The courts upheld convictions for dishonor of cheques due to insufficient funds, establishing liability on the basis of loan transaction evidence.

ORDER

In Crl.RP.No.192/2013 The petitioner has challenged the judgment of conviction dated 05.05.2012 passed by the IV Additional I Civil Judge and JMFC, Mysuru C.C.No.159/2009, by which, she was convicted for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act, 1881' for short) and the consequent sentence to pay fine of Rs.19,70,000/-. She has also challenged the judgment dated 16.01.2013 passed by the Sessions Judge, Fast Track Court-III, Mysuru in Crl.A.No.83/2012, by which, the judgment of conviction passed by the trial Court was upheld.

2. The complaint registered in C.C.No.159/2009 discloses the following; that the respondent and the petitioner were known to each other and that the petitioner availed a loan of Rs.30,00,000/- for her business. She repaid a sum of Rs.10,40,000/- but did not pay the balance Rs.19,60,000/-. Later, on being pursued, the petitioner handed over a cheque bearing No.163318 dated 10.11.2008 for a sum of Rs.19,60,000/-. However, the said cheque was dishonoured due to insufficient funds on 21.11.2008. The respondent caused a notice of demand on 02.12.2008 which was served. The petitioner replied to the notice partly admitting and claiming that she had raised a loan of Rs.22,50,000/-, of which, she had paid a sum or Rs.10,40,000/- and that she was liable to pay a sum of Rs.12,10,000/- along with interest at the rate of 18% per annum from 01.09.2008. Later, the respondent therefore initiated proceedings to prosecute the petitioner for an offence punishable under Section 138 of the NI Act, 1881. After the sworn statement of respondent was recorded, the process in the proceedings was served on the petitioner, who pleaded not guilty and claimed to be tried. The respondent was examined as PW.1 and she marked Exs.P1 to P23. The statement of the petitioner under Section 313 of Cr.P.C. was recorded. The petitioner denied the incriminating evidence against her and lead evidence in defense as DW1.

3. Based on the oral and documentary evidence, the trial Court held that the petitioner had availed a loan from the respondent and had passed on the cheque in question for the repayment of a lawful debt and therefore, she had committed an offence punishable under Section 138 of the NI Act, 1881, as the cheque was dishonored due to insufficient funds. The trial Court therefore convicted her for the said offence and sentenced her to pay fine of a sum of Rs.19,70,000/-, failing which, she was directed to undergo simple imprisonment for a period of three months. Being aggrieved by the said judgment of conviction, she filed Crl.A.No.83/2012. The Appellate Court secured the records of the trial Court, heard the counsel for the parties and after framing points for consideration, dismissed the appeal in terms of its judgment dated 16.01.2013.

4. Being aggrieved by the same, the present revision petition is filed.

5. The petitioner was absent and therefore, this Court felt it appropriate to request an Officer of the Court to assist the Court as an Amicus Curiae. Smt.K.M.Archana, learned counsel has agreed to do so. The learned Amicus Curiae after going though the records submitted that the petitioner had denied issuance of the reply at Ex.P9 and the consequent notice at Ex.P10. She submitted that certain statement of the petitioner recorded before the Police were marked as Exs.P13 and P14. She contends that it is quite possible that the cheque in question was extracted from the petitioner at the Police Station. Even otherwise, she contends the petitioner had admitted her liability only to the extent of Rs.12,10,000/- and interest at the rat