Karnataka High Court
Satish Shetty vs Victor D'Souza S/O Jacob D'Souza on 25 July, 2012
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25TH DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
CRIMINAL REVISION PETITION NO.1038/2008
BETWEEN:
Satish Shetty,
Age 36 years,
S/o. Sridhara Shetty,
Mithakodi House,
R/at Alake Mooduperar,
Mangalore. ... PETITIONER
(By Sri S. Lakshminarayana for Sri P. Karunakar, Adv.)
AND:
Victor D'Souza, age 50 years,
S/o. Jacob D'Souza,
R/at Suralpady House,
Kinnikambla Post,
Mangalore.
Represented by his GPA Holder
Smt. Pascin D'Souza
W/o. Victor D'Souza. ... RESPONDENT
(By Sri Rahul Rai K. for Sri K.M. Nataraj, Adv.)
This Crl.R.P. is filed under Section 397 r/w 401
Cr.P.C. praying to set aside the order dated 8.8.2008
passed by the II Addl. Sessions Judge, Mangalore in
Crl.A.No.313/2006, confirming the judgment dated
2
30.9.2006 in C.C.No.9403/2001 passed by the I Addl. Civil
Judge (Jr.Dn.) & JMFC., Mangalore.
This Crl.R.P. coming on for hearing this day, the
Court made the following:
ORDER
Petitioner who has been convicted and sentenced for an offence under S.138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'), has filed this criminal revision petition.
2. Learned advocate appearing for the petitioner contended that the respondent has not made out the ingredients of S.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.
3. 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 3 having returned the cheque and there being presumption under S.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.
4. Record would indicate that Ex.P1- cheque was issued by the petitioner. The evidence would indicate that the cheque has been issued for discharge of the liability. Ex.P1 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.P2. Demand notice vide Ex.P4 was issued immediately. There being no payment, the complaint was filed within the period of limitation.
5. Learned Magistrate and the learned Sessions Judge have concurrently found that Ex.P1 belongs to the petitioner. Though accused denied his signature on Ex.P1, the transaction having been admitted, the signature when 4 compared with the admitted signatures of the accused, there cannot be any dispute that Ex.P1 contains the signature of the accused. Further, while deposing as DW-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.P1. No such record has been produced. In the circumstances, the Courts below are justified in holding that the presumption under S.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 S.I. for two months and also pay compensation of `1,25,000/-, in default to undergo further S.I. for 6 months. The appellate Court has not examined the matter relating to sentence in the correct perspective. 5
6. 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 S.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 `1,00,000/- within a period of two months from today. If the fine amount is deposited, `96,000/- therefrom be paid as compensation to the complainant and the balance sum of `4,000/- forfeited to the State. In case of default, petitioner shall undergo simple imprisonment for a period of two months.
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.
Sd/-
JUDGE sac*