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TMI Blog2016 (2) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... y with the statutory requirements before lodging the complaint. In the instant case, admittedly the cheque amount is 4,50,000/-. The learned trial Court found the convict petitioner guilty for the offence under Section 138 of the N.I. Act and sentenced him to suffer R.I. for six months and to pay a fine of 4,50,000/-, i.d. to suffer for further one month. The instant criminal revision petition is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... inant regarding dishonor of the cheque issued by the accused due to insufficiency of fund. He proved his said letter to the complainant as Exbt.1. He also identified the impugned cheque No. S.B.00/202/968844 dated 17.03.2007 and its counter foil, which are marked as Exbt. 2 and 3. He also identified the statement of account marked as Exbt. 4 of the accused person issued by the SBI, Udaipur as the cheque was against SBI, Udaipur. The statement shows insufficiency of fund. 9. P.W. 2 the complainant respondent deposed in the tune of his complaint. 10. Considering the above evidence and hearing the learned counsel of the parties, the trial court convicted the accused petitioner under Section 138 of the N.I. Act and sentenced thereto as stated supra. 11. Being aggrieved by and dissatisfied with the judgment and order of the learned trial court dated 5.4.2010, the accused petitioner preferred an appeal before the learned Sessions Judge, South Tripura, Udaipur (at present Gomati District). The learned Sessions Judge after hearing the parties upheld the judgment and order of the learned trial Court and dismissed the appeal. Hence the instant revision petition. 12. Mr. Chakraborty, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that no instrument had entered between the parties in payment of the aforesaid amount of ₹ 4,50,000/- when there is no relationship between the parties. Due to these legal and factual infirmities in the prosecution case, the order of sentence passed by the learned trial Court and affirmed by the appellate court is not sustainable and thus liable to be set aside. 16. The learned counsel for the convict petitioner in support of his contention has placed reliance on the decisions of the Apex Court in Reverend Mother Marykutty v. Reni C. Kottaram and anr, (2013) 1 SCC 327; in Lalit Kumar Sharma and anr v. State of Uttar Pradesh and anr, (2008) 5 SCC 638; and also in Krishna Janardhan Bhat v. Dattatraya G. Hedge, (2008) 4 SCC 54. 17. On the other hand, Mr. Das, the learned counsel for the respondent submits that the learned trial court has rightly passed the order of conviction and sentence as it has been proved that the convict petitioner has issued the aforesaid cheque to discharge his liability to repay the loan taken from the complainant respondent which on submission was dishonored by the Bank with an endorsement "Full covered not received". The above facts h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. According to this Court, the facts of those cases are totally different than the case in hand. Not only that, in case of Lalit Kr. Sharma and anr. (supra), during the pendency of the complaint petition, there was an agreement between the parties and it was agreed that if the cheque for a sum of ₹ 5,02,050 is issued, the complaint petition would be withdrawn and on the basis of the said agreement, a cheque was issued for the said amount which was also on presentation returned with the remark "insufficient fund". The second cheque was issued for the purpose of arriving at a settlement and not in discharge of the debt or liability of the company of which the appellants were said to be the directors. In the case in hand, there was no such agreement between the parties for settlement of the issue. Thus, this case has no direct bearing in the case in hand. 21. In K. Bhaskaran (supra), relied upon by Mr. Das, the Apex Court held: "As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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