Karnataka High Court
Sri. Nanjesha @ Ashoka vs M. P. Harisha on 4 January, 2024
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CRL.RP No. 1132 of 2017
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION No.1132 OF 2017
BETWEEN:
SRI.NANJESHA@ASHOKA
S/O.ANNEGOWDA
AGED ABOUT 42 YEARS
R/AT NO. RAYAPURA VILLAGE
SALGAME HOBLI
HASSAN TALUK
HASSAN DISTRICT-571 233
...PETITIONER
(BY SRI.PRATHEEP K.C., ADVOCATE)
AND:
M.P.HARISHA
S/O.M.K.PUTTASWAMY, MAJOR
R/AT MATHIGHATTA VILLAGE
HALEBEEDU HOBLI
BELUR TALUK
HASSAN DISTRICT-581 233
...RESPONDENT
(BY SRI.PALLAVA R., ADVOCATE)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C, PRAYING TO
SET ASIDE THE JUDGMENT DATED 09.10.2017 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN IN CRL.
A.NO.14/2015 AND IN C.C.NO.257/2011 DATED: 17.01.2015
PASSED BY THE PRINCIPAL CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HASSAN AND ACQUIT THE
PETITIONER FOR THE OFFENCE P/U/S 138 OF NEGOTIABLE
INSTRUMENT ACT.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
29.11.2023, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CRL.RP No. 1132 of 2017
ORDER
Revision Petitioner/accused feeling aggrieved by the judgment of First Appellate Court on the file of II Addl. District and Sessions Judge, Hassan in Crl.A.No.14/2015, dated 09.10.2017, in confirming the judgment of Trial Court on the file of Prl.Civil Judge and JMFC, Hassan in C.C.No.257/2011, dated 17.01.2015 preferred this Revision Petition.
2. Parties to the Revision Petition are referred with their ranks as assigned in the Trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing both the sides and on perusal of Trial Court Records with judgment of both the Courts below, the following points arise for consideration:
1) Whether the impugned judgment under revision passed by the First Appellate Court in confirming the judgment of the Trial Court for the offence punishable under Section 138 of N.I.Act is perverse capricious and legally not sustainable?-3- CRL.RP No. 1132 of 2017
2) Whether any interference by this Court is required?
5. On careful perusal of oral and documentary evidence placed on record, it would go to show that complainant and accused are known to each other. Accused has borrowed money of Rs.90,000/- from complainant for clearing hand loan and domestic purpose on 05.01.2010 and accused has agreed to repay the said money within 1 month. On the day of taking hand loan accused issued post dated cheque bearing No.057192 dated 05.05.2010 Ex.P.1.Complainant presented the said cheque through his banker Canara Bank, Halebeedu branch on 03.05.2010 Ex.P.2. The said cheque was dishonoured as "Funds Insufficient" and the banker of complainant Canara Bank intimated the said fact under Ex.P.4 dated 06.05.2010. In turn the banker of complainant Canara Bank intimated the endorsement of State Bank of India by intimation dated 24.05.2010 EX.P.3. The complainant issued demand notice dated 28.05.2010 Ex.P.5 through RPAD, the demand notice issued through RPAD is duly served to the accused vide -4- CRL.RP No. 1132 of 2017 acknowledgement card Ex.P.6 and the postal receipt is produced Ex.P.7. The demand notice was also sent through under certificate of posting vide receipt Ex.P.8. If the above referred documents are perused and appreciated with the evidence of PW.1, then it would go to show that complainant has complied all the necessary legal requirements in terms of Section 138 (a) to (c) of Negotiable Instruments Act, 1881(herein after for brevity referred to as "N.I.Act"). The complaint is filed within one month from the date of accrual of cause of action in terms of Section 142(b) of N.I.Act. Therefore, statutory presumption in terms of Sections 118 and 139 of N.I.Act will have to be drawn.
6. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in APS Forex Services Pvt. Ltd. Vs. Shakti International Fashion Linkers and others reported in AIR 2020 SC 945, wherein it has been observed and held that once the issuance and signature on cheque is admitted, there is always a presumption in favour of complainant that there -5- CRL.RP No. 1132 of 2017 exist legally enforceable debt or liability. Plea by accused that cheque was given by view of security and same has been misused by complainant is not tenable.
