M.S. Devendrachari vs Smt. Varalakshmamma

A.N. Venugopala Gowda

On a complaint filed by the respondent herein in C.C. No.28855/2006, learned XVI Addl. CMM, Bangalore City, found the petitioner herein guilty of an offence under S. 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act'') and sentenced him to pay fine amount of Rs. 2,20,000/- and in default of payment of fine, to undergo S.I. for one year. Out of the fine amount, if realized, Rs. 2,00,000/- was ordered to be paid to the complainant. Feeling aggrieved, accused preferred Crl.A.No.504/2008 in the Sessions Court of Bangalore City. Appeal having been assigned to the Fast Track (Sessions) Judge, upon consideration, having found to be devoid of merit, was dismissed on 24.10.2009. This revision petition is directed against the said orders. Heard learned Advocates appearing on both sides and perused the record.

Parties are related to each other. Petitioner - accused has married the elder sister of the respondent. Petitioner - accused does not dispute the fact that the cheques - Exs.P2 & P3 belong to him. Said cheques, on presentation were returned as per Exs.P4 and P5. Demand notice is at Ex.P6. Neither the cheque amount was paid nor any reply was sent. Hence, complaint vide Ex.P1 was filed. Complainant has deposed as PW-1 and has examined one Rajanna as PW-2 and has marked Exs.P1 to P10. Accused was examined under S. 313 Cr.P.C. He denied the incriminating materials appearing against him in the evidence of PWs 1 and 2. Later, he deposed as DW-1 and produced four documents, marked as Exs.D1 to D4. Learned Magistrate having found that Exs.P2 and P3 were issued by the accused and since the same were returned by the bank and notice having been issued within the time allowed and complaint having been lodged within the period of limitation, an offence under S. 138 of the Act having been made out, held the accused guilty and sentenced him as above.

Upon re-appreciation of evidence, Appellate Court having found that the defense of the accused is not probable, in view of the presumption under S. 139 of the Act, the appeal was dismissed.

Indisputably, petitioner has deposited Rs. 1,10,000/- in the Trial Court, in pursuance of the interim orders passed in the matter. Learned advocate appearing for the petitioner though contended that Exs.P2 and P3 were not issued to the petitioner but to her husband, in view of the finding of fact concurrently recorded by the Courts below, I do not find any merit in the contention. Perusal of Exs.P2 and P3 would show that the same were drawn in favour of the complainant i.e., the respondent herein and the same having been returned by the bank, Courts below are justified in raising the presumption under S. 139 of the Act, as defense sought to be put forth being not probable, is not sufficient to rebut the statutory presumption. The Courts below have correctly considered the matter and the findings recorded are neither perverse nor illegal. Hence, the conviction of the petitioner for the offence under S. 138 of the Act does not warrant interference. However, the sentence imposed on the petitioner - accused is excessive. Exs.P2 and P3 having been issued for Rs. 1,50,000/-, sentence imposed in the form of fine, keeping in view the close relationship between the parties ought to have been for Rs. 1,60,000/-. To the said extent, the Appellate Court has erred in not modifying the sentence imposed by the Trial Court. Consequently, interference with regard to the quantum of fine / sentence is necessary.

In the result, petition with regard to finding of conviction is concerned, stands dismissed. Sentence imposed on the petitioner by the learned Trial Judge and affirmed by the learned Appellate Judge is modified. Petitioner - accused is sentenced to pay fine of Rs. 1,60,000/-. In case of default in the matter of payment of fine amount, accused - petitioner shall undergo S.I. for a period of 6 months. If the fine amount is realized, Rs. 1,59,000/-, out of the same, be paid to the complainant as compensation. The amount in deposit be released in favour of the petitioner.

Two months'' time is granted for deposit of balance fine amount. In case the fine amount is not deposited within two months, bail bonds shall stand cancelled and the petitioner shall surrender before the learned Magistrate to serve the custodial sentence.