9911796707
TMI Blog2021 (1) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... victed the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and ordered simple imprisonment for a period of one year and directed the accused to pay a sum of Rs. 2,00,000/- as compensation to the complainant under Section 357(3) of Cr.PC., 2. The brief facts which are necessary for the disposal of the Revision Petition are as under: The complaint came to be filed u/s.200 Cr.PC., read with Section 138 of the Negotiable Instruments Act contending that during the month of April, 2009, for the family necessities, accused approached the complainant for a financial assistance of Rs. 1,15,000/-. Complainant advanced the same to the accused and on the same day, the accused had issued post dated cheque for a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.8, which is pertaining to examination of witnesses on behalf of the accused, he has answered that 'he would examine a witness'. The accused also got himself examined as DW-1 and produced the statement of accounts which were exhibited and marked as Ex.D1. 5. Learned Magistrate on cumulative consideration of the oral and documentary evidence on record, came to the conclusion that the accused has committed an offence u/s.138 of the Negotiable Instruments Act and connected him for the said offence and awarded the sentence as referred to supra. 6. Being aggrieved by the judgment of the learned Magistrate, the accused preferred an appeal on the file of the IV Additional District and Sessions Judge, Madhugiri in Criminal Appeal No.50 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In support of the contention, the learned counsel for the Revision Petitioner has relied on the judgment of this court in the case of B Krishna Reddy Vs. B.K. Somashekara Reddy reported in 2007 (2) DCR 391 which has been held as under: "Held: Negotiable Instruments Act declares that "any material alteration of negotiable instrument renders the same void as against any one who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties". If the endorsee were to make an alteration, the liability of the endorser is discharged. It is mandatory that in order to attract prosecution under Section 138 of the Negotiable Instrume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible to the naked eye. However, there is a signature underneath the said correction. In this regard, PW-1 was cross examined extensively. The defence taken by the accused is that while he was proceeding in a Car, he met with an accident, wherein he lost the cheques and one of those cheques have been mis-used by the complainant. In the cross examination of PW-1, he has answered that accused has obtained the loan in the month of April, 2009. In the complaint averments also, it has been clearly mentioned that accused borrowed money in the month of April, 2009. When such is the factual aspects, the alteration as to the date which has been found on Ex.P1 from 29.05.2008 to 29.05.2009, in the considered opinion of this court is properly explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the same in this Revision Petition there cannot be any dispute as to the principles of law enunciated in the judgments cited by the learned counsel for the Revision Petitioner. But the facts in the said case and the facts of the case on hand are altogether different and in the absence of any positive evidence placed by the accused, the finding recorded and the alteration found in Ex.P1 signed by accused is not a material alteration and therefore, the said decision, principles cited in the said case is not of much avail to the revision to seek an order of interference by this court. REGARDING POINT NO.2: 17. The Trial Court while passing the impugned judgment has passed conviction order sentencing the accused to undergo simple imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine of Rs. 5,000/- and out of the fine amount, but the Trial Court has not fined the accused and passed an order of imprisonment for one year. Though there is a serious legal flaw in such an evidence, the first Appellate Court unfortunately did not bestow its attention to correct the same. The Trial Court did not assign any reasons for ordering the imprisonment of one year while dealing with Point No.2. 20. It is well settled principle of law and requires no emphasis that assigning the reasons to reach a conclusion is a cine qua non. In fact, the reasons are heart beat of any judgment. This aspect of the matter is ignored by the first Appellate Court while confirming the order passed by the learned Magistrate. 21. Thus, in the considere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
