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2014 DIGILAW 263 (KAR)

G. Kamala v. Uday G. Shetty

2014-02-28

P.D.WAINGANKAR

body2014
ORDER 1. This revision petition under Section 397 read with Section 401 of Criminal Procedure Code, 1973 is against an order of conviction of the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 by the XIII Additional Chief Metropolitan Magistrate, Bangalore, in C.C. No. 327 of 2008 which has been confirmed by the Presiding Officer of the Fast Track Court-XI, Bangalore City in Criminal Appeal No. 217 of 2011 by an order dated 26-8-2011. The revision petitioner was the accused and the respondent was the complainant before the Magistrate. Towards the discharge of her liability, the accused issued a cheque for Rs. 25,00,000/- in favour of the complainant. On presentation of the cheque for encashment, it came to be dishonoured for the reasons insufficient funds. The accused was informed of the factum of dishonour of the cheque and called upon to pay the cheque amount within the stipulated period of time. Though the notice was served on the accused, she neither paid the cheque amount nor gave reply to the notice. As such, a complaint came to be registered for the offence punishable under Section 138 of the Negotiable Instruments Act. The accused appeared and pleaded not guilty. 2. In order to prove the case, the complainant examined himself as P.W. 1, apart from examining two other witnesses-P.Ws. 2 and 3 and got marked seven documents which are at Exs. P. 1 to P. 7. The accused has not led defence evidence. The learned Magistrate upon hearing both the learned Counsels appearing for the parties and on appreciation of the evidence, by an order dated 17-2-2011 convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced her to pay fine of Rs. 25,10,000/- apart from ordering for the payment of compensation amount of Rs. 25,00,000/- out of fine amount recovered. The Criminal Appeal No. 217 of 2011 filed by the accused against her conviction and sentence before the Presiding Officer, F.T.C.-XI came to be dismissed by an order dated 26-8-2011 while confirming the judgment of conviction and sentence. 3. Questioning the legality and correctness of the orders passed by both the Courts below, this revision petition is preferred. 4. I have heard both the learned Counsels for the revision petitioner and the respondent. Perused the records. 5. 3. Questioning the legality and correctness of the orders passed by both the Courts below, this revision petition is preferred. 4. I have heard both the learned Counsels for the revision petitioner and the respondent. Perused the records. 5. It is seen from the records that the issuance of the cheque for Rs. 25,00,000/- by the accused in favour of the complainant towards discharge of liability is not in dispute. Even otherwise whenever the cheque is issued, the presumption has to be drawn under Section 139 of the Negotiable Instruments Act that it is issued for the discharge of liability and the existence of the debt on liability. On presentation of the cheque, it came to be dishonoured for the reasons insufficient funds. Thereafter, after complying mandatory requirements, a complaint came to be filed against the accused person. Virtually, there is no defence for the accused and rightly for the said reasons, she has not led defence evidence. The evidence of P.Ws. 1, 2 and 3 supported by Exs. P. 1 to P. 7 is sufficient to hold that the accused committed an offence under Section 138 of Negotiable Instruments Act. As such, no fault can be found with the orders passed by the Magistrate and confirmed by the Sessions Judge. Only circumstance that has to be taken into consideration by this Court is that during the pendency of this petition, the accused has paid sum of Rs. 2,00,000/-. Learned Counsel for the respondent/complainant has no objection to take into account the amount paid by the accused while imposing punishment. As such, I proceed to pass the following order: "The revision petition is dismissed. However, at the time of payment of compensation of Rs. 25,00,000/- to the complainant, out of the fine amount of Rs. 25,10,000/- an amount of Rs. 2,00,000/- already paid by the petitioner/accused shall be given deductions and thereby, the complainant shall be paid an amount of Rs. 23,00,000/- only." Petition Dismissed.