7. It is also profitable to refer another judgment of Hon'ble Apex Court in P. Rasiya vs. Abdul Nazer and another reported in 2022 SCC OnLine SC 1131, wherein it has been observed and held that:-
" Once the initial burden is discharged by the complainant that the cheque was issued by the accused and signature of accused on the cheque is not disputed, then in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for discharge of any debt or other liability. The presumption under Section 139 of N.I. Act is statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the complainant/holder of the cheque, in that case it is for the accused to prove the contrary."
In view of the principles enunciated in the aforementioned two judgments of Hon'ble Apex Court, it is evident that when once issuance of cheque with signature of accused on the account maintained by him is admitted or proved -6- CRL.RP No. 1132 of 2017 then statutory presumption in terms of Section 118 and 139 of N.I. Act will have to be drawn. Now, it is up to the accused to place rebuttal evidence to displace the statutory presumption available in favour of the complainant.
8. In this context of the matter, it is useful to refer the judgment of Hon'ble Apex Court in Basalingappa Vs. Mudibasappa reported in 2019 Cr.R. page No. 639 (SC), wherein it has been observed and held that:
"Presumption under Section 139 is rebuttable presumption and onus is on accused to raise probable defence. Standard of proof for rebutting presumption is that of preponderance of probabilities. To rebut presumption, it is open for accused to rely on evidence laid by him or accused can also rely on materials submitted by complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from materials brought on record by parties, but also by reference to circumstances upon which they rely. It is not necessary for accused to come in witness box in support of his defence. Section 139 imposed an evidentiary burden and not a presumptive burden".-7- CRL.RP No. 1132 of 2017
9. The Hon'ble Apex Court in it's latest judgment in Rajesh Jain v/s Ajay Singh reported in 2023 SCC OnLine SC 1275, wherein it has been observed and held that, once issuance of cheque with signature of accused is either admitted or proved then, statutory presumption will have to be drawn in favour of the complainant.
In view of the principles enunciated in both the aforementioned judgment of Hon'ble Apex Court, it is evident that the accused to probabilise his defence can rely on his own evidence or also can rely on material submitted by complainant. It is not necessary for the accused to step into witness box to probabilise his defence.
10. The defence of accused is that cheque Ex.P.1 was given to maternal uncle of accused one Kumar and the same has been misused by the complainant for filing this false case. Accused in order to probabilise his defence apart from relying on the evidence produced by complainant, also relied on his own evidence as DW.1 and that of one witness DW.2, so also relied on the documents -8- CRL.RP No. 1132 of 2017 Ex.D.1 to Ex.D.6. The Trial Court has rejected the defence of accused and held that accused has failed to probabilise his defence. On recording such findings convicted the accused for the offences alleged against him. The said judgment of conviction and order of sentence was assailed by accused before the First Appellate Court. The First Appellate Court after re-appreciation of evidence on record dismissed the appeal and confirmed the judgment passed by Trial Court.
11. Learned counsel for the accused has vehemently argued that complainant was having no any balance of Rs.90,000/- in the Bank account maintained in the State Bank Of India, Hassan, the same is evident from Bank statement Ex.P.2. The cheque Ex.P.1 is dated 05.05.2010 and the accused was expected to maintain sufficient balance to honour the cheque on 05.05.2010. Whereas, complainant has presented the said cheque through his banker Canara Bank for collection on 03.05.2010 and such pre matured presentation of cheque by complainant, accused cannot be held liable for -9- CRL.RP No. 1132 of 2017 dishonour of cheque Ex.P.2 as "Funds Insufficient". The Courts below have not properly appreciated the defence of accused and the evidence of DWs.1 and 2 with the material evidence brought on record in the cross- examination of PW.1 and proceeded to convict the accused only on the basis of statutory presumption available in favour of complainant. The said approach and appreciation of evidence by both the Courts below without appreciating the defence evidence and finding recorded cannot be legally sustained.
