KRISHNA A. Vs. MALATHI B. PATIL

JUDGEMENT

(1.) JUDGMENT of conviction and order of sentence passed in a case related to dishonour of a cheque under S. 138 of the Negotiable Instruments Act, 1881 ("the Act" for short), affirmed in appeal is under challenge in this criminal revision petition filed by the accused.

(2.) RESPONDENT filed a private complaint under S.200 Cr.P.C., against the petitioner for an offence punishable under S.138 of the Act. It was alleged therein that the accused had borrowed Rs.10,00,000.00from her in the year 2005 for the purpose of developing his clinic as well as immovable property, with an assurance of repayment with interest within a period of 6 months. It was alleged that, payment as undertaken was not made and when consistently demanded, cheque bearing No.720923 drawn on Bank of Maharashtra, City Market Branch, Bangalore, for Rs.2,00,000.00, towards part payment of liability was issued and when the same was presented for encashment, on 5.1.2007, through Canara Bank, Vijayanagara Branch, Bangalore, cheque was returned unpaid for the reason "insufficient funds". A notice dated 22.1.2007 demanding payment of cheque amount was issued and the same was served on the accused on 25.1.2007. There being non- compliance with the demand made in the notice, complaint was filed to punish the accused for the offence under S.138 of the Act. Cognizance was taken. Sworn statement of the accused was recorded and finding prima facie case, a case was registered in C.C.No.7634/2007 and process was issued to the accused. The accused put in appearance and denied the accusation, when the same was put to him. During trial, complainant got herself examined as PW.1 and marked Exs.P.1 to P7. Accused was examined under S.313 Cr.P.C. and it is a case of denial. Subsequently, he got himself examined as DW.1 and marked Exs.D1 to D3, apart from Exs.C1 and C2. Considering the rival contentions and the record of the case, learned Magistrate found the accused guilty. Accused was convicted for the offence under S.138 of the Act and he is sentenced to pay fine of Rs.2,10,000.00, in default, to undergo simple imprisonment for a period of one year. Complainant was held entitled to compensation of Rs.2,05,000.00, in case of payment of fine by the accused and the balance amount was ordered to be credited to the State exchequer towards prosecution expenses. The accused questioned the said judgment in Crl.A.No.982/2009 in the Sessions Court, Bangalore City. The appeal having been dismissed, this Criminal Revision Petition has been filed.

(3.) SRI Subhash Shalgar, learned counsel appearing for the respondent/complainant, on the other hand, submitted that the issuance of Ex.P2 being not in dispute and the same having been returned by the petitioner's bank as per Ex.P3 for the reason of 'insufficient funds', demand notice Ex.P4 having been issued and there being no payment of cheque amount and also any reply, the complaint having been filed within the prescribed period and the complainant having deposed in the matter, the ingredients of S.138 of the Act has been met. Learned counsel submitted that in the facts and circumstances of the case, the Courts below were justified in applying the presumption under S.139 of the Act and in passing the impugned Judgments. Learned counsel further submitted that the defence of the accused being improbable, has rightly not been accepted and sought dismissal of the petition.