IMPORTANT POINT
The court clarified the presumption of liability under Section 138 of the Negotiable Instruments Act while limiting the fine to double the cheque amount.

ORDER :

(V. Srishananda, J.)

Heard Sri Praveen Kumar K.S., learned counsel for the revision petitioner and Sri A Lourdu Mariyappa, learned counsel for the respondent.

2. Accused who has been convicted for the offence punishable under Section 138 of Negotiable Instruments Act (‘Act’ for short) in C.C.No.278/2016, dated 26.10.2016 on the file of Senior Civil Judge, K.R. Nagar, which was confirmed in Crl.A.No.218/2016, on the file of VIII Additional District and Sessions Judge, Mysuru, sitting at Hunsur, has preferred the present revision petition.

3. Facts in brief which are utmost necessary for disposal of the revision petition are as under:

A complaint came to be lodged by the respondent under Section 200 of Negotiable Instruments Act contending that on 25.03.2015, accused for his legal necessities borrowed a sum of Rs.2,00,000/-with a promise to repay the same within a short period of time and towards the repayment, issued a cheque bearing No.048182 in a sum of Rs.2,00,000/-drawn on Navanagara Urban Co-operative Bank Ltd., K.R. Nagar Branch, dated 29.04.2015, which on presentation came to be dishonored with an endorsement ‘Funds Insufficient.”

4. Legal notice as contemplated under the Act has been issued to the accused and the same was served on the accused. There was neither compliance nor reply from the accused. Therefore, complainant was constrained to file a complaint before the learned Trial Judge.

5. Cognizance of the offence was taken and presence of the accused was secured by the learned Magistrate and plea was recorded. Accused pleaded not guilty and therefore, trial was held.

6. In order to prove the case of the complainant, complainant got examined himself as P.W.1 and placed on record five documentary evidence, which were exhibited and marked as Exs.P.1 to P.5, comprising of cheque, bank endorsement, legal notice, postal receipt and postal acknowledgement.

7. Thereafter, the accused did not choose to lead any rebuttal evidence. Hence, accused statement as contemplated under Section 313 of Cr.P.C., was recorded, wherein accused denied all the incriminating circumstances.

8. Learned Trial Magistrate after hearing the parties, convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act and awarded fine of Rs.4,30,000/-of which, sum of Rs.4,00,000/-was ordered to be paid as compensation to the complainant and Rs.30,000/-as defraying expenses of the State.

9. Being aggrieved by the same, accused preferred an appeal before the District Court in Crl.A.No.218/2016.

10. Learned Judge in the First Appellate Court secured the records and heard the parties in detail and dismissed the appeal and confirmed the order of conviction and sentence, passed by the learned Trial Judge.

11. Being further aggrieved by the same, accused is before this Court on the following grounds:

- The Petitioner is innocent of the alleged offence and he has not at all committed any offence as alleged by the Respondent and he is innocent of the alleged offence.

- The courts below failed to appreciate the defence taken by the Petitioner, without application of mind straight away passed the impugned Judgment. As such same is liable to be set aside.

- The court below has failed to appreciate that as held by the Apex court it is mandatory that the person who alleges having lent loan to any person he has to produce the documents like pass book, IT returns to show that he lent such sufficient loan etc. On mere issuance of cheque court below not has drawn a presumption that such alleged cheque was issued for any legally recoverable debt or liability. In the instant case the Complainant has not discharge such burden cast upon him.

- The courts below come to the wrong conclusion that, the accused was in due to the complainant as on the date of issuance of cheques as alleged in the complaint. In the absence of any material to show that the accused was in due of that much of huge amount at the relevant point of time and without