Smt. Madhavi Latha vs Sri Pruthviraj Pande
2022 Latest Caselaw 10796 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 14TH DAY OF JULY 2022

                           BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

   CRIMINAL REVISION PETITION No.886 OF 2012

BETWEEN:

Smt.Madhavi Latha,
Wife of Sri Narasimhamurthy,
Aged about 32 years,
No.91, 17/18, Renukamba Temple
Street, Doddabommasandra,
Bangalore-560 097.                             .. Petitioner

 ( By Sri N.Venkatesh, Advocate )

AND:

Sri Pruthviraj Pande,
Son of Late K.S.Pande,
Aged about 49 years,
Residing at No.2577, 2nd Cross,
17th Main, HAL 2nd Stage,
Indiranagar,
Bangalore-560 008.                             .. Respondent

 ( By Sri Fayaz Sab B.G., Advocate
   For M/s. J.M.S. Law Associates )

      This Criminal Revision Petition is filed under Section 401
of Cr.P.C. praying to set aside both the judgments of the trial
Court in C.C.No.40638/2008 in the Court of the 14th Additional
Chief Metropolitan Magistrate, Mayo Hall, Bangalore, passed on
10.03.2011 and in Crl.Appeal No.25065/2011 before the Fast
Track Court-III, P.O. & Additional Sessions Judge, Mayo Hall
                                                       Crl.R.P.No.886/2012
                                   2


Unit, Bangalore, passed on 22.05.2012                 and    acquit     the
petitioner-accused in the interest of justice.

      This Criminal Revision Petition having been heard through
Physical Hearing/Video Conferencing Hearing and reserved for
orders on 06.07.2022, coming on for pronouncement this day,
the Court made the following:

                                ORDER

       The     present      petitioner      was         accused          in

C.C.No.40638/2018,         in     the   Court    of      the        learned

XIV     Addl.Chief      Metropolitan     Magistrate,        Bengaluru,

(hereinafter for brevity referred to as the "trial Court").

By its judgment dated 10.03.2011, the trial Court

convicted the accused for the offence punishable under

Section 138 of Negotiable Instruments Act, 1881

(hereinafter for brevity referred to as `N.I.Act') and was

sentenced accordingly.

2. The summary of the case of the complainant in the

trial Court was that the accused who was running a Beauty

Parlour under the name and style of M/s.Fascinations

Beauty Parlour, had availed a financial help of `3 lakhs

from the complainant on 05.01.2007, promising to repay

the loan together with interest at the rate of 18% p.a. Crl.R.P.No.886/2012

After the demand made by the complainant, the accused

issued a post-dated cheque bearing No.381881, dated

15.09.2008, for a sum of `3,94,500/-, drawn on

Corporation Bank, Indiranagar Branch, Bengaluru, in

favour of the complainant towards the principle amount

and accrued interest thereupon. The said cheque when

presented for its realisation by the complainant through his

Banker, the same came to be returned unpaid with the

Banker's endorsement "funds insufficient" in the account

of the accused. Thereafter, the complainant got issued a

legal notice to the accused through Registered Post

Acknowledgement Due and also under Certificate of

Posting demanding the cheque amount. In spite of service

of the notice, the accused did not pay the cheque amount,

which constrained the complainant to institute a criminal

case against the accused in the trial Court for the offence

punishable under Section 138 of N.I.Act.

3. Since the accused pleaded not guilty, charges were

framed against the accused for the alleged offences.

Crl.R.P.No.886/2012

4. The complainant in order to prove his case, got

examined himself as PW-1 and got marked ten documents

from Exs.P-1 to P-10. On behalf of the accused, the

accused got herself examined as DW-1 and one

Smt.Jayanthi Dakshayani as DW-2 and got marked

documents from Exs.D-1 to D-15 in the trial Court and

from Exs.D-16 to D-25 in the Sessions Judge's Court.

5. After hearing both side, the trial Court by its

impugned judgment dated 10.03.2011, convicted the

accused for the offence punishable under Section 138 of

N.I.Act and sentenced him accordingly.

6. Challenging the said order, the accused

preferred an appeal in Criminal Appeal No.25065/2011,

before the learned Addl.Sessions Judge and Presiding

Officer, Fast Track Court-III, Mayo Hall Unit, Bengaluru,

(hereinafter for brevity referred to as `Sessions Judge's

Court), which by its judgment dated 22.05.2012,

dismissed the appeal by confirming the judgment of

conviction passed by the trial Court. It is against these Crl.R.P.No.886/2012

judgments of conviction, the accused has preferred this

revision petition.

