TMI Blog2022 (4) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Validity of signatures on the cheque - HELD THAT:- 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 in this regard, even he has not mentioned which number cheques are lost. So this defence appears to be only for defence sake and there is no merit in it. On the other hand, it is evident that both petitioner and respondent were business persons - There is nothing in defence evidence to show that the complainant case is not true. The defence evidence will not help the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ₹ 1,90,000/- and out of fine amount, a sum of ₹ 1,85,000/- is ordered to be paid to complainant as compensation and ₹ 5,000/- is ordered to be remitted to the State. Aggrieved by the same, accused preferred an appeal before the District and Sessions Court, Uttara Kannada, Karwar sitting at Sirsi in Crl.A.No.5022/2019, which came to be dismissed on 23.03.2021, aggrieved by the same this revision petition is filed. 5. Heard the leaned counsel for petitioner Sri.Santosh B.Mane. Respondent though served unrepresented. 6. Sri.Santosh B.Mane, learned counsel for petitioner argued that petitioner has not complied the necessary ingredients for discharge of legally recoverable debt. Under such circumstances, petition itself is not maintainable. In this regard, he relied on the decision of co-ordinate bench of this Court in Crl.P.No.1387/2011 dated 06.07.2018 in the case of R.Parimala Bai Vs. Bhaskar Narasimhaiah. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new 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. He has got Diploma certificate. He has also stated that he will get ₹ 2 to 2 lakhs income per year. He has admitted that he has not filed any incometax returns. It is also stated that he has borrowed amount from his sister and her husband and along with his amount he has given the cheque amount to accused, as accused stated that he was in urgent need of money. He has stated that he has no documents to show that he has borrowed amount. This suggestion of the cross examination shows that the accused has not denied that petitioner is doing electrical contract work. It is also not denied that he had income of. ₹ 2 to 2 lakhs income per year and kept the money. It is also not denied that he has borrowed some amount from his sister and her husband. So Except some suggestion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in this regard, even he has not mentioned which number cheques are lost. So this defence appears to be only for defence sake and there is no merit in it. On the other hand, it is evident that both petitioner and respondent were business persons. There is nothing in defence evidence to show that the complainant case is not true. The defence evidence will not help the accused in any way. 15. It is evident that Ex.P.1 cheque is admittedly belongs to the account of accused. The signature on cheque is also admitted by the accused. The complainant has issued statutory notice which is served on the accused and accused has given reply. Under section 118 and 139 of the Negotiable Instruments Act, 1881, there is a presumption in favour of holder of the cheque. In this rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 returned vide Exs.P.10 to P.13. Immediately, upon return of the cheques at Exs. P.6 to P.9, demand notice vide Ex.P.14 was sent, to which there is a reply as per Ex.P.17. It can be seen from Ex. P.17, that the petitioner sought time to pay the amount payable under the cheques i.e., Exs. P.6 to P.9. Since the amount was not paid, complaint under Section 200 of the Criminal Procedure Code. 1973 for the offence under Section 138 read with Section 142 of the Act was filed. 6. Complainant deposed as P.W.1. Nothing material has been elicited in the evidence of P.W.1 to hold that the claim made by her based on Exs. P.6 to P.9, P.10 to P.13 and P.14 is not tenable. In a complaint under Section 200 of Cr.P.C. for the offence under Section 139 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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