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2017 DIGILAW 204 (KAR)

Vasanth Kumar S/o Late Raghava v. Sandya Nayak D/o Srinivas Nayak

2017-02-01

RAVI MALIMATH

body2017
ORDER : The case of the complainant is that he lent a loan of Rs.1,83,000/- to the accused for business needs. The accused had undertaken to repay the same with 22% interest per annum. Interest was being paid for sometime. Thereafter, the accused failed to return the principal amount, as well as the interest payable. Hence, he issued a cheque bearing No.091906, dated 01.01.2007, drawn on Dena Bank, Kankanady Branch, Mangaluru, towards discharge of the debt. When the complainant presented the said cheque for encashment. The same was returned with an intimation that the funds was insufficient. 2. A legal notice was issued to the accused. There was no reply. Hence, a complaint was filed alleging offence under Section 138 of the Negotiable Instruments Act. Sworn statement of the complainant was recorded. The accused appeared before the Court and pleaded not guilty. Evidence was let in. 3. On trial, the accused was convicted and was directed to pay a sum of Rs.2,25,000/- as fine and out of the said sum, a sum of Rs.2,22,000/- was ordered to be paid as compensation to the complainant and in default the accused had to undergo simple imprisonment for five months and rigorous imprisonment for three months. 4. Aggrieved by the same, an appeal was filed before the Second Additional District and Sessions Judge, D.K., Mangaluru. The appeal was dismissed. Hence, the present revision petition. 5. The learned counsel for the petitioner contends that both the courts below committed error in convicting the accused. That there is no material in order to accept the case of the complainant. That there is no legally dischargeable debt. Hence, he pleads that the revision petition be dismissed. 6. The learned counsel for the respondent defends the same. 7. On hearing learned counsels, I am of the considered view that there is no merit in this petition. 8. The Power of Attorney Holder of the complainant was examined before the court below as PW1 and produced the cheque issued by the accused dated 01.01.2007, at Exhibit-P1. Notice issued to the accused was produced at Exhibit-P4 and the postal acknowledgement at ExhibitP3. There was no reply to the legal notice. In the examination of PW1, he has narrated the manner in which the cheque was issued and the subsequent dishonor. 9. Notice issued to the accused was produced at Exhibit-P4 and the postal acknowledgement at ExhibitP3. There was no reply to the legal notice. In the examination of PW1, he has narrated the manner in which the cheque was issued and the subsequent dishonor. 9. PW1 has categorically stated that the cheque was issued in furtherance of the repayment of the loan of Rs.1,83,000/-. Therefore, it was a legally dischargeable debt. No evidence was ledin by the accused. No material was produced by him to rebut the same. The only defence of the accused is that in discharge of loan, he has given a bus permit to the complainant. The trial court was of the view that the bus permit is not in the form of specific security, which can satisfy the requirements of Law. This being the only defence of the accused, the same was rightly rejected by the trial court. 10. On considering the material and evidence on record, I find no good ground to entertain the revision petition. Both the courts below have rightly considered the material and evidence on record. The complainant has shown that a cheque was issued. That a cheque is towards a legally enforceable debt. There is no rebuttal evidence ledin by the accused. The concurrent findings recorded by both the courts below are in accordance with law, facts and circumstances. Hence, the petition being devoid of merit is dismissed.