Proper appreciation of evidence and adherence to legal provisions under Section 138 of the Negotiable Instruments Act are crucial in determining the guilt of the accused in dishonouring a cheque.

JUDGMENT

Sreenivas Harish Kumar, J. - This revision petition is filed by the accused in C.C. No. 8523/2009 on the file of the XV Additional Chief Metropolitan Magistrate, Bengaluru.

2. The respondent initiated proceeding under Section 138 of the Negotiable Instruments Act ('N.I. Act' for short) against the petitioner as the cheque issued by him for Rs. 1,15,000/- dated 18.10.2008 was dishonoured for want of sufficient funds in the bank account of the petitioner. The respondent issued a legal notice on 12.02.2009 by registered post with acknowledgement due and certificate of posting, demanding repayment of the cheque amount. Since the petitioner did not comply with the demand, he initiated action.

3. The trial Court after appreciating the evidence both oral and documentary, found the petitioner guilty of the offence under Section 138 of N.I. Act, sentenced him to pay fine of Rs. 1,25,000/- with default sentence of six months imprisonment. The trial Court ordered to pay a sum of Rs. 1,20,000/- to the respondent by way of compensation out of the fine amount. Aggrieved by the judgment of conviction, the petitioner preferred an appeal before the Sessions Court and the appellate Court by its judgment dated 15.03.2016 dismissed the appeal and hence this revision petition.

4. Heard Sri Pavan Kumar G, Advocate on behalf of Sri Prema Kumar G.A., counsel for the petitioner and Sri Bryen Stienberg, counsel for the respondent.

5. It was the argument of Sri Pavan Kumar G, that the trial Court as well as the appellate Court have not considered two aspects, namely, that in Ex. P.2, the cheque in question, there is interpolation. The number 11' appears to have been inserted behind the number 5'. Actually the cheque was issued for Rs. 5,000/- and the respondent made it as Rs. 1,15,000/- by inserting the number 11'. The contents of the cheque are not in the handwriting of the petitioner. Inspite of this aspect being brought to the notice of the trial Court, it has not given any finding and therefore there is irregularity in appreciation of the material evidence. The second point that he has argued is that the demand notice issued by the respondent as per Ex. P.4 was not served on the petitioner. The respondent has produced postal acknowledgment as per Ex. P.5 to show that it was served on the petitioner. But the petitioner has disputed his signature on the postal acknowledgment. This was one of the contentions taken by the petitioner and the trial Court has not given finding on it. He further argued that even the appellate Court has not re-appreciated the evidence and in this view the interest of the petitioner has been affected. Hence this revision petition is liable to be allowed.

6. Sri Bryen Stienberg, counsel for the respondent submits that the trial Court has properly appreciated the evidence. He takes me through para 15 of the judgment of the trial Court to argue that the trial Court has considered all the documents and has appreciated the evidence correctly. Actually the petitioner is a businessman and was regularly purchasing clothes from the respondent and in connection with one such transaction, he issued a cheque for Rs. 1,15,000/-. Ex. P.2 does not contain any interpolation as argued by the counsel for the petitioner. He further argued that the notice issued by the respondent before initiating action under Section 138 of N.I. Act was served on the petitioner. He further argued that even otherwise, after the petitioner received summons from the trial Court nothing prevented him from complying with the demand as per the ratio laid down by the Hon'ble Supreme Court in the case of C.C. Alavi Haji vs. Palapetty Muhammed And Another [2007 (6) SCC 555]. Therefore it is his argument that this revision petition is devoid of merits and it is to be dismissed.

7. I have considered the arguments.

8. The petitioner's counsel has raised two points. Firstly with regard to interpolation in the cheque Ex. P.2, it is to be stated that if the judgment of the t