IMPORTANT POINT
Dishonour of cheque—Conviction and sentence upheld.

Mohammad Nawaz, J.—The petitioner is before this Court questioning the concurrent findings of the Courts below, wherein he was convicted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as ‘NI Act’, for brevity) by the Court of Civil Judge and JMFC, Koppal in CC No.26/2009 dated 01.10.2006, which is confirmed by the Presiding Officer, FTC-II, Koppal in Crl.A. No.42/2010 by judgment dated 11.03.2011.

2. For the offence punishable under Section 138 of NI Act, the accused was sentenced to pay a fine of Rs.70,000/- and in default of payment of fine, to undergo simple imprisonment for one year. It was further ordered by the Trial Court that out of the fine amount, the complainant is entitled for Rs.60,000/- and the balance amount of Rs.10,000/- is ordered to be to remitted to the State as expenses incurred in the prosecution.

3. I have heard the learned counsel appearing for the petitioner and the learned counsel for the respondent.

4. The case of the complainant is that the accused was his friend and in the month of April, 2007, the accused borrowed hand loan of Rs.60,000/- with a condition to repay the same within six months, however, it was not paid. When the complainant demanded the said sum, the accused issued a cheque dated 4.11.2007 drawn on Shree Veerapulakeshi Co-op, Bank Ltd., Branch Koppal in discharge of the loan amount. However, when the cheque was presented to the Bank for realization of the amount, it was dishonoured for insufficiency of funds. The accused failed to make repayment even after receipt of the notice sent by the complainant, and therefore, committed an offence punishable under Section 138 of NI Act.

5. Before the Trial Court, the complainant was examined as PW1 and Exs.P1 to P9 were got marked. The accused was examined as DW1 and on his behalf, Exs.D1 to D3 were marked. The trial Court considering the oral and documentary evidence was pleased to convict and sentence the accused as stated supra. The appeal preferred by the accused was also dismissed by the appellate Court.

6. It is the contention of the learned counsel for the petitioner that the accused even before presentation of the cheque by the complainant had filed a complaint as per Ex.D3 and further submitted that as per Ex.D1, he had issued a legal notice to the complainant asking him to return the blank cheque which was issued by him and according to the said notice, in spite of repayment of the amount, the cheque was not returned to the accused. He further submits that Ex.D2 is the reply notice sent on behalf of the complainant. Hence, he submitted that the accused has rebutted the presumption provided under Section 139 of the NI Act and therefore, both the Courts below have erroneously passed the impugned order and seeks to allow the petition.

7. Per contra, the learned counsel for the respondent-complainant submits that the accused issued the cheque for Rs.60,000/-. Signature on the cheque is also admitted by the accused. Issuance of the cheque has been proved by adducing acceptable evidence and even to the notice at Ex.D1, he has replied denying the allegations made therein. He further submits that there is no illegality committed by the trial Court while passing the impugned judgment and order of conviction and sentence, which has been rightly confirmed by the appellate Court after giving reasons. Therefore, he seeks to dismiss the revision petition.

8. I have perused the impugned judgment passed by the Courts below and also perused the lower Court records.

9. The cheque in question is marked as per Ex.P1, same is dated 4.11.2007. It is the case of the complainant that the accused had borrowed hand loan of Rs.60,000/- and in discharge of the said debt, he had issued the cheque for a sum of Rs.60,000/- which was subsequently dishonoured and in spite of issuance of legal notice, the accused failed to repay the amount. Therefore, the accused committed the offence punishable under S