V. RAMACHANDRA, S/O LATE C. VENKATACHALAPATHI Vs. SRI S.R. VENKATESH, S/O SRI S. RADHAKRISHNAIAH, MAJOR, R/A NO. 51, 5TH MAIN ROAD, 2ND CROSS, SRINIVASANAGARA, BANGALORE-560050

JUDGEMENT

(1.) THIS Criminal Revision Petition is by the accused, who has been convicted by the trial court in respect of an offence under Section 138 of the Negotiable Instruments Act and sentenced to pay Rs. 2,65,000/ - as fine out of which Rs. 2,62,000/ - was to be paid as compensation to the complainant. The said judgment was confirmed by the lower appellate court by dismissing the petitioner's appeal. The case of the respondent -complainant is that, the petitioner availed hand loan of Rs. 2,50,000/ - from him by way of cash on 3.3.2003 and the rate of interest was 2% per month and towards the discharge of the loan, the accused issued three cheques out of which two cheques were for Rs. 1,00,000/ - each and one cheque was for Rs. 50,000/ -. The said cheques, on presentation to the bank, were returned with the endorsements "insufficient funds/payment stopped by the drawer". Legal notice issued by the complainant had no avail and, therefore, the complainant presented a complaint under Section 200 of the Cr.P.C. against the petitioner alleging the offence under Section 138 of the N.I. Act.

(2.) AFTER appearance of the parties before the trial court, the evidence of the complainant was adduced as P.W. 1 along with 13 documents and the accused examined himself as D.W.1 and relied on Ex. D -1, a note book. The trial court, after appreciating the evidence on record, held that the accused had committed the offence under Section 138 of the N.I. Act and consequently, he was convicted and sentenced as aforesaid. The lower appellate court also agreed with the trial court and dismissed the appeal preferred by the accused.

(3.) THE Learned Counsel pointed out from the judgment of the trial court that no finding is given with regard to the existence of legal recoverable debt and, therefore, the judgments of the courts below are liable to be interfered with by this Court. Section 138 of the N.I. Act was also brought to the attention of the court to contend that the cheque, though is presumed to have been issued towards discharge, in whole or in part of any debt or other liability, yet the burden is there on the complainant to establish that there exists legally recoverable debt towards the satisfaction of which the cheques in question were issued. Therefore, the petition be allowed by setting aside the judgments of the courts below.