7. The respondent is being represented by his

learned counsel.

8. Records from the trial Court and Sessions

Judge's Court pertaining to the matter were called for and

the same are placed before the Court.

9. Heard the arguments of learned counsels from

both side. Perused the materials placed before this Court.

10. The only point that arises for my consideration

is,-

"Whether the impugned judgments suffer from perversity, illegality, impropriety warranting any interference at the hands of this Court".

11. The learned counsel for the petitioner in his brief

argument submitted that Passport at Ex.D-3 and Visa

Stamping therein go to show that the accused was not in

India as on the date of the alleged loan which is dated

05.01.2007. She had been to Germany and Crl.R.P.No.886/2012

returned only in February 2007, as such, the question of

she availing the loan of `3 lakhs from the complainant does

not arise. He further submits that the Letterheads and

cheque leafs pertaining to the Beauty Parlour were all

stolen, in which regard, a police complaint as per Ex.D-1

was also given.

He further submitted that the alleged cash receipt,

which is at Ex.P-1 bears the signature of the accused, but,

not at the appropriate place, hence, the said document

cannot be accepted. Learned counsel further submitted

that in Ex.P-2, it is stated that Smt.Dakshayini Jayanthi was

the authorised signatory. Therefore, Smt.Dakshayani

Jayanthi is the one who is running the business.

Learned counsel further submitted that the stop

payment was given to the Bank as per Ex.D-2 by the

accused. The complainant who has marital dispute with his

wife, has in order to settle the score, has made the accused

as a scapegoat in the matter. In that regard, the wife of Crl.R.P.No.886/2012

the complainant herself was examined as DW-2 on behalf

of the accused, who has supported the defence taken up by

the accused denying the alleged loan transaction. Stating

that the trial Court and the Sessions Judge's Court have not

appreciated these aspects in their proper perspective,

learned counsel prays to allow the petition as prayed for.

12. Per contra, learned counsel for the respondent in

his argument submitted that the alleged marital dispute

between the complainant and his wife is subsequent to the

loan transaction. Ex.D-16, which is the copy of the

application form for opening a Bank Account of the Beauty

Parlour shows that it is the petitioner/accused who is the

Proprietrix of the said Beauty Parlour, as such, she cannot

contend that she was not the owner of the Beauty Parlour

and that the said Beauty Parlour was being run by the

complainant and his wife.

Learned counsel also submitted that there is

contradiction in the evidence of accused as DW-1, who at

one place in her evidence has stated that the Beauty Crl.R.P.No.886/2012

Parlour was run by the complainant and his wife, however,

at the other place, she has stated that it was the

complainant alone who was running the Parlour and DW-2

was only assisting him. He also submitted that the alleged

lodging of the police complaint is proved to be false by

Ex.P-10, which is produced by none else than the

petitioner/accused herself. With this, he submitted that the

impugned judgments of conviction and order on sentence

does not warrant any interference at the hands of this

Court.

13. The complainant got himself examined as PW-1,

who in his examination-in-chief filed in the form of affidavit

evidence, has reiterated the contentions taken up by him in

his complaint. To show that accused has acknowledged the

receipt of the loan, he has produced a document shown to

be the cash receipt in the Letter-Head of M/s.Fascinations

which is said to be a Beauty Parlour. To show that he has

made demand for repayment of the loan amount not just

from the accused, but, also from one Smt.Dakshayani Crl.R.P.No.886/2012

Jayanthi (who is undisputedly the wife of the complainant),

he has shown a legal notice shown to have been sent by

him to them through his counsel on 10.04.2008 and got it

marked as Ex.P-2. He has also produced one more letter

dated 07.05.2008 at Ex.P-3 shown to have been written by

the accused asking him to present the cheque. He has

produced the original returned cheque, which is for a sum

of `3,94,500/- and drawn on Corporation Bank, Indiranagar

Branch, Bengaluru, in the name of the complainant and

dated 15.09.2008 at Ex.P-4 and the cheque returned memo

with the reason of "funds insufficient" at Ex.P-5. Stating

that he had sent a legal notice to the accused, both by

Registered Post Acknowledgement Due and under

Certificate of Posting, calling upon her to pay the cheque

amount, he has produced a copy of the legal notice at

Ex.P-6, the copy of Certificate of Posting at Ex.P-7,

Registered Post Acknowledgment cover at Ex.P-8 and

postal acknowledgement card at Ex.P-9. He has also

produced an endorsement shown to have been given to him Crl.R.P.No.886/2012

by Halasuru Police Station, Bengaluru, to the extent that

accused had not lodged any complaint and marked it at

Ex.P-10.

