Sri Venkatamurthy vs Smt. Radhamma

A.N. Venugopala Gowda

Petitioner faced trial in C.C. No. 31361/2002, on the file of the XIX Additional CMM, Bangalore City, for an offence punishable u/s 138 of N.I. Act, on a complaint filed by the respondent and having been found guilty, was convicted by a judgment dated 26.07.2004. He was sentenced to pay fine of Rs. 1,75,000/-, in default, to undergo simple imprisonment for six months. Out of the fine amount when realised, Rs. 95,000/- was ordered to be paid as compensation to the complainant. Crl. A. No 1242/2005, filed in the Sessions Court, Bangalore City, having been found to be barred by limitation, was dismissed by an order dated 18.10.2005. Feeling aggrieved, the accused has filed this criminal revision petition. Learned Advocate appearing for the petitioner, contended that, the ingredients of the offence u/s 138 of N.I. Act has not been established by the respondent and hence, the trial Court has committed illegality in convicting the petitioner for the offence u/s 138 of N.I. Act. Alternatively, learned counsel submitted that the sentence of fine is harsh.

Perused the record. Complainant has deposed as PW. 1. Ex.P-1/cheque was issued by the petitioner towards discharge of the loan availed under Ex.P-3 -demand promissory note. The cheque/Ex.P-1, on its presentation, was returned by the petitioner''s Bank on 05.10.2002, for the reason "funds insufficient". Complainant demanded payment of cheque amount by issue of notice Ex.P-5, which was sent by RPAD and also by Certificate of Posting. Notice sent by RPAD to the two addresses, was returned as per Exs.P-6 and P-7. However, notice sent by Certificate of Posting, as per Ex.P-5 was not returned. Since cheque amount was not paid, private complaint u/s 200 Cr.P.C. was filed. In response to the summons, accused-petitioner appeared and pleaded not guilty. Complainant got himself examined as PW. 1 and marked Exs.P-1 to P-12. PW. 1 was not cross-examined, despite reasonable opportunity having been granted. However, accused was examined u/s 313 Cr.P.C. and it is a case of mere denial. Though, he stated that he would lead defence evidence, no defence evidence was adduced. Appreciating the evidence of PW. 1 and the exhibited documents, the trial Court found the accused guilty of the offence u/s 138 of N.I. Act and sentenced him, as above.

Crl. A. No. 1242/2005, was filed with delay of 421 days. IA. No. 1, was filed seeking condonation of delay mainly on the ground that the learned Advocate did not inform the accused about the progress of the criminal case and that, he was suffering from jaundice and could not contact his Advocate. The learned Appellate Judge finding the cause shown for delay as unsatisfactory and being of the opinion that, no sufficient cause has been shown for condonation of delay, dismissed IA. No. 1 and consequently, the appeal as well.

Petitioner does not dispute the issuance of the cheque/ Ex. P-1. The cheque has been returned by his Bank as per Ex.P-2 for the reason "funds insufficient". Demand notice as contemplated u/s 138(c) of the Act was issued within the prescribed period. Notice sent by Certificate of Posting has been delivered to the accused since the addresses shown in Ex.P-5 tallies with the addresses shown in the cause title of this petition. There being non-payment of the cheque amount, complaint Ex.P-10 was filed. Complainant also got himself examined as PW. 1. Thus, the ingredients of the offence u/s 138 of N.I. Act has been met. Issuance of Ex.P-1 and its bouncing, for the reason ''funds insufficient'' being not in dispute, the trial Court is justified in applying the presumption u/s 139 of the Act. Though the accused stated when examined u/s 313 Cr.P.C. that, he has defence evidence, he has failed to adduce any evidence and rebutted the statutory presumption. In the circumstances, the finding of guilt recorded by the trial Court does not warrant interference.

The appeal having been filed with delay of 421 days and delay having not been satisfactorily explained, the appellate Court is justified in dismissing IA. No. 1 and the appeal. Having participated in the trial, the accused ought to have followed up the case. He cannot put the blame on his Advocate. The delay of 421 days is inordinate. Proof with regard to suffering from jaundice is not forthcoming. In the circumstances, no exception can be taken to the finding of the appellate Court on IA. No. 1.

Even otherwise, having examined the record of the case, I am satisfied that the finding of guilt recorded by the trial court against the petitioner is justified, since the evidence of PW. 1 and the exhibited documents have remained unchallenged. Hence, no interference with the judgment of conviction is warranted. However, the trial Court is not justified in sentencing the accused to pay fine of Rs. 1,75,000/-, Cheque having been issued for payment of Rs. 90,800/-, the fine amount directed to be paid is excessive. To the extent of sentence, interference in the matter is warranted.

In the result, conviction of the petitioner for the offence u/s 138 of N.I. Act is maintained. Sentence of fine imposed is modified. Accused-petitioner is sentenced to pay fine of Rs. 1,05,000/-. Two months time is granted for deposit of the fine amount, if not already deposited. If the fine amount as above is not deposited within the time allowed, the bail bond and the surety bond shall stand cancelled and the petitioner shall surrender and serve the jail sentence. Out of the fine amount when realised, the compensation as directed by the trial Court, be paid to the complainant.

Petition is disposed of accordingly.