2012 (8) TMI 1204 - HC - Indian Laws

Summary

Issues involved: Questioning order of conviction and sentence u/s 138 of Negotiable Instruments Act.

Summary:
1. The appellant challenged the order of conviction and sentence u/s 138 of the Negotiable Instruments Act, contending that the necessary ingredients for establishing the offence were not proven by the respondent-complainant. The defense of the accused was not correctly appreciated, leading to a plea for interference due to the perceived perversity in the judgments.

2. The respondent argued that the issuance of the cheque in question was not disputed, and after its return by the bank, a demand was made for payment which was not fulfilled, resulting in the filing of the complaint. The evidence presented, including witness testimony and various exhibits, supported the guilt of the accused as found by the Magistrate and upheld by the appellate court. The concurrent findings of fact by the lower courts warranted no interference.

3. Upon reviewing the record, the key consideration was whether the lower courts were justified in holding the petitioner guilty of the offence u/s 138 of the Act.

4. It was established that the petitioner had entered into an agreement with the respondent, issuing cheques towards refund which were subsequently returned. Despite a demand notice and a reply seeking time for payment, the amount remained unpaid, leading to the filing of the complaint under the relevant sections.

5. The complainant's deposition as PW-1 supported the claim made based on the cheques and related documents. The court, following the presumption that the cheque was issued for a debt, found the accused's defense to be improbable and inconsistent. With the failure to rebut the presumption, the Magistrate's finding of guilt u/s 138 of the Act was deemed justified, with no errors in the appreciation of evidence noted. The petition was dismissed, granting the petitioner time to deposit the fine, failing which custodial sentence would be enforced, and the deposited amount in the Trial Court would be released to the complainant.