VENKATESH SANJEEVA BALIGA Vs. INDIA MOTOR PARTS

JUDGEMENT

(1.) HEARD learned Advocates and perused the record.

(2.) INDISPUTABLY, parties are known to each other and had business transactions. Petitioner issued Ex.P-13, a cheque for Rs.38,179.42/-, in order to repay amount due under the invoices, as at Exs.P-2 to P-5 of the respondent. Ex.P-13 was returned dishonoured on 02.03.1999. Bank memo's show that there was no sufficient fund for honouring of the said cheque. Respondent issued Ex.P-16, demand notice dated 14.03.1999, which was served on the petitioner vide Ex.P-17. Since payment of cheque amount was not made within 15 days, complaint under Section 200 Cr.P.C. for offences under Sections 138 and 142 of N.I. Act was filed, which was registered as C.C.No.30694/2000 in the Court of 19th Additional Chief Metropolitan Magistrate, Bangalore City. Accused, in response to summons, appeared and pleaded not guilty. Complainant in order to establish his case, examined Achutha Krishnan as PW.1, through whom Exs.P-1 to P-19 were marked. Petitioner-accused was examined under Section 313 Cr.P.C. Later, he deposed as DW.1 and marked Exs.D-1 and D-2. Learned Magistrate having considered the case, found the accused guilty. Acting under Section 255(2) Cr.P.C., accused was convicted and sentenced to pay fine of Rs.75,000/-, in default to under go simple imprisonment for three months, for the offence punishable under Section 138 of N.I. Act. Rs.60,000/- was ordered to be paid as compensation to the complainant in case the fine amount is realised. Accused preferred Crl.A.No.928/2007 in the City Civil and Sessions Court at Bangalore. Appeal, upon consideration, having been found to be devoid of merit was dismissed by a judgment dated 16.10.2009. Feeling aggrieved, accused has preferred this criminal revision petition.

(3.) HOWEVER, the sentence imposed on the petitioner to pay fine of Rs.75,000/- is not justified. The cheque issued was for Rs.38,179.42/-. Keeping the said fact in view, the fine amount ought to have been Rs.45,000/-. To the said extent, learned Magistrate has committed error and by not noticing the said fact, learned Sessions Judge has committed error. The sentence imposed on the petitioner calls for modification.