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2008 DIGILAW 136 (KAR)

Chandrammal v. R. Padmavathy

2008-02-25

R.B.NAIK

body2008
ORDER R.B. Naik, J: This revision petition is against the Judgment of conviction and sentence passed by the XIII Additional Chief Metropolitan Magistrate, Bangalore dated 06.01.2001 in C.C.No. 14022/1999 convicting the 2nd accused-petitioner No.2 herein for an offence punishable under Section 138 of the Negotiable Instruments Act and sentencing her to undergo simple imprisonment for one month and to pay fine of Rs.1,50,000/-, in default of payment of fine, to undergo simple imprisonment for one month, which order of conviction and sentence is confirmed by the Fast Track (Sessions) Judge-III Bangalore City by the Judgment dated 04.04.2005 in Crl.A.No. 102/2001. 2. The brief facts of the case are that the accused-petitioner herein borrowed a stun of Rs.1,21,280/- from the complaint and towards repayment of the same, she issued cheque as at Ex.P.1. On presentation of the cheque for realization, It was returned with banker's endorsement "Insufficient funds". After receipt of bankers endorsement, legal notice was sent, as the petitioner failed to make payment despite service of notice, a complaint came to be filed under Section 200 Cr.P.C., for the offence punishable under Section 138 of the Negotiable Instruments Act. 3. In support of her case, the complainant examined herself as PW.1 and got marked Ex.P.1 to 9. On behalf of the accused-petitioner herein, apart from examining herself as DW.1, she got examined two more witnesses as DWs. 2 and 3 and got marked Ex.D.1. The Courts below, on appreciation of the oral and documentary evidence In a proper perspective have arrived at a conclusion that the accused-petitioner herein is guilty of having committed the offence punishable under Section 138 of N.I. Act and sentenced him as stated above. 4. Issuance of cheque as at Ex.P.1, the Bank endorsement as at Ex.P.2, debt notice as at Ex.P.3, copy of the legal notice as at Ex. P.4, postal receipts as at Exs. P.5 and P.8, postal acknowledgments as at Exs.P.6 and P9, issuance of corrigendum as at Ex.P,7 are not in dispute and the accused-petitioner admits the same. But however, the case of the petitioner is that complainant who was earning only a sum of Rs.1,500/- per month as a teacher did not have sufficient means to advance an amount of Rs.1,21,280/- and the claim of complainant that she lent money is false, however, it is noticed, in the evidence of PW. But however, the case of the petitioner is that complainant who was earning only a sum of Rs.1,500/- per month as a teacher did not have sufficient means to advance an amount of Rs.1,21,280/- and the claim of complainant that she lent money is false, however, it is noticed, in the evidence of PW. 1 that in addition to working as a teacher, she used to take tuition classes and she had sufficient means to mobilize the fund and lend the amount as requested by the petitioner-accused. The petitioner accused also contends that he had issued cheque in question to the mother of complainant in respect of a chit transaction, but however, no documentary evidence is produced in proof of said fact and as such, the oral testimony of the petitioner-accused in the said regard is unreliable. 5. Both the Courts below, on appreciation of the material on record in proper perspective have arrived at a conclusion that petitioner Is guilty of having committed offence punishable under Section 138 of the N.I. Act I do not find any error in the judgments passed by the Courts below and there is absolutely no reason to interfere with the order of conviction passed by the Courts below. 6. But however, as regards the sentence, it is argued by the learned Counsel for the petitioner that the transaction is of the year 1998, petitioner is an old lady aged more than 70 years, she has no sufficient source of income to generate the funds and make payment in lump sum, it is also submitted that the petitioner, she is suffering from old age ailments, if she were to be put behind bars, petitioner and her family members will be put to untold misery and hardship and therefore, lenient view may be taken while imposing sentence. 7. Having regard to the hardship pleaded by the petitioner and looking to the totality of the facts and circumstances, this Court is of the considered view that a lenient view deserves to be taken regarding Imposition of sentence. While confirming the Judgment of conviction passed by the Court below, the sentence to, be imposed upon the petitioner Is liable to be modified. Hence, I pass the following: ORDER The revision petition is partly allowed. While confirming the Judgment of conviction passed by the Court below, the sentence to, be imposed upon the petitioner Is liable to be modified. Hence, I pass the following: ORDER The revision petition is partly allowed. The Judgment of conviction passed by the Courts below convicting the petitioner herein for an offence punishable under Section 138 of the Negotiable Instruments Act is confirmed. The sentence of one-month simple imprisonment imposed upon the petitioner herein is set aside. In modification of the sentence imposed by the Courts below, the petitioner is sentenced to pay fine of Rs.1,00,000/- (Rupees one lakh only). In default of payment of fine, petitioner herein shall undergo simple imprisonment for a period of one year. The fine amount, if recovered, the same shall be aid to the complainant, as provided under Section 357 of Cr.P.C. Four months time is granted to the petitioner to pay fine amount it is made clear that amount if any already deposited, the same shall be given due deduction.