NAGARAJ Vs. GOWRAMMA

JUDGEMENT

(1.) THIS petition is directed against the order dated 25-6-1999 passed by the XIII Addl. Chief Metropolitan Magistrate, Bangalore, in C. C. No. 16399/97 and order dated 26-9-2001 passed by the I Addl. City Civil and Sessions Judge, Bangalore, in Crl. R. P. No. 239/99, whereby the Addl. C. M. M. , Bangalore, convicted this petitioner for an offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to "the N. I. Act")and sentencing him to pay a fine of Rs. 10,000/-, in default to pay the fine amount he shall suffer S. I. for two months. Whereas, 1st Addl. City Civil and Sessions Judge allowed Crl. R. P. No. 239/99 filed by the respondent for inadequate sentence awarded by the trial court under Section 397, Cr. P. C. Therefore, assailing both the orders the petitioner has come up with this petition under Section 482, Cr. P. C. on the ground that the learned sessions Judge exceeded his jurisdiction and exercised revisional jurisdiction provided under the Criminal Procedure Code, 1973 which amounts to abuse of due process of law and miscarriage of Justice. Further, it is alleged that, though the alleged cheque, as shown in the complaint is totally different from that of cheque mentioned in the complaint but the learned Sessions judge has not taken into consideration about the defence of this revision petitioner accused. On this ground alone instead of dismissing the revision petition the learned Sessions Judge allowed it and enhanced the fine amount from Rs. 10. 000/- to rs. 65. 000/- which is illegal, abuse of due process of law and miscarriage of justice. Hence this petition.

(2.) THE brief facts leading to this case are that the revision petitioner herein borrowed a sum of Rs. 60,0007- from the respondent on 6-2-1996 and executed consideration receipt agreeing to repay the same with interest within 10 months. On demand he issued a cheque dated 5-10-1996 for rs. 60. 000/ -. Since the petitioner failed to pay the said amount the respondent presented the said cheque to his bank but it was returned with an endorsement "insufficient funds". Therefore the demand notice has been issued by the respondent calling upon the petitioner to pay the said amount. Even then the petitioner failed to pay the amount. Therefore he filed a private complaint under Section 138 of the N. T. Act, after recording the sworn statement of the respondent Addl. C. M. M. took cognizance and issued the process. After appearance of this revision petitioner accused a charge was framed, thereafter the respondent examined herself as P. W. 1 and got marked the documents Exs. PI to P5 and closed her case. But the petitioner herein did not choose to adduce any evidence to prove his contention/defence, therefore after considering the materials placed on record the Addl. C. M. M. convicted and sentence this revision petitioner to pay a fine of Rs. 10. 000/ -.

(3.) FEELING aggrieved by the said order he preferred Crl. A. 206/1999. After reappreciation of the evidence and the materials placed on record the learned I Addl. City Civil and sessions Judge dismissed the appeal. In the meantime the respondent-complainant had filed Crl. R. P. No. 239/99 for inadequate sentence awarded by the learned Magistrate on the accused who was convicted under section 138 of the Negotiable Instruments act. The learned Addl. City Civil and Sessions judge, after considering the materials placed on record enhanced the fine amount from rs. 10. 000/- to Rs. 65. 000/-, in case of default of payment of fine, the sentence was also enhanced to undergo simple imprisonment from two months to 6 months.