PW-1 was subjected to a detailed cross-examination

from the accused side. However, from the accused side, it

was not denied that cheque at Ex.P-4 was drawn by the

accused and the same came to be returned when presented

for its realisation for the reason of insufficiency of funds.

Though it was suggested to PW-1 in his cross-examination

that legal notice was not served upon the accused,

however, the witness has not admitted the same as true.

On the contrary, the postal receipt, Certificate of Posting

and postal acknowledgements at Exs.P-7 to P-10 were not

denied or disputed from the accused side. Admittedly,

even after the expiry of the period mentioned in the notice,

the accused has not paid the cheque amount demanded in

the notice. Hence, a presumption about the legally

enforceable debt in favour of the complainant forms under Crl.R.P.No.886/2012

Section 139 of N.I.Act. However, the said presumption is

rebuttable.

14. Regarding rebuttal of presumption formed in

favour of the complainant, learned counsel for the

petitioner relied upon a judgment of Hon'ble Apex Court in

Krishna Janardhan Bhat -vs- Dattatraya G. Hegde,

reported in AIR 2008 SC 1325, wherein the Hon'ble Apex

Court was pleased to hold with respect to Sections 138 and

139 of N.I.Act that, in order to prove the defence, the

accused is not required to step into the witness box. He

may discharge his burden on the basis of the materials

already brought on record. The question whether statutory

presumption was rebutted or not must be determined in

view of other evidences on record.

15. In the instant case, the petitioner apart from

taking her defence in the form of suggestions made to PW-

1 in his cross-examination, has got herself examined as

DW-1 and got examined her aunt by name Smt.Jayanthi

Dakshayani, who is also admittedly the wife of complainant, Crl.R.P.No.886/2012

as DW-2. Added to that, she has got marked documents

from Exs.D-1 to D-15 in the trial Court and in her appeal

in Criminal Appeal No.25065/2011, she got produced and

marked few more documents as Exs.D-16 to D-25.

However, whether the defence taken up by the accused

could able to rebut the presumption formed in favour of the

complainant has to be analysed at the appropriate place

hereafterwards.

16. Learned counsel for the petitioner also relied upon

the judgment of Hon'ble Apex Court in Rangappa -vs- Sri

Mohan, reported in [(2010) 11 SCC 441] and gave more

emphasis on the observations made by the Hon'ble Apex

Court in the said judgment with respect to Section 139 of

N.I.Act that the presumption mandated by Section 139

includes a presumption that there exists a legally

enforceable debt or liability, however, such presumption is

rebuttable in nature.

In the same judgment, in Paragraph-28, the Hon'ble

Apex Court was also pleased to observe that, when an Crl.R.P.No.886/2012

accused has to rebut the presumption under Section 139,

the standard of proof for doing so is that of "preponderance

of probabilities". Therefore, if the accused is able to raise a

probable defence which creates doubts about the existence

of a legally enforceable debt or liability, the prosecution can

fail. It was further observed in the said judgment that the

accused can rely on the materials submitted by the

complainant in order to raise such a defence and it is

conceivable that in some cases the accused may not need

to adduce evidence of his/her own.

17. It is after relying on these judgments, learned

counsel for the petitioner also relied upon one more

judgment of Hon'ble Apex Court in Vijay -vs- Laxman and

another, reported in [(2013) 3 SCC 86], wherein with

respect to Section 118(a) and 139 of N.I.Act, the Hon'ble

Apex Court was pleased to reiterate that standard of proof

required for rebutting the presumption under Section 118

and 139 of the N.I.Act is not as high as that required of the Crl.R.P.No.886/2012

prosecution and is rebuttable on the preponderance of

probabilities.

