In proceedings under Section 138 of the Negotiable Instruments Act, the primary objective is the recovery of money; therefore, imprisonment should generally be an alternative to the payment of a fine rather than a concurrent sentence, unless specific justifications are provided in the judgment.

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 17.05.2017 MADE IN C.C.No.4779/2011 BY THE COURT OF C.J.M., BANGALORE RURAL DISTRICT, BANGALORE AND THE JUDGMENT AND ORDER DATED 27.03.2018 MADE IN CRL.A.No.65/2017 BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.

THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

ORAL ORDER

Heard Sri G.C. Sriharsha, appearing on behalf of Sri Nishit Kumar Shetty, counsel for the petitioner. None appears for the respondent.

2. Accused who suffered an order of conviction dated 17.05.2017 in C.C.No.4779/2011 for the offence punishable under Section 138 of the Negotiable Instruments Act, on the file Chief Judicial Magistrate, Bengaluru Rural District, confirmed in Criminal Appeal No.65/2017, dated 27.03.2018, on the file of I Additional District and Sessions Judge, Bengaluru Rural District, is the revision petitioner.

3. Facts in the nutshell which are utmost necessary for disposal of the revision petition are as under:

3.1. In respect of a dishonored cheque, a complaint came to be lodged under Section 200 of Code of Criminal Procedure alleging the commission of the offence under Section 138 of Negotiable Instruments Act before the jurisdictional Magistrate.

3.2. Contents of the complaint would reveal that accused has borrowed hand loan in a sum of Rs.10,00,000/- for purchase of a flat in his native place at Gulbarga with a promise to return the same within six months. Complainant paid sum of Rs.8,50,000/- in the first week of October 2009 and he demanded for the payment of the hand loan in the month of June 2010.

3.3. Accused said to have taken time to repay the same till October 2010. In the second week of October again when the repayment of the loan amount was demanded, accused said to have issued two cheques in a sum of Rs.50,000/- and Rs.8,00,000/- respectively. As per the promise made by the accused, Cheque No.451637 in a sum of Rs. 8,00,000/- was presented before the bank on 03.01.2011, which got dishonored with an endorsement ‘Insufficient Funds’ on 04.01.2011.

3.4. Complainant issued a legal notice on 03.02.2011 demanding repayment of the amount covered under Cheque. Despite service of notice, there was no compliance to the callings of notice and there was no reply. Therefore, complainant sought for action against the accused.

4. Learned Trial Magistrate after completing the necessary formalities, summoned the accused and recorded the plea. Accused pleaded not guilty therefore trial was held.

5. In order to prove the case of the complainant, he got examined himself as P.W.1 and placed on record six documents which were marked as Ex.P1 to Ex.P6, comprising of cheque, bank endorsement, copy of the legal notice, postal acknowledgment and postal receipt.

6. As against the material evidence placed on record by the complainant, accused got examined himself as D.W.1 and two witnesses namely, Kulathimery and Chethana as D.W.2 and D.W.3 and placed on record copy of the complaint lodged with Ashok Nagar Police Station on 20.09.2010 and letter dated 21.09.2010 addressed to Manager Syndicate Bank as Ex.D.1 and Ex.D.2.

7. On conclusion of recording of evidence, learned Trial Magistrate heard the arguments of