1. The petitioner has challenged his conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘NI Act’ for short) on a trial held by the Metropolitan Magistrate, Bangalore, confirmed in an appeal by the Sessions Court.

2. The facts reveal that the petitioner had to pay a sum of Rs.3,00,000/- to the respondent towards the sale consideration for having purchased the immovable property on 10.09.2007 and the cheque dated 15.12.2007 was issued to the respondent towards the payment and when it was presented for encashment, it returned with an endorsement “insufficient funds”. Thereafter, the respondent issued notice. Thought there was reply, the demand was not complied and therefore, the respondent approached the Trial Court with a complaint against the petitioner for the offence under Section 138 of the NI Act.

In the trial, the complainant was examined as PW1 and in her evidence, Exs.P1 to P11 were marked. The statement of petitioner was recorded under Section 313 Cr.P.C. He was examined as DW1 and in his evidence, Exs. D1 to D3 were marked. The Trial Court heard the counsel and on appreciation of the evidence on record, convicted the petitioner for the offence under Section 138 of the NI Act and ordered him to pay a fine of Rs.3,40,000/- in default to undergo imprisonment for one year. The order was challenged in an appeal and the Appellate Court dismissed the appeal confirming the conviction and sentence. Aggrieved by the concurrent findings of the Courts below, the present revision petition is filed.

3. Heard the learned Counsel for petitioner. Learned Counsel for the respondent though served is absent.

4. The point that arises for my consideration is:

“Whether the petitioner has made out any grounds to warrant interference in his conviction and sentence ordered by the Trial Court and confirmed in an appeal for the offence under Section 138 of NI Act?”

5. Learned Counsel for the petitioner submits that there was no liability to make the payment of Rs. 3,00,000/- to the respondent as there was an understanding between the parties that the payment was to be made only after the disposal of suit in OS No.26941/2007. He submits that thought the cheque was issued towards payment of Rs.3,00,000/- towards sale consideration under the deed dated 10.09.2007, the respondent had agreed that the amount is payable only after disposal of the suit and having given such an assurance, misused the cheque issued and presented the same. He submits that there is no criminal intent on the part of petitioner and in the absence of such an intent or mensrea, the conviction cannot be granted for the offence under Section 138 of NI Act. On these grounds, he has sought for setting aside the conviction and sentence ordered.

6. Perusal of the material placed on record reveals that there is no dispute by the petitioner having issued the cheque for Rs. 3,00,000/- dated 15.12.2007. The cheque has been produced at Ex.P2. The endorsement is produced at Ex.P3 and it reveals that the cheque was returned for insufficient funds in the account. The respondent had issued the notice at Ex.P4 and the reply to this notice has been produced at Ex.P8. The sale deed dated 10.09.2007 has been produced by the respondent at Ex.P11. Under this sale deed, the petitioner had to pay a total sum of Rs.16,00,000/- to the respondent for purchase of property mentioned in the sale deed Ex.P11. Rs.10.00.000/- was given to the respondent by a order dated 29.08.2007. The sum of Rs.1,00,000/- was given in cash and two cheques were issued by the petitioner, one for a sum of Rs. 2,00,000/- dated 30.09.2007 and it admitted by the respondent that the petitioner paid the cash of Rs.2,00,000/- and the cheque for the said sum was taken back.

7. The cheque in dispute was dated 15.12.2007 for a sum of Rs.3,00,000/- and this was issued by the petitioner under the sale deed Ex.P11. The petitioner also agreed that in case if th