AND

ORDER

DATED

08.07.2015 IN CRIMINAL APPEAL NO. 12/2012 PASSED BY

THE COURT OF THE III ADDL. DISTRICT & SESSIONS

JUDGE, D.K., MANGALORE AND THE JUDGEMENT DATED

30.12.2011 IN CC NO. 61/2010 PASSED BY THE COURT OF

THE SENIOR CIVIL JUDGE & JMFC., BANTWAL, D.K. AND

THIS REVISION PETITION BE ALLOWED BY ACQUITTING

THE PETITIONER FOR THE OFFENCES PUNISHABLE UNDER

SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT IN

THE INTEREST OF JUSTICE.

THIS CRIMINAL REVISION PETITION HAVING BEEN

HEARD AND RESERVED ON 23.06.2023 COMING ON FOR

PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT

PRONOUNCED THE FOLLOWING:

O R D E R

The

revision

petitioner

being

aggrieved

and

dissatisfied by the concurrent judgments of conviction and

sentence passed against him in CC No. 61/2010 passed by

the Court of the Senior Civil Judge & JMFC., Bantwal, D.K.,

affirmed by the III Addl. District & Sessions Judge, D.K.,

Mangalore vide Judgment dated 30.12.2011, has preferred

this revision.

2. Parties to this revision are referred to as per their

rank before the trial court for convenience.

3

3. Brief facts leading up to this revision are as under:

complainant and accused were known to each other. In the

first week of January 2007, accused borrowed a sum of

Rs.38,000/- to meet his urgent needs with an assurance to

repay the same within thirty days to together with interest

at the rate of 15% p.a. It is the case of the complainant

that, he advanced the said loan amount and in the first

week of February 2007, he requested the accused to repay

the said amount. In discharge of the said debt, accused

issued two cheques dated 15.2.2007 for Rs.19,000/- each

drawn

on

Vijaya

Bank,

Vitla

Branch.

Complainant

presented the said cheques for encashment. But, they

were dishonoured for want of "insufficient funds" in the

account of the accused as per memo dated 4.6.2007

issued by the Bank. Once again, the complainant

presented the said cheques but, they were again

dishonoured. Therefore, complainant got issued a statutory

notice on 7.6.2007 calling upon the accused to pay the

cheque amount. The said notice was duly served on the

accused on 9.6.2007 but, he has issued a false reply on

4

14.6.2007.

Therefore,

complainant

presented

the

complaint under Sec.200 of Cr.PC against the accused for

the offence punishable under Section.138 of the NI Act.

4. After filing the complaint, the trial Court took

cognizance of the offence, recorded the sworn statement

of the complainant and issued process against the

accused. Pursuant to the summons, accused appeared

before the trial Magistrate and was enlarged on bail.

Thereafter substance of accusation was recorded against

accused for the offence under Sec.138 of NI Act. Accused

pleaded not guilty and claimed to be tried. To prove the

guilt of the accused, complainant himself was examined as

PW.1 and also examined one more witness by name

Sanjeeva Billava as PW.2 and got marked Ex.P1 to P21

closed complainant's evidence.

5. Thereafter, the accused was questioned under

Sec.313 of Cr.PC so as to enable him to answer the

incriminating circumstances appearing in the evidence of

5

the complaint. He denied his complicity in the crime and

did not choose lead any defence evidence on his behalf.

6. The learned trial Magistrate on hearing found the

accused guilty for the offences punishable under Sec.138

of NI Act and passed the judgment of conviction and

sentence as under:

"The accused is found guilty and

convicted under Section 255(2) of Cr.P.C for

the offence punishable under Section 138 of

N.I.Act.

Further, the accused is sentenced

to pay a fine of Rs.54,500/-. Failing wich he

shall undergo simple imprisonment for 6

months. The entire amount if recovered

shall

be paid

to

the

complainant

as

compensation under Section 257(3) of

Cr.P.C."

7. This judgment of conviction and sentence was

challenged by the accused by preferring an appeal before

the III Addl.Dist.and Sessions Judge, D.K. Mangaluru

12/2012. The learned appellate Court after hearing the

arguments