IMPORTANT POINT
It is duty cast upon person who has issued cheque to see that there must be sufficient amount in his account and even if account is inactive, to make it as active when cheque is issued.

H.P. Sandesh, J.—The revision petitioner has filed this criminal revision petition under section 397(1) read with section 401 of Cr.P.C., challenging the judgment dated 23.6.2010, passed by the Judicial Magistrate First Class, Yallapur, in C.C.No.140/2009 and the judgment dated 27.11.2010, passed by the District and Sessions Judge, Uttara Kannada, Karwar, in Crl.A.No.95/2010.

2. The parties are referred as per their ranking before the trial Court.

3. The complainant has filed a private complaint under section 200 of Cr.P.C. for the offence punishable under section 138 of the Negotiable Instruments Act against the accused alleging that the accused and the complainant are known to each other since many years and the accused has obtained a hand loan of Rs. 3,12,000/- from the complainant on 1.7.2004 with a promise to repay the same within 25.3.2006. The accused failed to repay the amount and hence the complainant demanded to repay the amount and accordingly the accused has issued two cheques for Rs. 1,75,000/- and for Rs. 1,30,000/- on 25.3.2006 and on 30.6.2006, respectively, drawn on Vikas Urban Co-operative Bank Yallapur.

4. The said cheques were presented for collection and they were returned with an endorsement ‘insufficient funds’ and hence the complainant has filed the complaints in C.C.Nos.36/2007 and 37/2007 and ultimately the said cases were ended in compromise on 16.8.2008. In terms of the compromise, the accused has to pay the amount of Rs. 2,80,000/- in full and final settlement and hence the accused has issued a cheque dated 25.11.2008, drawn on ICICI Bank, Sirsi branch, for Rs. 2,80,000/- and when the said cheque was presented, the bank has issued an endorsement ‘inactive account’ and hence a legal notice was issued on 12.1.2009 and when the accused did not comply, a complaint was filed for the offence punishable under section 138 of the Negotiable Instruments Act and thereafter case has been registered and after the trial, the Court below convicted the accused for the offence punishable under section 138 of the Negotiable Instruments Act and being aggrieved by the said judgment the accused has preferred an appeal in Crl.A.No.95/2010 and the same is also dismissed and hence the present revision petition.

5. The main contention of the revision petitioner before this Court is that both the Courts below have failed to take note of the fact that the cheque has been returned by the bank on the ground ‘inactive account’ and hence the offence under section 138 of the Negotiable Instruments Act is not at all attracted and further contention that the complainant has not at all established that as on the date of return of cheque by the banker, whether there was sufficient funds in the bank in his account or not is not at all established and hence both the Courts below have committed an error and hence the judgment is liable to be set aside.

6. Though this matter was listed for several times for arguments, the counsel for respondent did not choose to appear before the Court and hence this Court taken as no arguments from respondent’s side and reserved the matter for judgment.

7. For having taken note of the grounds urged in the revision petition, the arguments of the petitioner’s counsel and also on perusal of records of both the Courts, the point that arises for consideration of this Court is whether the revision petitioner has made out the ground to allow the revision petition coming to the conclusion that both the Courts below have committed an error apparent on record to invoke revision jurisdiction.

8. Admittedly there is no dispute with regard to issuance of cheque and also the signature and further in the reply which is marked as Ex.P.6, the accused has categorically admitted the liability and also issuance of cheque and on perusal of the evidence of the parties also it is clear that the cheque is issued in pursuance of the compromise entered into between the parties and the subject cheque is issued for honouring