that though he paid the loan amount of Rs. 10,000/- to Sri Needhi Finance, the cheque was not returned and the same was given by the Sri Rajshekara to the complainant which has been misused for lodging this complaint.

At per contra, learned counsel for the respondent has supported the judgment and order of the courts below,

In the cross-examination of PW- 1 he has denied the suggestion that he does not own agricultural land and he is not carrying business in the selling of arecanuts. The cheque is produced as Ex.P-1 and there is no dispute with regard to the signature of the petitioner on the said cheque, So, in view of the recent decision, of the Apex Court, once the signature of the cheque is admitted, a presumption can be raised order Section 138 of the Act and it would be presumed that the cheque was given to the respondent for the payment of the debt or liability even there is a presumption with regard to the existence of the debt. As regards the defence of the petitioner is concerned except examining himself as DW-1 and a witness DW-2 nothing is made available by the petitioner to prove his probable defence, If really the petitioner had raised loan from Sri Needhi Finance, he could have produced documents relating to the loan transaction or at least he could have produce the receipt for having paid the loan amount to Sri Needhi Finance, So, by non-production of material documents defence and at defence cannot be said to have been proved. Under the circumstances it has to be held that the petitioner has felled to discharge his burden by rebutting the presumption that arises u/s 139 of the Act,

This is a revision, The scope is limited, This Court cannot appreciate or reappreciate the facts and the evidence led by the prosecution, It is for the petitioner to establish the inherent defects or error apparent on the race of the record so as to correct the same no such material as placed on record to interfere with the order of conviction.

So far as the sentence is concerned the trial Court has awarded a fine of Rs, 1,000/- and a compensation of Rs. 3,20,000/- total amount of Rs. 3,21,000/- Taking in to consideration., the fact that only five years have lapsed from the date of cheque and considering, that the reasonable interest on the amount of Rs. 1,60,000/- I think it would meet the ends of justice, if the respondent is ordered to pay compensation of Rs. 3,00,000/- and a fine of Rs. 1,000/-. Hence, I proceed the fallowing;-

ORDER

(i) The revision petition is allowed in part,

(ii) The conviction and the sentence ordered by the courts below is modified by directing the petitioner/accused to pay a fine of Rs. 3,01,000/- and on deposit of the fine amount, Rs. 3,00,000/- shall be paid to the respondent as compensation. The amount of Rs. 1,000/- fine shall be credited to the State and in default payment of fine, the petitioner shall undergo simple imprisonment for six months.