2021 (3) TMI 593 - HC - Indian Laws

Dishonor of Cheque - insufficient funds - error apperent on the face of record or not - no reply or compliance of calling of notice which resulted in filing of the Criminal case against the accused - offence punishable under Section 138 of the Negotiable Instruments Act - HELD THAT - In the case on hand, Ex.P-1 cheque and the signature found therein is not in dispute. So also, the dishonor of cheque and issuance of statutory legal notice is also not in dispute. Perusal of cross examination of PWs.1 2 depicts that the accused has taken a defence that he had a monetory transaction with DW-2 and in that regard he had issued Ex.P-1 cheque to DW-2, who is none other than the co-brother of the complainant and Ex.P1 has been mis-used by the complainant to foist a false case against the accused herein. To probabalise such a defence, the accused did take the responsibility of not only examining himself as DW-1 but also summoned Sri Manjunath; the co-brother of the complainant who is examined as DW-2. In his cross examination, it has been categorically elicited that the cheque in question Ex.P1 was not collected by Manjunath from accused and handed over to the complainant for the purpose of presenting it and marking it as cause of action for filing a complainant. The first Appellate Court on re-appreciation of the entire material available on record concurred with the judgment passed by the learned Magistrate and did not alter the sentence. Having regard to the circumstances available in the case on hand and the defence having not been probabalised, this court is of the considered opinion that there is no error apparent on the finding recorded by the learned Magistrate in holding that the accused has committed an offence u/s.138 of the Negotiable Instruments Act, which has been confirmed by the first Appellate Court. In the considered opinion of this court, ordering ₹ 25,000/- fine towards the State is excessive as no State missionary is involved in the case on hand. Therefore, this court is of the considered opinion that ordering a sum of ₹ 2,30,000/- as fine by reducing from ₹ 2,50,000/- and maintaining compensation of ₹ 2,25,000/- and fine of ₹ 5,000/- payable to the State would meet the ends of justice - Application allowed in part.

Summary

Issues:
1. Conviction under Section 138 of the Negotiable Instruments Act.
2. Validity of the sentence imposed.

Analysis:

Issue 1: Conviction under Section 138 of the Negotiable Instruments Act
The case involved a complaint under Section 138 of the Negotiable Instruments Act where the accused issued a cheque that was dishonored due to insufficient funds. The complainant alleged a hand loan advanced to the accused, leading to the legal proceedings. The accused pleaded not guilty, and the trial court convicted him based on evidence presented by the complainant and witnesses. The accused contended that the cheque was issued to another individual and misused by the complainant. The first Appellate Court upheld the conviction, finding no merit in the accused's defense. The court noted discrepancies in the evidence but deemed them minor and insufficient to overturn the conviction. The accused failed to rebut the statutory presumption under Section 139 of the Act, leading to his conviction.

Issue 2: Validity of the sentence imposed
The accused was sentenced to pay a fine of ?2,50,000, with a significant portion to be compensated to the complainant. The court found the fine excessive, especially the portion payable to the State, as no State interest was involved. Consequently, the court reduced the fine to ?2,30,000, maintaining the compensation to the complainant at ?2,25,000 and the fine to the State at ?5,000. The revised fine was deemed appropriate to meet the ends of justice. The accused was granted an extended period to pay the fine due to the prevailing COVID-19 pandemic situation.

In conclusion, the Revision Petition was partially allowed, maintaining the conviction under Section 138 of the Negotiable Instruments Act but reducing the fine amount imposed on the accused.