12. Per contra, learned counsel for the complainant has argued that no doubt cheque Ex.P.1 is deposited with the banker of the complainant Canara Bank on 03.05.2010 that is prior to the date mentioned in the cheque Ex.P.1. However, the banker of complainant Canara Bank has processed the cheque only after the matured date i.e., 05.05.2010 shown in the cheque Ex.P.1. Accused has not chosen to examine the Bank Manager of SBI and Canara Bank to substantiate his contention that the cheque was presented on prematured date and it was received for
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CRL.RP No. 1132 of 2017collection before 05.05.2010 or on that day. The question of presenting the cheque Ex.P.1 for collection arises only when it was presented to the banker of accused i.e., SBI. If the cheque is presented by complainant with his banker in advance to the date shown in the Ex.P.1 dated 05.05.2010, it does not amounts to presentation of cheque to the banker of accused for collection. The second contention of learned counsel for the accused that accused has produced Ex.D.1 letter of Bank and account statement of accused from the period dated 01.12.2009 to 06.12.2009 that complainant was having no balance of Rs.90,000/- in the said period. PW.1 in his evidence has stated that one week prior to giving loan of Rs.90,000/- to accused withdrawn the money from Bank and paid. However, no further question was put as to when exactly the money was withdrawn. Therefore, without producing the Bank statement from 07.12.2009 to 04.01.2010 and without covering the period of one week time prior to advancing loan cannot be relied to substantiate the contention of learned counsel for accused. The Courts
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CRL.RP No. 1132 of 2017below have rightly appreciated the evidence on record and no any interference of this Court is warranted.
13. Accused in order to substantiate his aforementioned defences that he has issued the cheque to one Kumara who is the maternal uncle of accused and the said cheque has been misused by complainant for filing this false case relied on his own evidence as DW.1 and Somalinge Gowda as DW.2. Accused as DW.1 has deposed to the effect that there was no transaction between him and the complainant and he has not taken any hand loan of Rs.90,000/- on 05.01.2010 and never issued cheque Ex.P.1 to the complainant.
13(a). DW.1 further deposed to the effect that he has taken Rs.10,000/- loan from Kumara who is the maternal uncle of complainant and at the time of availing the said loan he has issued blank signed cheque. Accused has repaid the entire amount of Rs.10,000/- taken from Kumara. When accused has demanded to return his blank signed cheque he stated that the cheque was misplaced and on securing he will give it to him. In May 2010 he
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CRL.RP No. 1132 of 2017received demand notice from complainant. Thereafter, he went to Kumar, maternal uncle of complainant and asked him to return the blank signed cheque along with Somalinge Gowda. However, he has given evasive reply. Complainant by misusing the said cheque has filed this false case.
14. Accused in support of such oral evidence relied on the documents Ex.D.1 to Ex.D.6 and also examined Somalinge Gowda as his witness DW.2. However, he has not supported the case of accused and he has been declared as hostile witness. During the course of cross- examination he admits that in June 2010 accused asked him and Basavegowda for holding panchayath. Further, the said Basavegowda took complainant and DW.2 Somalinge Gowda to the maternal uncle of complainant. The witness did not support having held any panchayath. However, he admits to the suggestion that maternal uncle of complainant agreed to return the cheque. This witness has not been cross-examined by complainant.
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CRL.RP No. 1132 of 2017
15. Learned counsel for the accused has vehemently argued that when there is no cross- examination by complainant to the facts admitted during cross-examination after treating the witness hostile then the dependable portion of evidence of hostile witness has to be relied. In support of such contention reliance is placed on the judgment of Hon'ble Apex Court in Rajesh Yadav and Another Vs. State of Uttar Pradesh reported in (2022) 12 SCC 200, wherein, it has been observed and held that:
" The witness may depose in favour of a party in whose favour it is meant to be giving through his chief-examination, while later on change his view in favour of the opposite side. Similarly, there would be cases where a witness does not support the case of the party starting from chief-examination itself. This classification has to be borne in mind by the Court. With respect to the first category, the Court is not denuded of its power to make an appropriate assessment of the evidence rendered by such a witness. Even a chief-examination could be termed as evidence. Such evidence would become complete after the cross-examination. Once evidence is completed, the said testimony as a whole is meant for the court to assess and
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appreciate qua a fact. Therefore, not only the specific part in which a witness has turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief-examination was completed and there are circumstances indicating the reasons behind the subsequent statement, which could be deciphered by the court. It is well within the powers of the court to make an assessment, being a matter before it and come to the correct conclusion".
In the present case DW.2 Somalinge Gowda has categorically admitted that he do not know the transaction between complainant and accused. The aforementioned admissions of DW.2 in the cross-examination is only to the extent that maternal uncle of complainant Kumara has agreed to arrange giving of cheque to the accused. The said admission does not refer to any transaction between complainant and accused. Other than the self interested version of DW.1 that for the loan of Rs.10,000/- taken by him from the maternal uncle of complainant, he has issued cheque to him Ex.P.1 and the occasion for complainant to come in possession of said cheque has not been substantiated by the evidence on record. The
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CRL.RP No. 1132 of 2017aforementioned admissions in the cross-examination of DW.2 without making any proper foundation and evidence to substantiate the said fact cannot take away the case of complainant.