18. Learned counsel for the petitioner also relied upon

one more judgment of Hon'ble Apex Court in

Basalingappa -vs- Mudibasappa, reported in [(2019) 5

SCC 418], wherein the Hon'ble Apex Court with respect to

standard of proof for rebutting the presumption under

Section 139 of N.I. Act, was pleased to observe that, while

prosecution must establish its case beyond reasonable

doubt, accused to prove a defence must only meet

standard of preponderance of probabilities.

Citing these reported judgments, learned counsel for

the petitioner submitted that, in the instant case, the

accused (petitioner herein) has successfully rebutted the

presumption formed in favour of the complainant.

19. The accused (petitioner) has taken the defence of

total denial of the alleged loan transaction. It is her specific

defence that, as on the date of alleged loan, which was on Crl.R.P.No.886/2012

05.01.2007, she was not at all in India, as such, the

question of she availing any loan from the complainant

does not arise. It is her further defence that blank cheques

and letterheads were misused by the complainant who was

her maternal uncle, in which regard, she had lodged a

police complaint also. By making suggestion to PW-1 in his

cross-examination, she also forwarded one more defence

that she was only an employee in the Beauty Parlour run by

the wife of the complainant.

20. Through DW-2, she got stated that the

complainant had robbed the cheque books, letterheads etc.,

and has misused them against the accused. She also

ensured that DW-2 has further stated that it was the

complainant who was running the Beauty Parlour and DW-2

and accused were only assisting him. However, none of

these defences were admitted as true by the complainant.

The statements made by DW-1 and DW-2 in their

examination-in-chief were denied in the cross-examination

of the complainant made from the accused side. Therefore, Crl.R.P.No.886/2012

it is by weighing the evidence led by both side, it has to be

seen whether the accused (petitioner) could able to

successfully rebut the presumption formed in favour of the

complainant.

21. The first contention of the accused that as on the

date of the alleged loan transaction, she was not at all in

India and that she was in Germany is concerned, apart

from taking the said defence in her examination-in-chief,

the accused as DW-1, has also got produced and marked a

notorised copy of her Passport at Ex.D-3. It is referring to

a Visa Stamping made in the said Passport, wherein two

dates as 15.06.2006 and 31.05.2007 are mentioned,

learned counsel for the petitioner vehemently submitted

that the said Visa Stamping shows that, at the relevant

point of time, the petitioner was at Germany and that she

returned to India only on 10.02.2007 as could be seen in

Indian Immigration Stamping in the same Passport.

The said argument of learned counsel for the

petitioner that the Visa Stamping shows that from Crl.R.P.No.886/2012

15.06.2006, she was at Germany is not acceptable, for the

reason that, what stamping the learned counsel is

vehemently relying upon is a stamping regarding issuance

of Visa, which is dated 15.06.2006. It is not the stamping

for entry of the accused in Germany on the date

15.06.2006. Based upon the said Visa Stamping, which the

learned counsel for the petitioner is relying upon, when the

Visa holder enters a foreign country, a stamping regarding

entry would be generally made. That stamping would tell

as to on which date the Passport/Visa holder entered their

country.

It is also for the reason that, one more similar Visa

Stamping in the same Passport (Ex.D-3), which is for

Deutschland, can also be seen, wherein also, two dates are

mentioned as `from' and `untill' dates. But, it does not

mean that from the `from date' upto `untill' date, the

Visa holder was in the said country, because, even

according to the accused, it was not her case that between

those two dates, she was in Deutschland. If the date Crl.R.P.No.886/2012

mentioned in Visa Stamping is taken as the date of actual

stay of the Visa holder in the said country, then two Visa

Stamping in the Passport at Ex.D-3 overlaps in the dates,

more particularly, with the date 15.06.2006 upto the expiry

of Visa of Deutschland, which was in force until

28.07.2006. As such also, the argument of learned counsel

for the petitioner that the Visa Stamping at Ex.D-3 shows

that accused was at Germany on 05.01.2007 is not

acceptable.

22. Assuming for a moment that accused (petitioner)

was in Germany as on 05.01.2007, still, it has to be seen

that the case of the complainant throughout is not that on

the date 05.01.2007, the accused herself physically met the

complainant and collected a cash loan of `3 lakhs from him.

