Judgment:
(This Crl.R.P. is filed under S.397 and 401 Cr.P.C. praying to set aside the order dated 6.6.2011 passed by the Court of III Addl. Senior Civil Judge & JMFC., Davanagere in C.C.No.463/2009 and order dated 21.10.2011 passed by the I Addl. District and Sessions Judge, Davanagere in Crl.A.No.79/2011.)
Order:
The respondent filed a complaint under S.200 Cr.P.C. against the petitioner alleging commission of an offence under S.138 of the Negotiable Instruments Act, 1381 (for short, the Act), as the cheque Ex.P1 dated 01.02.2006 for Rs.1,50,000/- issued in his favour was dishonoured by the bank vide Ex.P2 with remark account closed. Respondent had issued a notice / Ex.P3 demanding payment of the said cheque amount. Since payment was not made, complaint/Ex.P7 was filed.
2. Petitioner appeared and when the accusation was put to him, pleaded not guilty and during trial, complainant got himself examined as PW-1 and examined R. Jayappa as PW-2 and marked Exs.P1 to P8. Accused Petitioner was examined under S.313 Cr.P.C. and it is a case of denial. Later petitioner got himself examined as DW-1 and examined two others as DWs 2 and 3 on his behalf and marked Ex.D1. After trial, learned JMFC, Davanagere, convicted the petitioner under S.138 of the Act and sentenced him to undergo S.I. for a period of 6 months and pay fine of Rs.1,000/- and in default, to undergo S.I. for further period of 45 days. Accused was directed to pay compensation of Rs.3,00,000/- i.e., twice the cheque amount to the complainant. Accused challenged the conviction and sentence by filing Crl.A.79/2011, in the Sessions Court at Davanagere. The same came to be dismissed on 21.10.2011. Challenging the conviction and the order of sentence, accused has filed this criminal revision petition.
3. Sri. A. Hanumanthappa, learned advocate, contended that the Courts below have failed to appreciate the evidence in the correct perspective. He submitted that the complainant has failed to make out the ingredients of S.138 of the Act and there being no material with regard to the pre-existing debt, the judgment of conviction passed is illegal. He submitted that two blank cheques had been issued to one Ujjanappa, complainants sisters husband, for security purpose and the loan was repaid on 15.06.1998, which was acknowledged as per Ex.D1 and the evidence of DWs1 to 3 has not been correctly appreciated. According to the learned counsel, cheque/s having been misused by the respondent complainant, case/s were filed in the Trial Court to make a wrongful gain. Learned counsel submitted that the Courts below without appreciating the record of the case in the correct perspective, have passed the impugned Judgments and the same warrant interference. Alternatively, learned counsel submitted that the sentence imposed is highly excessive.
4. Sri. V.B. Siddaramaiah, learned advocate, on the other hand, supported the impugned Judgments and sought dismissal of the revision petition.
5. Perused the record. Point for consideration is:
Whether interference with the impugned Judgments is warranted?
6. Petitioner has admitted the fact that the cheque Ex.P1 belongs to him. Ex.P1 was returned by the bank with endorsement/Ex.P2 account closed. Demand notice Ex.P3 to pay the cheque amount was issued and the amount having not been paid, complaint Ex.P7 was filed.
7. The defence of the accused was that the cheque was issued for security purpose to Ujjanappa, who was the husband of sister of the respondent and the loan of Ujjanappa was repaid on 15.06.1998 as per Ex.D1. The cheque having not been returned by Ujjanappa, same has been misused by the respondent complainant.
8. Under S.139, Court has to presume that, unless contrary was proved, the holder of the cheque received the cheque for discharge, in whole or in part of a debt or liability. In a complaint filed for the offence under S.138 of the Act, Court has to presume that the cheque had been issued for an existing debt or liability. The said presumption is rebuttable. The burden of proving that the cheque had not been issued towards discharge of a debt or liability is on the accused as has been held in the case of Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16.
9. Though the petitioner adduced evidence by examining himself and two others to prove Ex.D1, he has not taken steps to summon and examine Ujjanappa. The burden to prove that, Ex.P1 was issued to Ujjanappa and the same has been misused by the complainant, was on the accused. The petitioner has failed to prove in the trial by leading cogent evidence that Ex.P1 was issued to Ujjanappa and the signature on Ex.D1 is that of Ujjanappa. Both the Courts below have concurrently found that the petitioner has failed to discharge the burden.
10. Since the petitioner has not discharged the burden cast on him and there being no dispute with regard to Ex.P1 having been issued by him and its return on the ground of the account closed, which was followed by a demand to pay the cheque amount, the complaint having been filed within the period of limitation and the material documents having been exhibited during the course of trial by the payee of the cheque, during whose cross-examination nothing material has been elicited to doubt his testimony, the ingredients of the offence under S.138 has been met. The statutory presumption under S.139 has not been discharged by the respondent. Hence, the conviction of the petitioner for the offence under S.138 of the Act by the Trial Court and its confirmation by the Appellate Court is justified.
11. However, taking into consideration the nature of the offence committed and the facts and circumstances of the case, the Courts below are not justified in directing the accused petitioner to pay compensation of Rs.3,00,000/- i.e., twice the amount of the cheque to the complainant. To the extent of imposition of fine, limited interference in the matter is warranted.
In the result, while confirming the conviction of the petitioner for the offence under S.138 of the Act, the sentence imposed on him is set aside. Petitioner is sentenced to pay fine of Rs.1,60,000/- and in default of payment of fine amount before 31.12.2012, to undergo S.I. for a period of 6 months.
If the fine amount is deposited or realized, the complainant be paid Rs.1,55,000/- by way of compensation.
Learned counsel submits that Rs.25,000/- has been deposited by the petitioner. If so, same be released in favour of the complainant and the balance fine amount be deposited before 31.12.2012.
If the fine amount is not deposited on or before 31.12.2012, the bail bonds shall stand cancelled and the petitioner shall surrender before the Trial Court to serve the jail sentence.