B Meenakshi vs Arathi

N. Ananda, J.—There are concurrent findings of courts below that petitioner (accused) has committed an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). I have heard Sri P.N. Manmohan, learned counsel for petitioner (accused) and Sri Y.S. Shivaprasad, learned counsel for respondent (complainant).

The learned counsel for petitioner has made following submissions:-

I. The courts below have not properly appreciated evidence on Ex. D.1-settlement arrived between parties.

II. The courts below have not properly appreciated evidence of complainant as also evidence of accused.

III. The contents of Ex. D.1 and admissions of respondent-complainant (PW1) would clearly establish that petitioner-accused had borrowed a sum of Rs. 60,000/- from respondent-complainant and her brother-in-law had discharged the same on 04.09.2009. The complainant and DW2 (on behalf of accused) had entered into settlement dated 04.09.2009.

The learned counsel for respondent-complainant would submit that in the aforestated settlement (Ex. D.1), there is no reference to cheque drawn by petitioner in favour of respondent. The petitioner has categorically admitted that she had drawn cheque and she had filled the contents of cheque. The petitioner has also admitted that she had borrowed a sum of Rs. 1,60,000/- from respondent and repaid a sum of Rs. 60,000/-. In order to repay a sum of Rs. 1,00,000/-, petitioner had issued the dishonoured cheque. In the circumstances, the courts below were justified in convicting petitioner for an offence punishable u/s 138 of the Act.

The learned counsel for petitioner would submit that so called admission made by petitioner cannot be considered as decisive in view of the fact that bundle of questions were put to petitioner in a state of confusion, petitioner has made such an admission.

There are concurrent findings of courts below. This court while exercising revisional jurisdiction u/s 401 Cr.P.C., does not sit as a court of second appeal. This court can interfere with the impugned judgment if the courts below have committed glaring errors in appreciation of evidence or errors of law resulting manifest injustice to petitioner.

On careful consideration of judgments of courts below, I find that much reliance cannot be placed on the evidence of DW2, who in fact has acted on behalf of petitioner to bring in settlement in terms of Ex. D.1. DW2 has admitted that in terms of settlement (Ex. D.1) on 04.09.2009, petitioner has agreed to repay a sum of Rs. 60,000/- to respondent. This admission would falsify contents of Ex. D.1 that on the date of execution of Ex. D.1, petitioner, represented by DW2 had repaid a sum of Rs. 60,000/- to respondent. The petitioner in clear terms has admitted her signature on cheque and she had filled the contents of cheque. The petitioner has also admitted that she had borrowed a sum of Rs. 1,60,000/- and has repaid a sum of Rs. 60,000/-. In order to repay a sum of Rs. 1,00,000/-, petitioner had executed Ex. D.1. In view of this categorical admission, the courts below have rightly held that respondent has proved essential ingredients of section 138 of the Act.

The learned counsel for petitioner would submit that respondent had not caused legal notice as required u/s 138 of the Act. The legal notice was returned with a postal endorsement "address insufficient".

The trial court as also I-appellate court on consideration of the contents of address have held that there was service of notice as notice was sent to the correct address of petitioner. Therefore, this cannot be a ground to interfere with the impugned judgment. In view of the above discussion, I pass the following:-

ORDER

The revision petition is dismissed.