The defence taken by the accused that he was ready to discharge his liability if the complainant paid the loan amount is not sustainable for the simple reason that the defence taken by the petitioner/accused in no way helps to exonerate him from the liability of the offence under section 138 of the N.I. Act.

Asha Arora, J.

1. By consent of the learned Counsel for the parties, CRAN 10 of 2016 and CRR 03 of 2016 are taken together for disposal.

2. The revisional application arises out of the judgment dated th January, 2016 passed by the learned Sessions Judge, Andaman & Nicobar Islands in Criminal Appeal No. 11 of 2015 and the judgment and order dated 24th June, 2015 rendered by the learned Judicial Magistrate Second Court at Port Blair in CR case No. 54 of 2014/T.R.No.01 of 2015.

3. By the impugned judgment the learned Sessions Judge, Andaman and Nicobar Islands affirmed the judgment and order of conviction and sentence dated 24th June, 2015 passed by the learned Judicial Magistrate in CR case No. 54 of 2014 whereby the petitioner/ accused was held guilty of the offence under section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act). For the aforesaid offence the accused/petitioner was convicted and sentenced to suffer “one day imprisonment till rising of the court and also to pay compensation of Rs. 4,60,000 from the date of the order as per Section 357 (3) of the Cr.PC.” In default of payment of compensation the accused/petitioner was directed to suffer simple imprisonment for thirty days.

4. Aggrieved, the accused/petitioner filed the instant revisional application.

5. The factual matrix of the case in brief is that the respondent No.1 C.H.Ram Babu filed a complaint against the petitioner/accused R. Balasubramaniam under section 138 of the N.I. Act contending that he had sold a bus bearing registration No. AN 01 C 3109 to the petitioner/accused on 7th March, 2014 for a sum of Rs.3,30,000/-. A written agreement was executed between the parties on the same day and a sum of Rs. 1,00,000/-was paid by the accused/petitioner to the complainant/respondent No. 1. One post dated cheque of Rs. 2,30,000/-of the State Bank of India, Haddo Branch vide cheque No. 417188 dated 7th July, 2014 was also issued by the accused/petitioner in favour of the complainant/respondent No.1 towards the balance consideration amount. Thereafter the complainant/respondent No.1 handed over possession of the said bus along with all connected papers to the accused/petitioner who accepted the same and started plying the bus for his business purpose. The further case is that the cheque which was issued by the accused/petitioner was dishonoured due to insufficient fund. Thereafter the respondent No.1/complainant verbally asked the petitioner/accused to make payment of the cheque amount in cash but to no effect. A legal notice under section 138 of the N.I. Act was issued to the petitioner/accused who received the same but no payment was made by him nor did he give any reply to the said notice. The respondent No.1/complainant was therefore constrained to file a complaint under section 138 of the N.I. Act against the accused/ petitioner which was registered as CR Case No. 54 of 2014.

6. According to the petitioner/accused the bus was hypothecated to Nisha Bothra Sow Carpet, Madras. The loan amount was not paid by the complainant/respondent No.1 to the said firm so as per the terms of the agreement he (petitioner) was not liable to make any payment to the respondent No.1/complainant. It has further been contended that the bus has not been transferred in his name due to non payment of loan. For the aforesaid reason the State Transport Authority has not renewed the permit of the said bus so the petitioner is unable to ply the same. It is asserted by the petitioner that neither the learned Trial Court nor the learned Sessions Judge considered the aforesaid aspects and convicted him for the offence under section 138 of the N.I. Act.

7. Referring to paragraph 11 of the petition of complaint, Mr. Rao, learned Advocate for the petitioner submitted that there has been suppression of fact by the complainant/ respondent No.1 who made an incorrect averment therein by stating that “... even after receipt of the demand notice, the accused neither iss