Research › Search › Judgment

Karnataka High Court · body

2012 DIGILAW 589 (KAR)

Satish Shetty v. Victor DSouza

2012-07-25

A.N.VENUGOPALA GOWDA

body2012
ORDER A.N. Venugopala Gowda , J.—Petitioner who has been convicted and sentenced for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), has filed this criminal revision petition. Learned Advocate appearing for the petitioner contended that the respondent has not made out the ingredients of Section 138 of the Act and the conviction and sentence of the petitioner by learned Magistrate is wholly erroneous and that the Appellate Court has not considered the matter in correct perspective and hence, interference in the matter is called for. 2. On the other hand, learned Advocate appearing for the respondent submitted that there is correct appreciation of the materials on record and that the issuance of cheque being not in dispute and the same having been issued in discharge of the debt due, the bank having returned the cheque and there being presumption under Section 139 of the Act, in the absence of any probable defence, the Courts below are justified in finding the petitioner-accused guilty and as a result, passing order of conviction and appropriate sentence. Learned Counsel submitted that there being concurrent finding of fact, no interference in the matter is called for. 3. Record would indicate that Ex. P. 1-cheque was issued by the petitioner. The evidence would indicate that the cheque has been issued for discharge of the liability. Ex. P. 1 having been presented within the period of 6 months from the date on which it was drawn, was returned by the bank unpaid, as is evident from Ex. P. 2. Demand notice vide Ex. P. 4 was issued immediately. There being no payment, the complaint was filed within the period of limitation. 4. Learned Magistrate and the learned Sessions Judge have concurrently found that Ex. P. 1 belongs to the petitioner. Though accused denied his signature on Ex. P. 1, the transaction having been admitted, the signature when compared with the admitted signatures of the accused, there cannot be any dispute that Ex. P. 1 contains the signature of the accused. Further, while deposing as D.W. 1, accused has stated that he discharged the liability. If that be so, he ought to have produced material with regard to the payment of the amount shown in Ex. P. 1. No such record has been produced. P. 1 contains the signature of the accused. Further, while deposing as D.W. 1, accused has stated that he discharged the liability. If that be so, he ought to have produced material with regard to the payment of the amount shown in Ex. P. 1. No such record has been produced. In the circumstances, the Courts below are justified in holding that the presumption under Section 139 of the Act is attracted. The petitioner-accused has not produced any material by which it can be said that he has rebutted the presumption. In the circumstances, the finding of guilt of the accused by the Courts below is neither perverse nor illegal. The judgment of conviction has rightly been passed and no interference in that regard is called for. However, the learned Magistrate is not justified in directing the petitioner to undergo simple imprisonment for two months and also pay compensation of Rs. 1,25,000/-, in default to undergo further simple imprisonment for 6 months. The Appellate Court has not examined the matter relating to sentence in the correct perspective. Keeping in view the nature of offence committed, it would meet ends of justice, if the order relating to sentence is modified. The petitioner who has been found guilty and convicted under Section 138 of the Act, while setting aside the order of sentence passed on him by the learned Magistrate and affirmed by the Appellate Judge, is sentenced to pay fine of Rs. 1,00,000/- within a period of two months from today. If the fine amount is deposited, Rs. 96,000/- therefrom be paid as compensation to the complainant and the balance sum of Rs. 4,000/- forfeited to the State. In case of default, petitioner shall undergo simple imprisonment for a period of two months. 5. The fine amount if not deposited within two months from today, bail and surety bonds of the petitioner stand cancelled and the petitioner shall surrender before the learned Magistrate to serve the custodial sentence.