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Judgment
N. Ananda, J.—The appellant (hereinafter referred as ''complainant'') had initiated a complaint against respondent (hereinafter referred as ''accused''), alleging an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short, ''the Act''). The trial court tried and convicted accused, directing him to pay compensation of Rs. 50,000/- and sentenced to undergo simple imprisonment till raising of the court. Therefore, accused was before I-appellate court. The learned Judge of I-appellate court has passed the following order:-
Therefore by analyzing the above evidences it goes to prove the fact that the complainant had lent an amount of Rs. 10,000/- only and towards that cheque is issued for security purpose and complainant has misused the cheque and to that aspect accused has successfully rebutted the presumption. Therefore, there is need to interfere in the order passed by the trial court. Accordingly, I answer the above point is in the Affirmative. In the result, I proceed to pass the following:-
ORDER
The Criminal Appeal No. 32/2004 is hereby allowed in part.
The judgment of conviction and sentence dated 19.12.2003 passed in CC. No. 726/2003 for the offence punishable under Sec. 138 of N.I. Act is hereby modified and accused shall pay compensation of Rs. 10,000/- to the complainant and in default to pay the amount accused shall undergo simple imprisonment for a period of 12 hours from 6-00 a.m., to 6-00 p.m.
I have heard Sri Cyril Prasad Pais, learned counsel for complainant.
In the penultimate portion of order, learned Judge of I-appellate court has come to conclusion that complainant had misused cheque and accused has successfully rebutted presumption. The learned Judge of I-appellate court having recorded said finding has modified the judgment of conviction passed by trial court, directing accused to pay compensation of Rs. 10,000/-, in default to undergo simple imprisonment for a period of 12 hours from 6 a.m. to 6 p.m. In my considered opinion, the findings recorded by learned Judge of I-appellate court are mutually contradictory. Therefore, the impugned judgment cannot be sustained.
In the result, I pass the following:-
ORDER
The appeal is accepted. The impugned judgment is set aside. The matter is remanded to I appellate court for reconsideration in the light of the observations made herein and in accordance with law. Office is directed to send back records along with a copy of this judgment.