ORDER

In this petition filed under Section 397 r/w 401 of Cr.P.C, petitioner who is arraigned as accused has challenged his conviction and sentence imposed by the trial Court for the offence punishable under Section 138 of N.I Act, which came to be confirmed by the Session Court by dismissing the appeal filed by him.

2. For the sake of convenience, the parties are referred to by their rank before the trial Court.

3. Complainant, which is a private limited company dealing in chit fund business filed a complaint under Section 200 Cr.P.C against the accused alleging the offence punishable under Section 138 of N.I. Act. It is the case of the complainant that accused and his wife Smt Uma were subscribers to 4 chits of the value of Rs.15 lakhs, Rs.9 lakhs, Rs.3 lakhs and Rs.3 lakhs. They successfully bid for chits and received the money. They were required to pay the balance. However, on their failure to pay the balance amount, arbitration proceedings were initiated. Despite due service of notice, the accused and his wife failed to appear before the arbitrator. Therefore, the Arbitrator proceeded ex-parte and passed the award, determining the amount due from the accused and his wife and ordered to pay the same with interest at 3% p.m.

4. According to the complainant, after the fact of passing award was brought to the notice of the accused, he issued the subject cheque for a total sum of Rs.21,77,000/- which includes the amount due from his wife also. However, when the cheque was presented for realization, it was dishonoured on the ground “Account closed”. Therefore, complainant got issued legal notice. The accused has failed to receive the notice despite information was delivered to him. Consequently, accused has failed to pay the amount due under the cheque. He has also not sent any reply. Without any alternate complaint is filed.

5. Accused appeared before the trial Court and contested the case. He has pleaded not guilty and claimed trial.

6. In order to bring home guilt to the accused, the GPA holder of the complainant company is examined as PW-1. Ex.P1 to 10 are marked.

7. During his statement under Section 313 Cr.P.C, the accused has denied the incriminating evidence led by the complainant.

8. The accused has not stepped into the witness box. But he has got marked a set of 28 receipts during the cross-examination of PW-1 as Ex.D1.

9. Vide the impugned judgment and order the trial Court accepted the contention of the complainant and convicted the accused and sentenced him to pay fine of Rs.21,82,000/-, in default to undergo simple imprisonment for three months.

10. The Session Court dismissed the appeal filed by the accused and thereby confirmed the judgment and order of the trial Court.

11. Being aggrieved by the same, the accused has filed this petition, contending that the GPA holder who is examined on behalf of complainant had no personal information and as such he was not competent to speak on behalf of the complainant and therefore with his evidence, the complainant has failed to prove the allegations against accused. The complainant has not produced any documents regarding the accused participating in the chits scheme run by the complainant. The Courts below have not appreciated the oral and documentary evidence placed on record in right perspective.

12. The Sessions Court has also erred in confirming the order of the trial Court. The citations relied upon by the Sessions Court are not applicable to the case on hand. The complainant has not proved that a sum of Rs.21,77,000/- was due from the accused. The complainant has also not disclosed the fact of execution petition filed by it against the accused. In the light of the decision of the Hon’ble Supreme Court Damodar S.Prabhu Vs. Sayed Babalal (Damodar)1, the complaint was liable to be dismissed. The trial Court has convicted the accused only on the basis of presumption under Sections 118 and 139 of the N.I. Act. The trial Court has not appreciated the fact that complainant has mis