Point of law : NI Act – Dishonour of Cheque - Loss of cheque or cheque book while traveling in the bus and in the absence of explanation regarding the same, offence under Section 138 of the Negotiable Instruments Act is complete.

ORDER :

This Criminal Revision Petition is filed by the petitioner under Section 397 read with Section 401 of Cr.P.C. aggrieved by the judgment dated 25.03.2017 in Crl.A.No.18/2016 passed by the V Additional District and Sessions Judge, Mandya, partially modifying the judgment dated 11.02.2016 passed by the Principal Civil Judge and JMFC, Mandya, in C.C.No.973/2009.

2. Heard learned counsel for petitioner through VC and learned counsel for respondent who appeared before court.

3. In order to avoid confusion and overlapping, parties are addressed in accordance with their ranks and status before the trial Court.

4. The substance of the complaint is extracted from the certified copy of the Judgment of the trial Court which reads as under:

"Accused was working as a Post Master in Post office, Mandya and he is known to the complainant, since from the date when her husband was alive. In order to meet the marriage expenses of his daughter, accused has approached this complainant seeking loan of Rs.1,50,000/-. Accordingly, during the 2nd week of June 2008, complainant lent Rs.1,50,000/-to the accused, to be paid at the interest of Rs.1.5% p.m. and in turn the accused has promised to repay the loan within 5-6 months. Later on, accused failed to fulfill his promise and when the complainant demanded him for money, he did not turned up, but he has issued a cheque for Rs.1,50,000/-on 24/12/2008 bearing No.849484, drawn on Indian Bank, Mandya branch. As per the request of the accused, complainant has presented the cheque after a week, but it came to be dishonoured as insufficient funds through Syndicate Bank, Mandya Branch. When this was communicated to the accused, he did not responded and hence, complainant issued a legal notice on 16/01/2009, but no payment was made within stipulated time. Rather, accused has issued reply notice stating that, the said cheque was lost by him and the same was misused by this complainant. Accused failed to repay the loan amount within 15 days from the date of service of notice. Thereby, accused has committed an offence punishable under Section 138 of N.I. Act. Hence, complainant has filed this case against the accused."

5. After receipt of summons the accused appeared through his counsel.

6. The learned trial Judge was accommodated with oral and documentary evidence as under:

PW-1-P.A.Chondamma

DW-1-N.Jagadeesh

Ex.P-1-Cheque Ex.P-1(a)-Signature of the accused Ex.P-2 to P-4-Endorsements issued by the bank authorities.

Ex.P-5-Copy of the legal notice

Ex.P-5(a)-Postal receipt

Ex.P-6-Postal acknowledgements

Ex.P-7-Reply notice.

Ex.D-1-Complaint given by the accused before police station.

Ex.D-2-Endorsement issued by Sub-Inspector of police.

Ex.D-3-Letter given by accused to the Manager of Indian bank.

7. The complainant herself got examined as P.W.1 and she produced seven documents which were marked as Exs.P.1 to P.7. Accused got himself examined as D.W.1 and he produced three documents which were marked as Exs.D.1 to D.3.

8. Upon conclusion of trial, learned trial Judge found the accused guilty and convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.50,000/-. In default to pay fine amount, to undergo simple imprisonment for two months. Accused was directed to pay a compensation of Rs.1,00,000/-and cheque amount of Rs.1,50,000/-to the complainant.

9. Being aggrieved accused preferred criminal appeal No.18/2016 and learned appellate court modified the order of sentence passed by the trial court as under:

The order of sentence of simple imprisonment of one year passed by the trial court is hereby set aside.

The appellant/accused is hereby sentenced to pay a fine of Rs.3,05,000/-in default of pay a fine accused shall undergo simple imprisonment for six months. Out of the fine amount if recovered Rs.3,00,000/-shall be paid to the complainant and Rs.5,000/-shall be confiscated to the state.”

10. Bein