THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND THE ORDER OF APPELLATE COURT PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI CONFIRMING THE SAME BY ITS ORDER DATED 12.09.2019 IN CRL.A.NO.64/2019 AND ORDER OF CONVICTION DATED 01.12.2018 IN C.C.NO.877/2017 PASSED BY THE III ADDITIONAL CIVIL JUDGE AND J.M.F.C., UDUPI AND ACQUIT THE PETITIONER/ACCUSED FOR THE OFFENCE P/U/S 138 OF NEGOTIABLE INSTRUMENT ACT AND SET HIM FREE.

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

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

ORAL ORDER

Heard Smt. Haleema Ameen, learned counsel for the revision petitioner and Sri Shivaprasad Nayak, learned counsel for the respondent.

2. Petitioner failed to appear before the Court and therefore there is no possibility of amicable settlement.

Respondent is present before the Court.

3. Present revision petition is filed by the accused who suffered an order of conviction dated 01.12.2018 in C.C.No.877/2017, on the file of III Additional Civil Judge and JMFC., Udupi, confirmed in Crl.A.No.64/2019, dated 12.09.2019, on the file of Principal District and Sessions Judge, Udupi.

4. Facts of the case would reveal that in respect of the dishonored cheque bearing No.712598, drawn on Syndicate Bank, Mulki Branch, dated 27.10.2016 came to be dishonored. There was no compliance to the callings of statutory notice resulting in the respondent seeking action against the revision petitioner herein for the offence punishable under Section 138 of the Negotiable Instruments Act.

5. Learned Trial Judge after completing the necessary formalities taking note of the fact that the accused failed to place any material evidence on record and also failed to cross- examine the complainant, convicted the accused for the offence punishable under Section 138 of Negotiable Instruments Act and imposed fine of Rs.16,05,000/- as against the cheque amount of Rs.8,00,000/-.

6. Learned judge in the First Appellate Court dismissed the appeal filed by the accused. Thereafter accused is before this Court in this revision.

7. Smt. Haleema, learned counsel for the revision petitioner would contend that there is a lapse on the part of the accused in not cross examining the complainant and not planning any defence evidence.

8. Therefore, there cannot be any grievance with regard to the conviction of the accused for the offence under Section 138 of the Negotiable Instruments Act, that too in the limited scope of revisional jurisdiction.

9. However, she would contend that since the amount of fine imposed is more than double the cheque amount, same needs interference and also no special reasons are assigned in the impugned judgments for imposing double the cheque amount and sought for modification of the sentence.

10. Per contra, Sri Shivaprasad Nayak, learned counsel for the respondent supports the interim judgments.

11. Having heard the arguments of both sides, this Court perused the material on record meticulously.

12. On such perusal of the material on record, it is not in dispute that Ex.P.1 cheque belongs to the accused and the same is dishonored for want of funds. There was no compliance to the callings of statutory notice.

13. As per the principles of law enunciated in Indian Bank Association vs. Unidon of India and others reported in (2014) 5 SCC 590, trial should have commenced from the defence evidence.

14. Since the complainant got examined and placed on record documentary evidence corroborating the contents of the complaint, the Trial Magistrate raised the presumption under Section 139 of the Negotiable Instruments Act, which is a rebuttable presumption.

15. To rebut the presumption there is no defence evidence on record. Further cross examination of the complainant has also not taken place and the said conduct is attributable purely to the accused.

16. Taking note of the same, conviction needs to be maintained.

17. However taking note of