AUGUSTUS JEBA ANANTH Vs. ANSS RAJSHEKAR

JUDGEMENT

(1.) THERE is a delay of 63 days in filing the appeal. Notice of the application having been served on the respondent, the respondent remains absent. Hence, for the reasons stated in the affidavit in support of the application, the delay is condoned. I.A.2/2012 seeking special leave to file this appeal is granted. The appeal is considered for final disposal, having regard to the facts and circumstances, even after this stage.

(2.) THE appellant was the complainant before the Trial Court alleging an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act', for brevity), by the respondent herein. The complaint was resisted by the respondent who had entered appearance on service of summons and it was sought to be urged that there was no transaction pursuant to which such a cheque could have been issued. The complaint was to the effect that the respondent had borrowed a sum of Rs. 15,00,000/ - in February 2004 and since there was a demand for repayment, the accused had issued a cheque for a sum of Rs. 5,00,000/ - dated 9.3.2005 in favour of the complainant, in partial discharge of the loan. The same when presented for encashment, had returned with the banker's endorsement that there were insufficient funds. The complainant is then said to have issued a notice in terms of Section 138 of the NI Act, to which the accused had replied denying the transaction. The respondent having stood trial, the Trial Court had found that the allegations were proved and the respondent was accordingly convicted and sentenced to pay a fine of Rs. 6,75,000/ -. The same having been challenged in appeal, the Appellate Court however has taken a completely different view and has held that in the course of cross -examination, the appellant was not in a position to substantiate as to how he had the source to lend money to the respondent, placing reliance on the decision in Krishna Janardhan Bhat v. Dattatreya G. Hegde : AIR 2008 SC 1325, while the appellant had cited a later judgment by a particular Bench in Rangappa v. Mohan : AIR 2010 SC 1898.

(3.) CONSEQUENTLY , the sentence imposed by the Trial Court is modified to the effect that the respondent shall pay a fine of Rs. 5,10,000/ -, of which Rs. 5,00,000/ - shall be paid as compensation under Section 357 (2) Cr.P.C, to the complainant. In the event of default on the part of the respondent to pay the fine, he shall suffer simple imprisonment for three months.