UMMER HAJI Vs. AZEEZ

JUDGEMENT

(1.) The revision is by the accused convicted for the offence under Section 138 of Negotiable Instruments Act (for short 'N.I. Act'.) concurrently by the two inferior Courts. The trial Magistrate on his conviction has sentence him to undergo imprisonment till the rising of Court with direction to pay a sum of Rs.7,50,000/-(rupees seven lakhs fifty thousand only) as compensation to the complainant and in default simple imprisonment for a period of six months. In appeal the leaned Sessions Judge affirmed the conviction and also the sentence without any modification. Feeling aggrieved the accused has preferred this revision petition.

(2.) Two cheques issued by the accused one for a sum of Rs.5,00,000/-(rupees five lakhs only) and the other for a sum of Rs.2,50,000/-(rupees two lakhs fifty thousand only), both of them on presentation were dishonoured due to stop payment order issued by him was the case of the complainant/1st respondent. After issuing a statutory notice which was returned not claimed prosecution proceedings were launched against the accused filing the complaint imputing the offence under Section 138 of N.I. Act. The accused in defence has contended that he had no transaction with the complainant and two cheques were issued by him to one Assainar Haji towards a transaction relating to purchase of immovable property from him. Such cheques drawn with the columns of payee and date left blank and the other entries filled up and signed by him, had been misused by the said Haji, through the complainant, his brother in law after agreement of sale had fallen due, was the case of the accused. He had a further case that he had partnership business with the said Assainar Haji while both of them were in Gulf Countries. Notice of dishonour was not served on him and the stop payment was issued since he had no liability to be discharged even to Assainar Haji on the basis of cheque, was his further case. On the materials placed by both sides the trial Magistrate found the case of the complainant established and that of the accused unworthy of any merit.

(3.) Per contra, the learned counsel appearing for the complainant adverting to the reasonings expressed by both the Courts, contended that there is no infirmity whatsoever in the conclusions formed concurrently to hold the accused guilty of the offence imputed where the handwriting expert has stated that a conclusive opinion cannot be given where capital letters are written in a detached manner unless it is shown to be incorrect, sending over the documents again to him collecting further writings from accused, in the given facts of the case, would have been only a futile exercise, and, therefore, turning down the application moved by the accused for examination afresh by the trial Magistrate was appropriate and correct, and, at any rate it cannot be canvassed to challenge the conviction as such is otherwise proved by the materials on record.