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TMI Blog2018 (10) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.10.2008. Since the accused has not paid the amount mentioned in the statutory notice nor sent reply to the said notice. Therefore, he filed a complaint before the Magistrate for the offence under Section 138 of Negotiable Instruments Act, r/w Section 200 and 357 of Cr.P.C. 2.In order to prove the case of the complainant before the Magistrate, he himself was examined as P.W.1 and five documents were marked on his behalf. The incriminating circumstances which put before the accused, he denied the evidence of complaint as false and he opted for examining witness on his behalf. On the side of defence two witnesses were examined and 6 documents were marked. 3.The learned Magistrate after completion of the trial, heard the case on either sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner/accused would submit that the learned Additional District Judge has not passed any speaking order and Courts below failed to consider that the complainant has not proved the alleged loan transaction and borrowal of Rs. 1 lakh by the respondent. The complainant has not produced any documentary proof, the alleged transaction of Rs. 1 lakh was advanced to the accused on a particular date. The complaint has not proved the case in the manner known to law, the complainant has not produced any evidence showing that the cheque was issued only for legally enforceable liability. In the absence of any such documentary proof, showing loan transaction between the complainant and respondent, the judgment of the Courts below are perver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused has not rebutted the statutory presumption and convicted the accused and passed the sentence. 10.However, the learned counsel for the revision petitioner/complainant in Crl.R.C.No.32/2013 filed the revision as against the conviction and sentence passed by the trial Court for imposing fine of Rs. 3,000/-, which warrants interference by this Court. Therefore, the sentence of 3 months simple imprisonment is liable to be set aside and pass enhancement of the sentence and fine amount and the same may be enhanced equal to that of the cheque amount. 11.Heard the rival submissions made on either side and perused the records. 12.It is the case of the complainant that the petitioner borrowed a sum of Rs. 1 lakh from the complainant on 01. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption but the respondent-accused has not rebutted the presumption in the manner known to law. Therefore, there is no perversity in the judgment of both the Courts below. 14.On a careful perusal of the records reveals that the complainant has proved that the accused borrowed a sum of Rs. 1 lakh and issued a cheque on 01.02.2008, when he presented, the cheque was returned. Therefore, within 15 days from the statutory period, the accused failed to pay the amount. Therefore, he committed the offence and Courts below found that the complainant has proved, the execution of cheque and drew the legal presumption. 15.Whereas, the accused has stated that the complainant has not proved, the loan transaction between both the parties and he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not find any perversity in the order passed by both the Courts below. Therefore, the criminal revision in Crl.R.C.No.1430/2013 filed by the accused is dismissed. At the same time partly allowed the criminal revision in Crl.R.C.No.32/2013 for enhancement of the fine amount. Once the Courts below found that the cheque issued by the accused is legally enforceable debt, the fine imposed by the Courts below should have been equal to twice the cheque amount. Therefore, the order passed by the Courts below with regard to conviction and sentence is hereby confirmed and modified the fine amount to Rs. 2 lakhs instead of Rs. 3,000/-. 18.The accused is directed to deposit the fine amount of Rs. 2 lakhs before the trial Court within a period of six m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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