Sri. Matihalli Mahesh vs Sri. Aramani Gurusiddappa

A.N. Venugopala Gowda

The petitioner faced trial for an offence u/s 138 of N.I. Act in C.C.No. 09/2011 on the file of J.M.F.C. at Harapanahalli. He was found guilty and was convicted for the said offence and was sentenced to undergo S.I. for six months. In exercise of the power u/s 357 of Cr.P.C., learned Magistrate directed the accused to pay compensation of Rs. 75,000/- to the complainant. Crl.A.No. 92/2011 filed in the Sessions Court at Davangere by the accused was dismissed on 15.10.2011. This revision petition is directed against the said judgments/orders. Sri S.G. Rajendra Reddy, learned advocate contended that though the ingredients of the offence u/s 138 of N.I. Act has not been met and the learned Magistrate has illegally convicted the petitioner for the offence u/s 138 of N.I. Act. Alternatively, he submitted that the compensation ordered to be paid and the sentence imposed is irrational.

Sri Aravinda H., learned advocate appearing for the respondent on the other hand supported the impugned judgments and sought for dismissal of the criminal revision.

Perused the records. The point for consideration is; "Whether the conviction of the petitioner for the offence u/s 138 of N.I., the sentence imposed and the compensation amount ordered to be paid is justified?"

Respondent-complainant deposed as PW1 and examined two witnesses as PWs. 2 and 3. Cheque in question is Ex. P1. The said cheque was returned by the Bank and cheques return memos are Exs. P2 and P3. Demand notice for payment of cheque amount was issued as per Ex. P4. The cheque amount having not been paid even after issue of demand notice, complaint u/s 200 of Cr.P.C. for the offence punishable u/s 138 of N.I. Act was filed.

The defense as could be seen from the cross-examination of PWs. 1 to 3 is that, loan of Rs. 5,000/-was borrowed, a blank cheque issued, has been mis-utilised, based on which false claim for Rs. 50,000/-has been made.

The issuance of cheque Ex. P1 being not in dispute and the signature of the accused at Ex. P1a also being not in dispute, the complainant having deposed and produced the cheque, the burden of proof has shifted to the accused. The accused has not entered the witness box nor has placed any credible material in support of the defence. The defense putforth being not probable, has rightly been disbelieved and the presumption u/s 139 of the Act. has rightly been applied. There being no evidence rebutting the statutory presumption u/s 139 of the Act, the learned Magistrate is justified in convicting the accused for the offence u/s 138 of N.I. Act.

However, the learned Magistrate is not justified in sentencing the accused to undergo S.I. for six months and also to pay Rs. 75,000/- as compensation to the complainant. Keeping in view the nature of offence committed and Ex. P1 having been issued for Rs. 50,000/-, the sentence of fine ought to have been imposed and out of the fine amount, the compensation ought to have been directed to be paid to the complainant. Consequently, sentence imposed on the petitioner is liable to be set aside and modified sentence imposed.

In the result, conviction of the petitioner for the offence u/s 138 of N.I. Act is confirmed. The sentence imposed on him and the compensation amount ordered to be paid is set aside. The petitioner is sentencing to pay fine of Rs. 60,000/- and out of the fine amount, when realized, Rs. 59,500/- be released to the complainant.

Two months time is granted for payment of the fine amount. In case of default, the bail bond and surety bond shall stand cancelled and the petitioner shall undergo S.I. for a period of six months.

Sri Rajendra Reddy at this stage submits that, Rs. 18,750/- has been deposited. The petitioner to deposit the balance amount, within the time allowed.

The amount in deposit be released to the complainant.