9911796707
TMI Blog2022 (4) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... r his urgent need. Accordingly, he received hand loan on 20.08.2011 and promised to repay the same within six months. Thereafter, the complainant requested him to repay the amount number of times. Then the accused issued cheque of Syndicate Bank bearing No.807648 for a sum of Rs. 1,85,000/- drawn on Syndicate Bank, Belekeri, Branch as a part payment and informed the complainant to produce and collect the amount from bank. Accordingly, complainant presented the cheque to Bank. The same was returned with an endorsement"Payment was stopped by the drawer". Then, the complainant issued statutory legal notice on 15.06.2012 to accused. Accused gave a false reply and not paid the amount. Hence, complainant filed complaint under Section 138 of NI Act, before the Magistrate to take action in accordance with law. 4. Thereafter, the complainant got himself examined as PW.1 and got marked 8 documents as EX.P1 to P8. Respondent-accused got himself examined as DW1 and but no documents were marked. After hearing the arguments, the learned JMFC., convicted the accused and sentenced to pay Rs. 1,90,000/- and out of fine amount, a sum of Rs. 1,85,000/- is ordered to be paid to complainant as compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the documents. Ex.P1 is cheque which shows that said cheque was issued in favour of complainant for Rs. 1,85,000/-. Ex.P2 Urban bank memo, Ex.P3 indicates that cheque was dishonoured, Ex.P.4 is a statutory legal notice calling upon the complainant to pay the amount mentioned in the cheque. Ex.P5 and P6 are postal receipts and acknowledge and Ex.P7 is a reply given by the accused. Ex.P8 is a on demand promissory note. On perusing the documents produced by the petitioner, the Court has taken the cognizance and proceeded against the respondent. Petitioner has filed his examination in chief evidence as PW1 which is nothing but reiteration of contents of written complaint averments and stated about documents produced by him. In the cross examination, the complainant has stated that he knew the accused since 15 years through his brother. PW1 has not stated what is the denomination of each note and what time cheque issued. Since evidence is recorded in the year 2018 i.e. nearly after lapse of 7 years the PW1 is not expected to say minute details of transactions so that is not a material one. Further, in the cross examination, it is stated that he was working as a electrical contractor. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd he has intimated the Bank to stop the payment and the signature on the demand note is not of his signature. This is in examination in chief. He never stated that, he does not know this complainant or his brother. He does not say that complainant has no financial capacity, he does not say that how the cheque was mis-used. 14. On the other hand, he has admitted in the cross examination that signature on Ex.P1 is his signature. His defence is contrary to his reply notice, wherein he has stated that he has lost his cheque book. But, suggestion is that he has lost his three cheques and out of that one cheque is misused by complainant. This stand itself is different. The accused has not produced any documents before the Court to show that he has informed the Bank that he lost the cheques or cheque book, he has not examined the Manager also but simply state that he has informed the bank to stop the payment will not help the accused-petitioner. Even he has not stated that on which date he has given intimation to bank. According to him, neither he mentioned the date nor that he has given any intimation to bank to stop payment he has not lodged any complaint to the court or to the Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and that the same having been returned by the bank, whereafter a demand was made and the payment having not been made, complaint was filed and the offence committed by the accused having been established by the evidence of P.W.1, and on the basis of Exs. P.1 to P.17, learned Magistrate is justified in finding the accused guilty and in imposing the sentence. Learned Counsel submitted that the Appellate Court has re-appreciated the evidence and the appeal having been found to be devoid of merit, was dismissed. Learned Counsel submits that in view of the concurrent finding of fact by the Courts below, no interference in the matter is called for. 4. Perused the record. In view of the rival contentions, point for consideration is, whether the Courts below are justified in holding the petitioner guilty of an offence under Section 138 of the Act? 5. Petitioner does not dispute the fact of she having entered into an agreement of sale dated 5-9-2007 with the respondent vide Ex.P.1. The sale transaction did not materialize. Hence she issued the cheques Exs.P.6 to P.9 towards refund of the advance sale consideration amount received pursuant to Ex. P.1. Said cheques when presented, were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge burden shifted upon him. This defence is not acceptable. 17. Therefore, viewed from any angle, if the entire materials are considered, then in my considered view, the judgment passed by the trial Court which was confirmed by appellate Court cannot be said as either illegal or erroneous. Both the courts have considered the provisions of laws and also the presumption under Section 139 of the NI Act properly. The accused has failed to rebut such presumption. 18. I find no perversity or illegality in the judgments passed by both the Courts. Hence, petition being devoid of merits and liable to be dismissed. Accordingly, I pass the following: ORDER Petition is hereby dismissed. Judgment dated 23.03.2021 passed by the learned I Addl. District and Sessions Judge, Uttara Kannada, Karwar sitting at Sirsi, in Crl.A.No.5022/2019 whereby confirming the judgment of conviction and order of sentence dated 28.06.2019 passed by the learned I Addl. JMFC, Sirsi in CC No.789/2012 for the offence punishable under Section 138 of Negotiable Instruments Act is hereby confirmed. Sent back the trial Court records. The amount in deposit be transmitted to the trial Court for withdrawal by the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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