D.K. DEVENDRA Vs. VENKATESH H.

JUDGEMENT

(1.) The revision petitioner has been convicted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 by the XXIII Additional CMM, Mayo Hall Unit, Bangalore in C.C. No. 26373 of 2008 by order dated 26-11-2009, which has been confirmed by the Fast Track Court-Ill, Bangalore City in Cri. A. No. 25145 of 2009 by order dated 8-4-2010. Questioning the legality and correctness of the orders passed by both the Courts below, this revision petition is preferred under Section 397 read with Section 401 of Criminal Procedure Code, 1973. The petitioner was the accused and the respondent was the complainant before the Magistrate. Towards repayment of the consideration amount, the accused issued a cheque for Rs. 5.00 lakhs on 30-4-2007 drawn on Andhra Bank, Cooke Town Branch, Bangalore in favour of the complainant. On presentation of the cheque, it came to be dishonoured with an endorsement insufficient funds. The complainant informed the factum of dishonour of the cheque to the accused by issuance of legal notice by RPAD and called upon to pay the cheque amount. There was no response from the accused. So a complaint came to be filed against the accused for the offence punishable under Section 138 of N.I. Act. The accused having pleaded not guilty to the charges levelled against him, the complainant examined himself as P.W. 1 and marked Exs. P. 1 to P. 9. On behalf of the accused, three witnesses came to be examined as D.Ws. 1 to 3, apart from marking Exs. D. 1 and D. 2. The learned Magistrate upon hearing both the learned Counsel and upon appreciation of the evidence by his order dated 26-11-2009 convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced him to pay fine of Rs. 5,60,000/-. Cri. A. No. 25145 of 2009 filed by the accused challenging his conviction and sentence came to be dismissed by order dated 8-4-2010. Therefore, the petitioner-accused is before this Court.

(2.) The fact that the accused issued a cheque for Rs. 5.00 lakhs in favour of the complainant is borne out from Ex. P. 8-agreement, wherein, the cheque in question bearing No. 797168, dated 30-4-2007 finds a place at Sl. No. 9. The reason for issuance of cheque in question apart from other 11 cheques is borne out from Ex. P. 8-agreement entered into between the parties. The complainant and his family members sold the property bearing Sy. No. 39/11 measuring 1 acre 20 guntas of Kodigehalli Village to the nominee of the accused-V. Narayanaswamy as desired by him. Part of the sale consideration was paid and for the remaining amount of Rs. 75.00 lakhs, the accused issued a cheques including the cheque in question in favour of the complainant, which is marked as Ex. P. 1. On presentation of the cheque, it came to be dishonoured as could be seen from Ex. P. 2-the cheque return memo. Thereafter, a legal notice came to be issued to the accused informing the factum of dishonour of the cheque and called up him to pay the cheque amount on 8-10-2007. The notice was sent to him by RPAD on two addresses as could be seen from Ex. P. 4-postal slip for having sent notice by RPAD and Ex. P. 5 is postal acknowledgment for having sent notice by under certificate of posting. Exs. P. 6 and P. 7 are the postal acknowledgment due for having received the notice by the accused sent to him by RPAD. Ex. P. 9 is the absolute sale deed in respect of property sold by the complainant and his family members to the nominee of the accused-V. Narayanaswamy. Thus from the oral evidence of the complainant coupled with the documents-Exs. P. 2 to P. 7, it is obvious that the complainant has fulfilled all the mandatory requirements to file a complaint under Section 138 of N.I. Act. The very fact that the cheque came to be issued, a presumption has to be drawn under Section 139 of N.I. Act, that it is issued towards discharge of the debt or liability. The presumption also includes the existence of liability. Even otherwise, the complainant by producing Ex. P. 8 an agreement and Ex. P. 9-the certified copy of the sale deed established the existence of debt. There is a document for having issued cheque in question by the accused to the complainant in relation to the sale of land by the complainant and his family members to the nominee of the accused. Even witness-D.W. 2 examined on behalf of the accused has admitted that the accused has to pay the amount shown in Ex. P. 1-cheque to the complainant. But even after dishonour of the cheque, the accused failed to pay the cheque amount and thereby he committed an offence punishable under Section 138 of N.I. Act. So the learned Magistrate on proper appreciation of the evidence has convicted the accused for the offence punishable under Section 138 of N.I. Act and sentenced him to pay fine of Rs. 5,60,000/-. The Sessions Judge on reappreciation of evidence has confirmed the judgment of conviction and sentence passed by the Magistrate. I do not find any ground made out by the accused so as to call for my interference. There is no merit in this revision petition. Hence, criminal revision petition is dismissed.