S KRISHNAMURTHY Vs. A R RAJAN

JUDGEMENT

(1.) This revision has been preferred by the petitioner/accused Krishnamurthy, against the Judgement dated 30-3-1992 in C. A. No. 36 of 1991, on the file of the learned Second Addl. Sessions Judge, Salem, confirming the conviction and sentence imposed upon him by the learned Judicial Magistrate No. 1, Salem by his Judgement dated 22-2-1991, in C.C. No. 288 of 1989, for the offence under S. 138 of the Negotiable Instrument Act (hereinafter referred to as 'Act').

(2.) The respondent A. R. Rajan is the Managing Partner of Mallur Jayalakshmi Finance. He filed a complaint against the petitioner/accused for the offences under S. 420, I.P.C. and S. 138 of the Negotiable Instrument Act, before the learned Judicial Magistrate No. 1, Salem, who in turn acquitted the accused of the charge under S. 420, I.P.C., but convicted him for the offence under Sec. 138 of the Act and sentenced him to undergo R.I. for six months and to pay a fine of Rs. 5,000/- in default to undergo R.I. for two months. Aggrieved over this judgement, the petitioner/accused filed an appeal in C.A. No. 36 of 1991, on the file of IInd Addl. Sessions Judge, Salem. The learned Sessions Judge, confirmed the conviction and sentence imposed upon the accused and while dismissing the appeal observed that as the accused is entitled to the benefit of remission as per G.O. Ms. No. 279 dated 23-2-1992, he need not undergo the said imprisonment of six months. Without satisfying the judgement of the First Appellate Court, the present revision has been filed by the petitioner in this Court.

(3.) The facts of the case are as follows :-The complainant A. R. Rajan is the Managing Partner of Mallur Jayalakshmi Finance. The accused/petitioner used to get loans along with his father from the said finance company. The loans obtained by the accused/petitioner, of Rs. 62,000/- dated 20-3-1985, Rs. 10,500/- dated 8-4-1985, Rs. 9,000/- dated 5-5-1986, Rs. 10,500/- dated 16-7-1986, Rs. 30,000/- dated 29-3-1988 and Rs. 20,000/- dated 2-12-1987, totalling about Rs. 1,42,000/- have not been settled by him. Part interest due on the above principal has also not been paid by the accused. When the complainant insisted the accused for settlement of the above loans, the petitioner assured that he would discharge the entire amount by one stroke on or before 15th April 1989, after disposing his landed properties. On 22-4-1989, both the parties arrived at a settlement for the total principal due to the tune of Rs. 1,22,000/- and the loan of Rs. 20,000/- dated 2-12-1987 was given up. For the said amount interest was calculated @ 18% p.a. which comes about Rs. 44,360/- and the total comes to Rs. 1,66,360/-. On the same day, the accused assured that he would pay the said amount by way of cheque next day, since he has already sold his landed properties. Next day, i.e., on 23-4-1989, the accused came and presented a cheque drawn at State Bank of India, for Rs. 1,66,360/-, to the complainant, stating that already the said amount was deposited in the bank and if the cheque is presented, it would be honoured immediately. He requested the complainant to hand over the pronotes executed by him on different dates, in respect of the various loans referred to above. Believing the statement of the accused to be true, the complainant returned the pronotes dated 20-3-1985, 8-4-1985, 5-5-1986, 16-7-1986 and 29-3-1988. When the cheque was presented on the next day i.e. on 24-4-1989, for encashment, to the shock and surprise of the complainant, the same was dishonoured, as 'refer to drawer' for want of sufficient funds. Thereafter, the complainant sent a legal notice dated 8-5-1989, to the accused demanding payment of the amount mentioned in the dishonoured cheque, within fifteen days from the date of notice. The accused/petitioner sent a reply stating that he never obtained any loan whatever from the complainant and that he never issued any cheque as his cheque book as well as pass book were lost and that the complainant has misused the same against the petitioner. On receipt of such a reply, the complainant/respondent filed a complaint against the petitioner/accused for the offences under S. 420, I.P.C. and S. 138 of the Act.