But, it is his case that, on 05.01.2007, the accused

received the loan amount through her authorised

signatory, who according to the complainant, was DW-2

Jayanthi Dakshayini, who is also the wife of the

complainant. It is in that regard, the complainant in Crl.R.P.No.886/2012

support of his oral evidence has produced and relied upon a

cash receipt at Ex.P-1. The said cash receipt is dated

05.01.2007 and is printed on the letterhead of

M/s.Fascinations Beauty Parlour. The said document is

shown to have been executed by none else than the

accused (petitioner), whose signature is marked at

Ex.P-1(a). The said cash receipt reads as below :

" We acknowledge the receipt of cash of Rs.3,00,000.00 (Rupees Three Lakhs only) from you and my Authorised Signatory at Bengaluru, Smt.Jayanthi Dakshayani has confirmed having received the cash."

The said letter is shown to have been executed by the

accused (petitioner) and addressed to the complainant.

Thus, the acknowledgement of the receipt of the loan is

shown to have been made by the accused in writing and

the loan amount is shown to have been received by DW-2

Jayanthi Dakshayini as an authorised signatory of the

accused. Though the said letter also shows that accused

was not residing at Bengaluru at that time, however, the Crl.R.P.No.886/2012

letter in unequivocal terms acknowledges the receipt of

loan amount from the complainant on 05.01.2007.

23. The accused as DW-1 has taken a defence in her

examination-in-chief that her aunt Jayanthi Dakshayini and

the complainant used to take her blank cheques and

letterheads of M/s.Fascinations Beauty Parlour from her

with her signatures and that the complainant has misused

the same. DW-2 Jayanthi Dakshayini also has stated that

as she and her husband were bank employees, they could

not involve in any business, as such, she used to take the

signatures of the accused, who was her niece, on blank

cheques and letterheads of M/s.Fascinations Beauty Parlour

and for business purpose, she had kept the cheque books

and letterheads in her bag, however, she has learnt that

they must have been stolen while she was travelling as

they were missing from her purse, in regard to which, they

lodged a police complaint for theft or missing on

28.07.2007. Stating so, from the accused side, the alleged

complaint copy was also marked at Ex.D-1.

Crl.R.P.No.886/2012

The said Ex.D-1 though mentions about loss of few

cheques, including the one at Ex.P-4, but, the said

complaint has not been registered in any police station. On

the contrary, Ex.P-10 produced by the complainant shows

that the very same Halasuru Police Station have given an

endorsement to the complainant under Right to Information

Act that, a verification of their station records go to show

that the complaint alleged to have been given by

Smt.Madhavi Latha has not been received in their station.

24. Therefore, it stands established that the complaint

alleged to have been given by the petitioner at Ex.D-1

either is not received by the Halasuru Police Station or no

crime was registered in the matter. In case, if the

complaint is received, but, no crime is registered, then, the

present petitioner (accused) ought to have taken

appropriate further action in accordance with law in the

matter, which she has not taken. Therefore, an attempt

made by the accused (petitioner herein) to rebut the

presumption formed in favour of the complainant through Crl.R.P.No.886/2012

her first defence of denying the loan and contending that

Ex.P-1 was bogus and her cheques and letterheads were

stolen by the complainant, could not be established or could

not even make out a case of probabilities also. Therefore,

the argument of learned counsel for the petitioner that the

letterheads and cheques at Ex.P-1 and P-4 were stolen by

the complainant is not acceptable.

25. Learned counsel for the petitioner also envisaged

a point in his argument that the signature of accused in the

cash receipt at Ex.P-1 since is almost near to the bottom of

the second page of the receipt, but, not above the rubber

stamp of the Beauty Parlour, thus, the same becomes

invalid. The said argument is also not acceptable for the reason

that, the signature of the Executant i.e., the accused at

Ex.P-1(a) is not in dispute. Merely because her signature is said

to be slightly below than the rubber stamp at the end of the

receipt itself would not make the said document either

suspicious or invalid.

Crl.R.P.No.886/2012

26. Learned counsel for the petitioner also submitted

that the `stop payment' request letter is produced at Ex.D-

2 and it is dated 29.07.2007. By that itself, it cannot be

inferred that the cheque at Ex.P-4 was not given by the

accused to the complainant since such a stop payment

letter, which is given much in advance than the date of the

cheque at Ex.P-4, was not to the notice or knowledge of the

complainant. There are all the possibilities of a person who

wants to avoid his liability under a cheque giving a stop

payment letter to his banker in advance, still, make use of

the same cheque for issuance to the person to whom he is

liable to pay money. However, the said possibility cannot

be generalised and each case has to be analysed on its own

merits after taking facts and circumstances into

consideration.

