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2021 (2) TMI 960 - HC - Indian LawsDishonor of Cheque - allegation is that having issued the Cheque towards discharge of his debt due to him, the petitioner has issued stop payment instructions to the banker to defraud him - Section 138 of the Negotiable Instruments Act - HELD THAT:- The respondent in his cross examination stated that apart from 3 acres of horticultural land and wet land, he owns 8 acres of dry land and he cultivates pineapple, ginger and groundnuts. The fact that of respondent owning the horticultural and agricultural lands and cultivation of the same was not disputed in his cross examination - Taking into consideration the aforesaid aspects, the contentions of the petitioner regarding the lending capacity of the respondent is untenable. Therefore, this Court does not find any perversity in the finding of the Courts below about lending capacity of the respondent. Reg. issuance of cheque and liability - HELD THAT:- The cheque was not dishonoured for any variations in the signature. DW.1 in his cross examination did not assert that the signature on Ex.P1 was forged one. He only said he cannot say if that is forged one or genuine one. If at all there was any doubt about his signature, the best option was to seek reference of Ex.P1 to the opinion of the hand writing expert which he did not resort to for the reasons best known to him - Once it was held that the cheque pertains to the account of the petitioner and that was issued by him, the presumptions under Section 118 of NI Act to the effect that cheque was issued for consideration and the presumption under Section 139 of the NI Act that the cheque was issued for discharge of liability arise. The petitioner failed to rebut the said presumption by adducing cogent, consistent and acceptable evidence. Therefore, the Courts below were justified in holding that the cheque Ex.P1 was issued by petitioner towards discharge of his liability. Acceptance of affidavit evidence of the petitioner - HELD THAT:- The original proceedings were of the year 2002. The petitioner having submitted his evidence by way of affidavit voluntarily, now in this revision petition, for the first time after more than a decade is trying to claim that in accepting his affidavit, the trial Court has committed jurisdictional error. The said contention runs contrary to the judgment of the Supreme Court in Srinath's case referred supra. For the aforesaid reasons this Court does not find any illegality, impropriety and incorrectness in the order of conviction. Sentence - HELD THAT:- The trial Court has sentenced the petitioner to imprisonment of one year but has not imposed any fine. The cheque amount was ₹ 4 lakhs. The compensation awarded is ₹ 4 lakhs. The offence under Section 138 of NI Act is punishable with imprisonment upto 2 years or with fine extending to twice the amount of the cheque or both. The respondent has fought this litigation for about 18 years. In adjudication of this matter the state resources are also diverted. Therefore, non imposition of any fine was not just and appropriate - Having regard to the age of the petitioner the sentence of imprisonment can be modified to sentence of fine with default sentence. Therefore, the petition is partly allowed. The impugned order of conviction for the offence under Section 138 of NI Act is hereby confirmed - The order of sentence is modified as follows: The petitioner is sentenced to fine of ₹ 8 lakhs. In default to pay fine, the petitioner shall undergo simple imprisonment of 30 days. Out of the fine amount sum of ₹ 7,90,000/- shall be paid to the respondent as compensation and ₹ 10,000/- shall be remitted to the State - Petition allowed in part.
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