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2003 DIGILAW 429 (AP)

Krutti Venkata Appa Rao v. Kaki Uma Shankara Rao

2003-03-13

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) THIS revision is filed against the order of the Court of Judicial Magistrate of First Class; Special Mobile Court, West godavari District at Eluru in C. C. No. 129 of 2002 dated 25-11-2002, insofar as it has not granted any compensation or has not imposed the punishment of imprisonment. The petitioner is the complainant before the trial Court. ( 2 ) WHEN the matter came up for admission on 4-2-2003, this Court ordered Notice before admission. Notice was sent by the court to the same address of the respondent that was furnished by the petitioner herein in the trial Court. It was returned with an endorsement "addressee left without instructions. Whereabouts not known. Returned to sender". The petitioner has also sent two notices, one was on 7-2-2003 and the other was on 25-2-2003. Both the notices were returned with the same endorsements. The petitioner has filed an affidavit stating that even as on today the respondent is residing in the same premises, to which notices were sent, and that it is his permanent residence. In view of these facts, this Court holds that the notice be deemed to have been properly served on the respondent. ( 3 ) SRI C. Praveen Kumar, learned counsel for the petitioner submits that the trial court had found that the respondent committed offence under Section 138 of Negotiable Instruments Act, in that, though he is sued a cheque for a sum of Rs. 70,000/- dated 30-7-2001, it was dishonoured when presented. He submits that once the trial court found him guilty of the offence, it could have either sentenced him to undergo imprisonment or exercised its discretion under sub-section (3) of Section 357, Cr. P. C. awarding compensation, instead of sentencing him to pay fine. ( 4 ) FROM a reading of the order of the trial Court it is evident that the respondent had borrowed a sum of Rs. 90,000/- from the petitioner and issued a cheque dated 30-7-2001 for a sum of Rs. 70,000/- It was dishonoured, when presented. The trial court recorded a finding that the complainant had discharged the initial burden of proving issuance of cheque, marked as Ex. P. 2. Thereby presumption has to be drawn as to the existence of legally enforceable debt. 90,000/- from the petitioner and issued a cheque dated 30-7-2001 for a sum of Rs. 70,000/- It was dishonoured, when presented. The trial court recorded a finding that the complainant had discharged the initial burden of proving issuance of cheque, marked as Ex. P. 2. Thereby presumption has to be drawn as to the existence of legally enforceable debt. The respondent did not adduce any evidence to rebut the statutory presumption, provided for under Section 139 of the Negotiable. Instruments Act. It was in this context that the trial Court found him guilty of the offence. To that extent there does not exist any controversy. In fact, the trial Court itself observed that the petitioner had proved all the ingredients, which are necessary to constitute the offence under Section 138 of negotiable Instruments Act. While considering the question of sentence, the trial court took into account, the fact, that the respondent is an unemployed and he is blessed with a daughter. It was in this context that it sentenced him to pay a fine of rs. 3. 000/- ( 5 ) CHAPTER-XVII of the Negotiable Instru ments Act was introduced with an object of curbing the practice of indiscriminate issuance of cheques, without making necessary arrangements. The offence under the Section cannot be equated with those under the ipc. If a person held guilty of the offence under Section 138 of the Act is let off by imposing a fine of paltry amount, it virtually amounts to putting a premium on their misdeeds. The offences under Chapter-XVII of the Act, are the best instances, where the discretion under sub-section (3) of Section 357, Cr. P. C. be exercised. The trial Court ought to have either imposed the sentence of imprisonment or ordered payment of compensation. This Court feels that the order of the trial Court does not conform to the letter and spirit of the provisions of the Negotiable Instruments Act and Cr. P. C. ( 6 ) THEREFORE, the order of the trial Court, insofar as it relates to sentence, is set aside and the matter is remanded to it for passing of fresh orders as to sentence, duly giving an opportunity to the respondent; The Criminal Revision Case is allowed accordingly. Revision allowed.