GANESH KUMAR Vs. HARISHCHANDRA

JUDGEMENT

(1.) THIS revision petition is against the order dated 11.9.2007 in C.C. No. 204/2006 on the file of V JMFC, Mangalore convicting the accused/petitioner for the offence punishable under Section 138 of N.I. Act and sentencing him to pay fine of Rs. 50,000/ -, which has been confirmed in Crl. A. No. 240/2007 on the file of Fast Track Court, Mangalore by order dated 22.2.2011. The revision petitioner was the accused before the Magistrate and the respondent was the complainant. The case of the complainant before the Magistrate was that in the month of August 2005, accused approached the complainant and borrowed a hand loan of Rs. 50,000/ -. For repayment of the loan amount of Rs. 50,000/ -, the accused on demand issued a cheque for Rs. 50,000/ - dated 8.12.2005 drawn on Canara Bank, Mangalore. On presentation of the cheque for collection, it came to be dishonoured with an endorsement 'insufficient funds'. A notice came to be issued by the complainant to the accused informing the factum of dishonour of the cheque and calling upon him to pay the cheque amount within a period of 15 days from the date of the receipt of notice. Since the accused failed to pay the cheque amount, he committed an offence and thereby a complaint came to be filed for the offence punishable under Section 138 of N.I. Act before the Magistrate. In response to the summons, the accused appeared and pleaded not guilty.

(2.) THE complainant in order to prove the offence committed by the accused, examined himself as PW -1 and got marked Ex -P1 to P4. The accused on the other hand in defence examined the manager of Canara Bank as DW -1 and he got himself examined as DW -2 apart from marking Ex -D1 -D4. The learned Magistrate upon hearing both the learned counsel appearing for the complainant and the accused and on consideration of the evidence placed on record both oral and documentary by his order dated 11.9.2007 found the accused guilty and thereby convicted him for the offence punishable under Section 138 of N.I. Act. Crl. A. No. 240/2007 filed by the accused before the Fast Track Court, Mangalore, Dakshina Kannada, questioning the legality and correctness of the order passed by the Magistrate, came to be dismissed. Aggrieved by the orders passed by the Magistrate and the Sessions Judge, this revision petition is preferred.

(3.) LEARNED counsel for the complainant -respondent on the other hand has submitted that the cheque in question was issued by the accused towards discharge of his debt, which he had taken in order to fulfill his financial requirement. Even after issuance of notice, he failed to pay the cheque amount within stipulated time and thereby he has committed an offence punishable under Section 138 of N.I. Act. Though the petitioner examined DW -1 and DW -2 and marked Exs -D1 to D4, the learned Magistrate has appreciated the evidence of DW -1 and DW -2 and Ex -D1 to D4 and found that the accused committed an offence under Section 138 of N.I. Act. The learned Sessions Judge also confirmed the finding of the Magistrate. There is no merit in this revision petition and hence learned counsel sought for dismissal of the revision petition.