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TMI Blog2021 (11) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... to the complainant - Irfan Chougley and therefore, there was no legally recoverable debt between the complainant and the accused. There is no action taken by the accused against the complainant or Venugopal Reddy for the alleged misuse of the cheque. The legal notice was replied on 03.07.2003. No prudent person would keep quiet if the cheque has been misused by the complainant even after approaching the lawyer and got a reply. Further, even after conducting the evidence, the accused has not explained in his written statement filed under Section 313(5) of Cr.P.C., as to how the signature found in Ex. P2 is not his signature. So also, the signature found in Ex. P1 is also not in dispute. All these aspects of the matter has been properly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. , Advocate For the Respondents : S. K. Acharya , Advocate ORDER Heard Sri H. Jayanth Poojary, learned counsel appearing on behalf of the revision petitioner and Sri S.K. Acharya, learned counsel appearing for the respondent and perused the records. 2. This revision petition is filed challenging the validity of the order passed in C.C. No. 692/2004 dated 09.08.2011 and the order passed in Crl.A. No. 18/2013 dated 02.01.2017 whereby the revision petitioner/accused has been convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short) and has ordered to pay a fine of ₹ 4,55,000/- with a default sentence of imprisonment for a period of six months. Out of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent was recorded as contemplated under Section 313 of Cr.P.C. wherein, accused denied all the incriminatory circumstances put against him and also filed a written submission as contemplated under Section 313 of Cr.P.C. In the written submission, accused contended that the complainant is a stranger and there is no brevity of contract between him and the complainant and the cheque that was issued to the Venugopal Reddy has been misused by the complainant and a false case has been foisted against the accused. 5. Learned Magistrate after considering the oral and documentary evidence on record, convicted the accused for the offence punishable under Section 138 of the Act and fined him in a sum of ₹ 4,55,000/- with a default sentence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have failed to appreciate the fact that even according to the complaint averments, the liability of the accused has been transferred to the complainant and whereby the cheque has been issued to the complainant which is not properly established by the complainant and therefore, sought for allowing the revision. 10. Per contra, learned counsel appearing for the respondent supported the impugned judgments. 11. In view of the rival contentions, the following points would arise for consideration; 1. Whether the revision petitioner has made out a case that the findings recorded by the learned Magistrate that the accused is guilty of the offence punishable under Section 138 of the Act which is confirmed by the First Appellate Court in C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained in his written statement filed under Section 313(5) of Cr.P.C., as to how the signature found in Ex. P2 is not his signature. So also, the signature found in Ex. P1 is also not in dispute. All these aspects of the matter has been properly considered by the learned Magistrate and recorded a categorical finding that cheque was issued for the legally recoverable debt and therefore, which on dishonour and the amount covered in the cheque being not paid, the accused has committed an offence punishable under Section 138 of the Act. 14. Learned judge in the First Appellate Court after re-appreciation of the entire material on record, in the light of the grounds urged in the appeal came to the conclusion that the accused has not made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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