SATHYANARAYANA JETTY Vs. SHIVALINGAIAH

JUDGEMENT

(1.) Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents.

(2.) The factual matrix of the case is that the petitioner herein had approached the complainant during the first week of November 2005 and requested for hand loan of Rs.2.00 lakh to meet his business commitments. Accordingly, the complainant agreed to pay the amount of Rs.2.00 lakh and paid the same on 6/11/2005 with a condition to repay the same within three months along with the interest at the rate of 12% p.a. and the accused had issued a post dated cheque dtd. 6/2/2006 stating that the loan amount will be cleared on the said date. On the assurance of the accused, the complainant had presented the said cheque for encashment and the same was returned with an endorsement 'funds insufficient'. Hence, the legal notice was issued to the petitioner herein through registered post as well as certificate of posting. Inspite of service of notice, he did not comply with the demand. Hence, the complaint was filed under Sec. 200 of Cr. P.C. for the offence pus 138 of N.I. Act. Thereafter, the Trial Court taken cognizance and complainant in order to substantiate his contention examined himself as PW1 and got marked the doc at Ex.P1 to P11. On the other hand, the petitioner herein was examined as DW1 and not marked any document. The defence of the petitioner herein before the Trial Court is that he was not aware of the complainant and he had issued the cheque in favour of the complainant's son in order to stand as guarantor for his loan since he is in need of money. The Trial Court after considering the oral and documentary evidence available on record, convicted the petitioner and ordered to pay fine of Rs.3.00 lakh as against the cheque amount of Rs.2.00 lakh and default sentence also imposed. Hence, an appeal was preferred by the petitioner in Crl.A. No. 60/2012. The Appellate Court also on re-appreciation of evidence, dismissed the appeal and confirmed the order of the Trial Court. Hence, the present revision petition is filed.

(3.) The learned counsel appearing for the petitioner would submits that the Trial Court at the first instance acquitted the petitioner and thereafter he had filed an appeal in Crl.A. No. 465/2010 and the matter was ordered for retrial and after the retrial, the petitioner was convicted for the offence punishable under Sec. 138 of N.I. Act and thereafter, an appeal was filed. The counsel further submits that the complainant was not having any source of income to lend the amount of Rs.2.00 lakh and not produced any document before the Trial Court. The counsel also would submit that no cheque was issued in favour of the complainant and cheque was issued in favour of the complainant's son since he was in need of money in order to avail the loan, he had issued the said cheque. The counsel would submit that there was a delay in lodging the complaint and delay was condoned without giving any notice. The counsel would submit that the complainant was not aware of the address of the petitioner and he had issued notice to two addresses and notice was also not served and inspite of all these material contradictions, the Trial Court committed an error in convicting the petitioner for the offence punishable under Sec. 138 of N.I. Act. The counsel further submits that the Appellate Court also failed to re-appreciate the material available on record and not considered the grounds which have been urged before the Appellate Court and committed an error in confirming the order of the Trial Court. Hence, it requires interference of this Court.