ORAL ORDER

This petition is filed challenging the concurrent finding in C.C.No.831/2011 on the file of JMFC, Hosanagar and Criminal Appeal No.10012/2018 dated 05.01.2019 passed by the V Additional Sessions Judge, Shivamogga sitting at Sagar.

2. The complaint is lodged against the petitioner alleging offence under Section 138 of Negotiable Instruments Act, 1881 (for short 'Act, 1881'). The cheque for Rs.1,43,000/- said to have been issued by the petitioner/accused is dishonoured and the complainant has issued a notice under Section 138 of Act, 1881 demanding the cheque amount within 15 days from the date of receipt of the notice. The amount is not repaid. Hence, the complaint is lodged.

3. Petitioner did not plead guilty. The Trial Court held that the transaction is established and sentenced the accused to undergo simple imprisonment for nine months and imposed fine of Rs.1,83,750/- out of which Rs.5,000/- is ordered to be defrayed towards the State expenditure and Rs.1,78,750/- is ordered to be paid to the complainant as compensation. It is also ordered that in case the fine amount is not paid, the accused shall undergo simple imprisonment for further three months.

4. The Appellate Court dismissed the appeal filed by the accused. Hence, the present petition.

5. Learned counsel appearing for the petitioner would submit that the petitioner issued the cheque as a security for the transaction with Shivaprakash Rice Mill as the petitioner used to purchase Paddy from the said Mill. It is submitted that the amount payable towards purchase of Paddy was repaid. However, the proprietor of the said rice mill Ishwarappa Gowda did not return the said cheque and the said cheque was misused by worker Jaya in the said Rice Mill and in this behalf, the petitioner had lodged the complaint which is marked at Ex.D.1.

6. It is urged that Trial Court and the Appellate Court failed to appreciate the contention relating to the misuse of the cheque as contended by the petitioner.

7. It is also urged that pursuant to the complaint lodged, FIR is registered against the said Jaya and the contentions that the cheque is altered and old cheque has been misused to file a false case against the petitioner are not properly appreciated despite the petitioner's contentions are apparent on the face of the record viz., the cheque in question.

8. In the alternative, learned counsel for the petitioner would also urge that sentence of nine months simple imprisonment and further three months imprisonment in the event of default to pay the fine is also disproportionate.

9. There is no representation on behalf of the complainant/respondent.

10. This Court has considered the contentions raised at the bar and perused the records.

11. Ex.D.1 is the complaint lodged by the petitioner against one Mr.Jayadevappa/respondent who was said to be working under Eshwarappa Gowda in Shivaprakash Rice Mill. Petitioner has admitted that he used to buy paddy from Ishwarappa Gowda and had issued a cheque as a security for the transaction. Thus, issuance of cheque is admitted. The signature on the cheque is also admitted. Petitioner’s contention is that the blank cheque has been misused.

12. Learned counsel for the petitioner would also refer to the contents of the cheque and would say that name of the complainant is not properly mentioned in the cheque. Some of the letters are in uppercase and some are in lowercase and it is also his further submission that the date is not written in proper format.

13. Learned counsel for the petitioner would also submit that the cheque was issued to the pet