16. Learned counsel for accused on the basis of Ex.P.2 under which the cheque was presented to the Canara Bank dated 03.05.2010 has vehemently argued that cheque Ex.P.1 prematurely presented and the accused is only answerable to maintain sufficient balance in his account as on the date of issuance of cheque dated 05.05.2010. Therefore, in view of the pre matured presentation of the cheque on 03.05.2010 Ex.P.2 through banker of complainant, there was no legally enforceable debt as on 03.05.2010. Therefore, the statutory presumption drawn by both the Courts below in terms of Section 118 and 139 of N.I.Act cannot be legally sustained. Learned counsel for appellant in support of such contention relied on the judgment of Hon'ble Apex Court in A.R.Dahiya Vs. Securities And Exchange Board of India. Wherein, it has been held that in terms
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CRL.RP No. 1132 of 2017of Section 6 of N.I.Act post dated cheque held by the complainant amounts to promise to pay and that promise would be fulfilled on the date mentioned on the cheque, wherein it has been observed and held at para 17 as under:
"The next contention that was raised by the counsel for the appellant was that as the cheques presented had been dishonoured on presentation, the said transaction did not culminate in an acquisition. It has already been held beyond doubt that the post-dated cheques issued by the appellant in favour of HSIDC were in consideration of the buy-back of the shares held by HSIDC in the target Company. The appellant had submitted that the cheques were post-dated because he was suffering from a liquidity crunch. In our view, the post-dated cheques amounted to a promise to pay and that promise would be fulfilled on the date mentioned on the cheque. Thus, this promise to pay amounted to a sale of shares/equity. The subsequent dishonouring of the post-dated cheque would have no bearing on the case".
In the said case before Hon'ble Apex Court, the post dated cheque was admittedly presented prior to the date mentioned on the cheque to the bank on which it was
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CRL.RP No. 1132 of 2017drawn which was supposed to pay the amount covered under the cheque. In the present case as per the bank endorsement dated 06.05.2010 Ex.P.4, the cheque was presented for collection on 06.05.2010 as per the seal which could be found on the cheque Ex.P.1 as it was received for payment through clearing house, Hassan.
17. Indisputably, the cheque Ex.P.1 is dated 05.05.2010. Complainant presented/deposited the said cheque through his banker Canara Bank vide challan of Canara Bank dated 03.05.2010. The seal found on cheque Ex.P.1 would go to show that the cheque was received for payment through clearing house on 06.05.2010 and the same is admittedly presented after the date shown in the cheque dated 05.05.2010. Complainant has issued demand notice Ex.P.5 through RPAD and the same is duly served vide acknowledgement card Ex.P.6. The demand notice was sent through UCP Ex.P.8, the receipt of demand notice by accused is not disputed. However, in spite of due service of demand notice accused has not replied to the same by making proper foundation on the first available opportunity to put forth the defence of accused. Accused
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CRL.RP No. 1132 of 2017has also not made any written communication after his appearance in this case, before seeking permission to cross-examine PW.1 on the defences put forth by the accused during the trial.
18. The learned counsel for accused relied on the Co-ordinate Bench judgment of this Court in Smt.Pavithra w/o Late Somashekar Vs. Smt.Sheela V w/o Chikkanna in Criminal Appeal No.439/2018(A) c/w Criminal Appeal No.511/2019(A) dated 09.10.2023. In the said case accused has replied to the demand notice issued by the complainant and put forth defence as the cheque was issued for security for chit transaction. The defence put forth by the accused was found to be insufficient. Therefore, acquittal order passed by the First Appellate Court came to be confirmed. In the present case the accused has not replied to the demand notice and not made any foundation to prove his defence. It is only for the first time during the evidence of DW.1 defence was taken that cheque Ex.P.1 was given to maternal uncle of complainant i.e., Kumara. However, in the cross- examination of PW.1 it is suggested that the cheque was
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CRL.RP No. 1132 of 2017issued to relative of complainant and the same is denied by the complainant. The accused for the first time in his evidence introduced that he has given cheque to the maternal uncle of complainant Kumara and the complainant has misused the said cheque. Accused has not offered any explanation as to the occasion or transaction between maternal uncle and complainant, so as to reasonably believe that complainant has an occasion to come in possession of the cheque Ex.P.1. Therefore, the aforementioned circumstances of the present case, the judgment Co-ordinate Bench relied by the learned counsel for accused has no application to the facts of the present case.
