The provisions of Section 138 of the Negotiable Instruments Act apply when issued cheques are dishonored due to insufficient funds, thus reinforcing the legal obligation of repayment.

ORDER :

VIJAYKUMAR A.PATIL, J.

Criminal Revision petition 100153/2018 is filed by the accused challenging the judgment and order dated 21.10.2016 passed in C.C. No.576/2009 by the I Additional Civil Judge and II Additional JMFC, Sirsi (for short, ‘trial Court’) and Criminal Appeal No.5042/2016 dated 12.07.2018 by the I Additional District and Sessions Judge, U.K. Karwar, sitting at Sirsi (for short, ‘the Appellate Court’)

2. Criminal Revision petition 100054/2019 is filed by the complainant challenging the judgment and order dated 21.10.2016 passed in C.C. No.576/2009 by the I Additional Civil Judge and II Additional JMFC, Sirsi and Crl.A.No.5045/2016 dated 12.07.2018 by the I Additional District and Sessions Judge, U.K. Karwar, sitting at Sirsi, seeking to enhance the penalty to Rs.5,00,000/- and pay the same as a compensation and further to sentence the accused to imprisonment for a period of two years.

3. For the sake of convenience, the parties are referred as per the ranking before the trial Court.

4. The brief facts leading to filing of these petitions are that, the complainant and the accused were friends and the accused borrowed a hand loan of Rs.2,50,000/- from the complainant on 31.01.1996. The accused executed a bond for borrowing the amount and later he sends letter dated 26.01.1997, 15.05.1997 and 25.02.1998. It is averred that the accused issued a cheque for a sum of Rs.20,000/- for part payment and also executed promissory note on 14.05.2005 admitting the transaction.

5. It is further averred that the accused issued two cheques in favour of the complainant for a sum of Rs.1,25,000/- each and on presenting the said cheque by the complainant through his banker, the same was returned on 13.08.2008 with an endorsement ‘Account closed’. It is also averred that the complainant immediately issued notices to the accused to his addresses. He filed a private complaint under Section 200 of Cr.P.C against the accused for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 138 of N.I. Act).

6. The accused appeared before the trial Court, his plea was recorded. The complainant in order to prove his case, examined himself as PW1 and got marked documents Exs.P1 to P18(a). The accused examined himself as DW1 and got examined other two witnesses as DW2 and DW3 and also got marked documents Exs.D1 to D5.

7. The trial Court after considering the submissions, evaluated the oral and documentary evidence and passed the impugned judgment convicting the accused for the offence punishable under Section 138 of N.I. Act. The accused was sentenced to pay a fine of Rs.3,25,000/- and in default ordered to undergo simple imprisonment for a period of six months. It was further directed that a sum of Rs.3,15,000/- shall be paid to the complainant as a compensation. Being aggrieved, the complainant as well as accused preferred Criminal Appeal Nos.5042/2016 and 5045/2016 respectively. The District and Sessions Court dismissed both the appeals. Being aggrieved, these revision petitions are filed.

8. Sri. Dattatraya Timmanna Hebbar, learned counsel appearing for the accused/petitioner submits that the trial Court as well as the appellate Court committed a grave error in appreciating the evidence on record. It is submitted that the notice as required under law was not served on the accused. It is further submitted that the complainant is not capable of advancing a hand loan of Rs.2,50,000/- and the accused is not an income tax assessee and the complainant stole the blank signed cheques from the house of the accused which has been elicited in the cross examination of the complainant. It is also submitted that the docum