The accused failed to rebut the presumption under the Negotiable Instruments Act regarding cheque dishonor, leading to conviction, while the fine imposed was deemed excessive and modified.

JUDGMENT :

M.G. UMA, J.

The revision petitioner being the accused in C.C.No.360/2018 on the file of the learned Civil Judge and JMFC, Sindagi, is impugning the judgment of conviction and order of sentence dated 30.10.2023, convicting him for the offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘N.I. Act’) and sentencing to pay fine of Rs.4,10,000/- with default sentence, which was confirmed in Criminal Appeal No.88/2023 on the file of the learned IV Additional District and Sessions Judge, Vijayapura vide judgment dated 20.07.2024.

2. Heard Sri R.S.Lagali, learned counsel for the revision petitioner and Sri Shivanand V.Pattanashetti, learned counsel for the respondent. Perused the materials on record.

3. It is the contention of the complainant before the Trial Court that, the accused had borrowed a sum of Rs.2,00,000/- to meet her financial needs during November 2012 agreeing to repay the same within one month. Towards repayment of loan amount, the accused issued two cheques as per Exs.P1 and P2 for Rs.1,00,000/- each. When the said cheques were presented for encashment, the same were dishonoured as there was insufficient fund in the account of the accused. The legal notice as per Ex.P7 was issued. The accused deliberately evaded the service of notice and refused to receive the same. Even after refusal of the legal notice, the accused had not repaid the cheque amount, nor replied to the same and thereby committed the offence punishable under Section 138 of N.I. Act.

4. Setting out these facts and circumstances, the private complaint in P.C.No.31/2013 came to be filed before the Trial Court. The Trial Court took cognizance of the offence and summoned accused by registering C.C.No.360/2018. The accused appeared before the Trial Court and pleaded not guilty for the offence punishable under Section 138 of the N.I.Act. The complainant examined himself as PW.1 and got marked Exs.P1 to P9 in support of his contention. The accused has denied all the incriminating materials available on record, examined herself as DW.1 and got marked Exs.D1 to D4 in support of her defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the complainant is successful in proving the guilt of the accused beyond reasonable doubt, but the accused has not rebutted the legal presumption and therefore is liable for conviction. Accordingly, the impugned judgment of conviction and order of sentence came to be passed.

5. Being aggrieved by the same, the accused has preferred Criminal Appeal No.88/2023. The First Appellate Court on re-appreciation of the materials on record, found that, the complainant is successful in proving the guilt of the accused beyond reasonable doubt and accordingly dismissed the appeal by confirming the judgment of conviction and order of sentence. Being aggrieved by the same, the accused is before this Court.

6. Learned counsel for the petitioner contended that, issuance of cheques as per Exs.P1 and P2 towards the discharge of legally enforceable debt is not proved by the complainant as lending of the amount itself is not proved. On the other hand, PW.1 during cross- examination admitted that he was doing business in shares and these cheques were issued as a security. Thus, the accused is successful in rebutting the legal presumption. The Trial Court and the First Appellate Court have not appreciated this fact and proceeded to convict the accused.

7. The second contention raised by the learned counsel for the petitioner is that, as per Section 138 of N.I. Act, maximum sentence that could be imposed is to levy fine upto double the cheque amount, but in the present case fine of Rs.4,10,000/-