19. Whether the presentation of cheque for collection through banker of complainant Canara Bank on 03.05.2010 Ex.P.2 amounts to presentation of the cheque for collection to the banker of accused and it amounts to a pre matured presentation of cheque or an endorsement of the State Bank of India at Ex.P.4, on 06.05.2010 with the seal of Canara Bank found on Ex.P.1 that the cheque was received for payment through clearing house, Hassan on
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CRL.RP No. 1132 of 201706.05.2010 is the date of presentation has been called in question in the present case.
20. Learned counsel for accused has argued that date of presentation of the cheque by complainant through his banker dated 03.05.2010 is pre matured presentation of cheque. Whereas, learned counsel for complainant has argued that complainant has deposited the cheque Ex.P.1 through his banker Canara bank on 03.05.2010 vide bank challan Ex.P.2 and it is not a presentation of cheque for collection from the banker of accused State Bank of India Hassan branch. Learned counsel for accused and complainant both have addressed some interesting arguments on the interpretation of term "Deposit" and "Presentation". According to learned counsel for complainant, it is not the presentation of cheque for collection to the banker of accused and in fact it is deposit of the cheque through challan Ex.P.2 on 03.05.2010. The banker of the complainant has processed the cheque only after maturity of the cheque dated 05.05.2010. In view of the endorsement of the bank found on Ex.P.1, cheque was
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CRL.RP No. 1132 of 2017presented to the banker of accused for collection on 06.05.2010. Whereas, counsel for accused has argued that it amounts to presentation of the cheque on 03.05.2010 and there is no provision under the N.I.Act for the deposit of the cheque.
21. Learned counsel for the Revision Petitioner adverting to Section 6, 64 and 66 of N.I.Act has submitted that the presentation of cheque through the banker of complainant on 03.05.2010 vide Bank challan Ex.P.2 amounts to pre matured presentation of the cheque and as on the said date there was no any legally enforceable debt which accused has promised to pay the same to complainant. On the other hand the learned counsel for complainant has argued that, in fact it is depositing of the cheque Ex.P.1 through banker of complainant on 03.05.2010. The banker of complainant has processed the cheque Ex.P.1 only on 06.05.2010 which is after the due date shown in the cheque Ex.P.1 dated 05.05.2010. In this context of the matter it is profitable to refer Section 6 of N.I.Act for ready reference which reads as under:
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"[6. "Cheque".-A "cheque" is a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand and it includes the electronic image of a truncated cheque and a cheque in the electronic form. Explanation I.-For the purposes of this section, the expressions-
[(a) "a cheque in the electronic form" means a cheque drawn in electronic form by using any computer resource and signed in a secure system with digital signature (with or without biometrics signature) and asymmetric crypto system or with electronic signature, as the case may be;]
(b) "a truncated cheque" means a cheque which is truncated during the course of a clearing cycle, either by the clearing house or by the bank whether paying or receiving payment, immediately on generation of an electronic image for transmission, substituting the further physical movement of the cheque in writing.
Explanation II.-For the purposes of this section, the expression "clearing house" means the clearing house managed by the Reserve Bank of India or a clearing house recognized as such by the Reserve Bank of India.] Explanation III.-For the purposes of this section, the expressions "asymmetric crypto system", "computer resource", "digital signature", "electronic form" and "electronic signature" shall have the same meanings respectively assigned to them in
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CRL.RP No. 1132 of 2017the Information Technology Act, 2000 (21 of 2000).]"
The presentation of bill of exchange or a cheque is covered under cheque chapter V of the N.I.Act and relevant provision for considering the dispute involved in the present case is Section 64 and 66 of N.I.Act, the same is reproduced for ready reference:
"64. Presentment for payment.-[(1)] Promissory notes, bills of exchange and cheques must be presented for payment to the maker, acceptor or drawee thereof respectively, by or on behalf of the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder.
[Where authorized by agreement or usage, a presentment through the post office by means of a registered letter is sufficient.] Exception.-Where a promissory note is payable on demand and is not payable at a specified place, no presentment is necessary in order to charge the maker thereof.
