LILY JOSEPH Vs. K.CHANDRASHEKAR

JUDGEMENT

(1.) This revision petition is filed by the accused challenging the judgment of conviction dtd. 4/1/2013 passed by the XXII Additional Chief Metropolitan Magistrate and XXIV Additional Small Causes Judge, Bengaluru City in C.C.No.17839/2004 convicting her for the offence punishable under Sec. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881' for short) and the consequent sentence to pay fine of Rs.15,30,000.00. The petitioner has also assailed the judgment dtd. 11/6/2014 passed by the Presiding Officer, Fast Track Court (Sessions)-XI, Bengaluru in Crl.A.No.129/2013, by which, the Sessions Court upheld the judgment of conviction.

(2.) The records disclose that the respondent claimed that he had advanced a hand loan of Rs.15,00,000.00 to the petitioner to meet an emergency. The respondent claimed that despite several demands, the petitioner failed to return the amount. Thereafter, the petitioner passed on three cheques for Rs.5,00,000.00 each, all drawn on State Bank of India, Basaveshwarnagar Branch, Bengaluru. The said three cheques when presented for encashment, returned unpaid with the endorsement 'funds insufficient'. The respondent caused a notice of demand, which was duly served on the petitioner, but he neither replied to the notice nor repaid the amount payable under the cheque. The respondent therefore initiated prosecution of the petitioner for the offence punishable under Sec. 138 of NI Act, 1881. The process in the case was served on the petitioner, who appeared before the Court and was released on bail. His plea was recorded and he pleaded not guilty and claimed to be tried. The respondent was examined as PW.1 and he marked Exs.P1 to P10. The petitioner was examined as DW.1 and she marked Exs.D1 to D6. During the course of the proceedings, the petitioner filed an application for comparison of her signatures found on the cheques at Exs.P2 to 4 for forensic examination. The said application was allowed and the admitted signature as well as the disputed signatures on the cheques were referred for forensic examination. However, for reasons that were beyond the control of the trial Court, no report was secured.

(3.) The trial Court based on the oral and documentary evidence held that the petitioner/accused though claimed that she had lodged a complaint with the bank and the Police about the loss of the cheques in question, did not place any authentic material to establish it. Ex.D6 which was a letter allegedly addressed by the petitioner to the bank was not proved in accordance with law as the postal acknowledgement at Ex.D4 did not relate to the parcel bearing No.5525 found in Ex.D3. It also held that the letter at Ex.D6 though dtd. 26/6/2004, was allegedly sent by registered post on 29/6/2004, which was much prior to the dates mentioned on the cheques i.e., 30/6/2004, 10/7/2004 and 20/7/2004. The trial Court therefore held that the petitioner even after being notified of the dishonour of the cheques in terms of the notice of demand at Ex.P10, failed to reply to the notice and thus, held that the defence of the petitioner was not probable. The trial Court also noticed the evidence of the petitioner who claimed that she came to know about the loss of her cheques only when she received the summons from the Court. Therefore, the trial Court held that the evidence of DW.1 did not corroborate Exs.D3 to D6 which were the notice sent to the bank intimating the loss of the cheques. Therefore, trial Court held that the defence adopted of the petitioner was an after thought and hence, held that the respondent had proved that the petitioner has committed an offence punishable under Sec. 138 of the NI Act, 1881 and consequently, convicted her for the said offence and sentenced her to pay fine of Rs.15,30,000.00. An appeal filed by the petitioner before the Appellate Court in Crl.A.No.129/2013 was also dismissed.