PUSHPA Vs. P BALASUBRAMANIAN

JUDGEMENT

(1.) While Crl. R.C. 1334 of 2005 is filed by the complainant for enhancement of sentence awarded to the accused Crl. R.C. 37 of 2011 is filed by the accused against his conviction and sentence for the offence under Section 138 Negotiable Instruments Act in C.C. No. 7 of 2005 as confirmed in Crl. A. No. 79 of 2005. The complaint proceeds as if, the accused borrowed a sum of Rs. 1,00,000/- and Rs. 1,50,000/- on 20.08.2001 and 25.08.2001 respectively from the complainant and on the same day, the accused issued two post dated cheques for each Rs. 50,000/- and one cheque for Rs. 1,50,000/- and all the three cheques were presented for collection on 01.03.2002 and the cheques were returned dishonoured for want of sufficient funds and on receipt of the debit memo from the Bank concerned, legal notice was issued to the accused, and the accused having admitted his liability sought for extension of time till 15.06.2002 and issued two new cheques for Rs. 1,50,000/- and Rs. 1,00,000/- dated 15.06.2002 and both the cheques were presented for collection on 08.08.2002 and the same were dishonoured for want of sufficient funds and the same compelled the complainant to issue fresh statutory notice and neither the same was replied nor the cheque amount was repaid thereby the accused committed the offence punishable under Section 138 Negotiable Instruments Act.

(2.) The complainant in order to prove his case examined himself and the Bank officials as PW 1 to PW 4 and produced the cheques in question, debit memo issued by the Bank concerned, copy of the statutory notice, postal receipt, postal acknowledgment, ledger extract, cheque return register, extract for the accounts maintained by the accused as well as the complainant as Ex. P1 to Ex. P21. The accused examined himself and his witnesses as DW 1 and DW 2 and no document was adduced on his side.

(3.) Both the Courts below, on the admission made by the accused about the issuance of the cheque, raised the presumption under Section 139 of the Negotiable Instruments Act in favour of the complainant and on the failure of the accused to adduce sufficient satisfactory rebuttal evidence to dislodge the legal presumption so raised in favour of the complainant and on the basis of other materials and admissions made by the accused regarding his liability and issuance of cheque, accepted the complainant case and convicted the accused for the offence under Section 138 Negotiable Instruments Act and sentenced him to undergo rigorous imprisonment for two months and to pay fine of Rs. 5,000/-. Aggrieved against the judgment of conviction and sentence and quantum of sentence imposed by Courts below, both the accused and the complainant have preferred the present two criminal revisions before this Court for the relief stated above.