[(2) Notwithstanding anything contained in section 6, where an electronic image of a truncated cheque is presented for payment, the drawee bank is entitled to demand any further information
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regarding the truncated cheque from the bank holding the truncated cheque in case of any reasonable suspicion about the genuineness of the apparent tenor of instrument, and if the suspicion is that of any fraud, forgery, tampering or destruction of the instrument, it is entitled to further demand the presentment of the truncated cheque itself for verification:
Provided that the truncated cheque so demanded by the drawee bank shall be retained by it, if the payment is made accordingly.]"
66. Presentment for payment of instrument payable after date or sight.- A promissory note or bill of exchange, made payable at a specified period after date or sight thereof, must be presented for payment at maturity."
On plain reading of the aforementioned Section 6, 64 and 66 of N.I.Act, it would go to show that the cheque has to be drawn in terms of Section 6 of N.I.Act. In terms of Section 64 of N.I.Act, cheque must be presented for payment to the maker, acceptor or drawee thereof respectively by or on behalf of the holder as hereinafter provided. In default of such presentment, the other parties thereto are not liable thereon to such holder. In terms of Section 66 of N.I.Act is a promissory note or bill
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CRL.RP No. 1132 of 2017of exchange, made payable at a specified period after date or sight thereof, must be presented for payment at maturity. It means that the cheque has to be presented for collection for payment at maturity. The date on which it was actually presented to the banker of accused is a material date which can be said as date of presentation of the cheque.
22. In the present case cheque Ex.P.1 was drawn on 05.05.2010 and the same was presented for collection through banker of complainant Canara Bank on 03.05.2010 vide Ex.P.2. Whether it is a presentation or deposit of a cheque with the banker of complainant on 03.05.2010 makes no difference and it does not amount to presentation of cheque to State Bank of India. Wherein, accused has maintained an account to honour the cheque. In terms of Section 64 of N.I.Act presentment is to be made to the bank on which cheque Ex.P.1 was drawn who promises the holder in due course to pay the money covered under cheque. In terms of Section 66 of N.I.Act cheque must be presented for payment at maturity. The conjoint reading of Section 64 and 66 of N.I.Act would
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CRL.RP No. 1132 of 2017manifestly makes it clear that cheque must be presented for payment at maturity by the person who is holder in due course. The banker of the complainant i.e., Canara Bank has processed the cheque only after matured date on 05.05.2010 as shown in Ex.P.1. In view of the seal appearing on Ex.P.1 of the banker of complainant, it would go to show that the banker of complainant Canara Bank has processed the cheque and the same has been received for payment through clearing house, Hassan. The said undisputed endorsement would go to show that the cheque Ex.P.1 was presented for collection from State Bank of India where the accused has maintained the account and the said cheque has been dishonoured for want of sufficient fund in the account of accused. The presentation of the cheque is after the maturity date i.e., on 05.05.2010 as could be found from the seal appearing on Ex.P.1 that banker of complainant has presented the said cheque to the State Bank of India for payment on 06.05.2010. Therefore, under these circumstances the contention of learned counsel for accused that cheque was pre maturely presented by complainant on 03.05.2010 and
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CRL.RP No. 1132 of 2017there was no legally enforceable debt as on the said date cannot be legally sustained.
23. When once issuance of cheque with the signature of accused on the account maintained by him is either admitted or proved then statutory presumption in terms of Section 118 and 139 of N.I.Act will have to be drawn. If the accused failed to probabilise his defence or the defence raised by the accused cannot be legally sustained then in that event, the statutory presumption in terms of Section 118 and 139 of N.I.Act will continue to operate in favour of complainant.
24. The Courts below have rightly appreciated the material evidence placed on record and findings recorded in holding the accused guilty for the offence punishable under Section 138 of N.I.Act were based on the material evidence on record. Therefore, the said findings recorded by both the Courts below does not call for any interference by this Court.
25. Now coming to the question of imposition of sentence is concerned. The Trial Court has sentenced the accused to pay a fine of Rs.1,10,000/- and in default to
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CRL.RP No. 1132 of 2017undergo simple imprisonment for 1 year. Out of the fine amount Rs.1,05,000/- was ordered to be paid to the complainant as compensation and remaining Rs.5,000/- is ordered to be defrayed as prosecution expenses. Looking to the facts and circumstances of the case, the imposition of sentence as ordered by the Trial Court which is confirmed by the First Appellate Court also does not warrant any interference by this Court. Consequently, proceed to pass the following:
ORDER Revision petition filed by the Revision Petitioner is hereby dismissed as devoid of merits.
Registry to send back the records to Trial Court with a copy of this order.
SD/-
JUDGE GSR:List No.: 1 Sl No.: 5