H.K. RAMESH Vs. B.A. SRINIVAS MURTHY

JUDGEMENT

(1.) This petition is filed challenging the judgment of conviction dtd. 14/11/2017 passed by the Principal Civil Judge and JMFC., Kolar in CC.No.151/2013, convicting him for an offence punishable under Sec. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ' NI Act , 1881' for short) and the consequent sentence of simple imprisonment for a period of one year and to pay a fine of Rs.8,10,000.00 and in default of payment of fine, he was ordered to undergo simple imprisonment for a period of three months. The petitioner has also challenged the judgment dtd. 1/10/2018 passed by the I Additional Sessions Judge, Kolar in Crl.A.No.52/2017, by which, the judgment of conviction passed by the trial Court was upheld.

(2.) The respondent claimed that he knew the petitioner and that the petitioner had requested for a hand loan of Rs.8,00,000.00 and assured to repay it within 8 months. Accordingly, the respondents paid a sum of Rs.8,00,000.00 by cash, which he drew from his account. After eight months when he requested the petitioner to repay the loan, the latter issued a cheque bearing No.335202 dtd. 25/6/2012 for a sum of Rs.8,00,000.00. However, when the cheque was presented for encashment, it returned unpaid on 27/6/2012 as the account was closed. The respondent caused a notice of demand on 7/7/2012, which was served on the petitioner, who replied denying his liability. The respondent therefore initiated proceedings for prosecution of the petitioner for the offence punishable under sec. 138 of NI Act, 1881. The sworn statement of the respondent was recorded and CC.No.151/2013 was registered. The petitioner was served with the process, who pleaded not guilty and claimed to be tried. The respondent was examined as PW.1 and he marked Exs.P1 to P9. The statement of the petitioner was recorded under Sec. 313 of Cr.P.C., but he denied the incriminating evidence against him. The petitioner was examined as DW.1 and he marked Ex.D1 and D2. He contended that the sister of the respondent had also filed a case as per Ex.D2.

(3.) Based on the oral and documentary evidence, the trial Court held that the issuance of cheque was admitted by the petitioner. It held that the petitioner was not able to establish his defense that he had issued the cheque in question to a person named Srinivasa Gowda and not to the respondent. It held that the petitioner was unable to rebut the presumption under sec. 139 of NI Act, 1881 and therefore, convicted him for the offence and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.8,10,000.00. Being aggrieved by the said judgment, the petitioner filed Crl.A.No.52/2017, which too was dismissed.