ANAND Vs. S. GOPALAKRISHNA

JUDGEMENT

(1.) The petitioner has called in question the judgment passed by the Judicial Magistrate First Class, Mandya (henceforth referred to as 'Trial Court' for short) in C.C.No.272/2011 convicting him for the offence punishable under Sec. 138 Negotiable Instruments Act, 1881 and consequent sentence directing him to pay a fine of Rs.2,82,000.00, failing which, he was directed to undergo simple imprisonment for one year, which was confirmed by the IV Addl. District and Sessions Judge, Mandya (henceforth referred to as 'Appellate Court' for short).

(2.) The facts as stated by the respondent/complainant are that the petitioner had borrowed a sum of Rs.2,80,000.00 from the respondent on 12/1/2010 and had issued a cheque bearing No.810686 dtd. 8/7/2010 towards discharge of the said loan. The said cheque on presentation for encashment was dishonoured as the account was closed. The respondent therefore, issued a notice of demand by RPAD as well as Certificate of Posting. The notice sent through RPAD was not claimed, while the one sent through Certificate of Posting was not returned. The respondent therefore, alleged that the petitioner had knowledge of the notice of demand but failed to comply with the demand and hence, initiated prosecution to prosecute the petitioner for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881. The sworn statement of the respondent was recorded and C.C.No.272/2011 was registered and process was issued to the petitioner. The petitioner appeared and pleaded not guilty and claimed to be tried. Consequently, the respondent was examined as PW.1 and Exs.P1 to P8 were marked. The statement of petitioner was recorded under Sec. 313 of Cr.P.C., who denied the evidence and examined himself as DW.1.

(3.) Based on the oral and documentary evidence, the Trial Court held that the petitioner was not able to establish his defence that he had given the cheque to a person named Mr.Krishna from whom he had borrowed a loan of Rs.10,000.00 and that the respondent took the cheque from the said Mr.Krishna and misused it. The Trial Court noticed that the petitioner did not deny his signature on the cheque and therefore, drew the presumption under Sec. 139 of the Negotiable Instruments Act, 1881. It held that the petitioner did not rebut the presumption by leading acceptable evidence. Consequently, it held that the cheque was issued towards discharge of a debt due by the petitioner to the respondent. In so far as the contention that the notice of demand was not served upon the petitioner, the Trial Court held that the respondent had complied with the requirement prescribed under proviso (a) to (c) of Sec. 138 . The Trial Court therefore, convicted the petitioner for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 and sentenced him to pay a fine of Rs.2,82,000.00 and in default, to undergo simple imprisonment for one year. The petitioner challenged this judgment of conviction and sentence before the Appellate Court in Crl.A.No.15/2018, which was dismissed.