In the instant case, the cash receipt at Ex.P-1,

admission of the drawership of cheque at Ex.P-4, the

un-disputed signatures of the accused on these

documents, moreover the endorsement at Ex.P-10 to the Crl.R.P.No.886/2012

effect that the police had not received any complaint from

the present petitioner, would all prevent from accepting the

defence of the accused that the cheques and letterheads

were stolen and misused by the complainant, at least, to

the extent of creating a doubt in the case of the

complainant.

27. The evidence of DW-2 that she was carrying the

blank cheques and letterheads duly signed by the accused

herein and that those letterheads and cheques were lost,

also creates a doubt to accept it on its face value. There is

no explanation as to why DW-2 should carry blank cheques

and letterhead of M/s.Fascinations Beauty Parlour in her

bag always and everywhere. If according to her, it was her

husband i.e., the complainant was running the Beauty

Parlour, then, there was no necessity for her to carry all

these documents. On the other hand, it could have been

her husband i.e., the complainant who should have carried

those documents, provided carrying them with him was

required for the purpose of business. No where DW-2 has Crl.R.P.No.886/2012

stated that it was necessitated for her to carry signed blank

cheques and letterheads wherever she goes. In such an

event, herself being a responsible official, working in a

Bank, is aware of the risk of carrying blank cheques, but,

duly signed and blank letterheads with signatures.

Further, admittedly when she herself and complainant

were both being officials working in State Bank of India,

they were aware that they cannot run any business,

including Beauty Parlour. Thus, she cannot say that they

violated the law and were still running the business, in

which regard, they were carrying blank documents, but,

duly executed by the accused.

28. Added to the above, the accused herself has

produced additional documents before the Sessions Judge's

Court in the Criminal Appeal, among which Ex.D-16, which

is an attested true copy issued by the Corporation Bank,

HAL II Stage Branch, Bengaluru, go to show that the Bank

Account, from which the cheque at Ex.P-4 was issued in

their branch, was opened by the accused herself, Crl.R.P.No.886/2012

representing herself as the Proprietrix of M/s.Fascinations

Beauty Parlour. The true copies of the encashed cheques,

which are at Exs.D-17 to D-19 further shows that it is the

accused who has signed three cheques as drawer on behalf

of the establishment M/s.Fascinations Beauty Parlour. The

Bank Account statements, which are from Exs.D-20 to D-23

shows that the bank account stands in the name of

M/s.Fascinations. From those documents, it becomes

further clear that, it is the present accused herself who was

operating the bank account and she had opened the bank

account as a Proprietrix of M/s.Fascinations. Hence, she

cannot contend that it was the complainant and DW-2 who

were the owners of M/s.Fascinations Beauty Parlour and

that she was only working there as an employee on a

monthly salary of `5,000/- per month. Even the bank

statements at Exs.D-20, D-21, D-22 and D-23 also does

not show the payment of any salary at `5,000/- to the

accused. Therefore, her contention that she was working Crl.R.P.No.886/2012

as an employee in the said Beauty Parlour is not

acceptable.

29. Lastly, the petitioner (accused) has taken a

contention that there has arisen a matrimonial dispute

between the complainant and DW-2, who are the husband

and wife. In that case, to settle their dispute, the

complainant has made her (petitioner) as a scapegoat.

In that connection, the accused has produced certified

copies of the order sheet and other proceedings in

Matrimonial Case No.1535/2007 and other litigations

between the complainant and DW-2 from Exs.D-4 to D-15.

A perusal of the same would go to show that matrimonial

case was filed on 07.07.2007, whereas, the alleged loan

transaction as per the complainant was six months prior to

that, which was on 05.01.2007. Furthermore, there is no

reason forthcoming from the accused side as to in an

alleged dispute between the complainant and his wife, why

should the present accused (petitioner herein) should be

made as a scapegoat. It is not her case that she was Crl.R.P.No.886/2012

taking on the side of DW-2, the wife of the complainant, as

such, she was made as a scapegoat. Therefore, without

there being any material to believe that the present

petitioner (accused) was made as a scapegoat in the

alleged marital dispute between the complainant and his

wife, a mere defence taken by the accused on those lines

is not sufficient to rebut the presumption formed under

Section 139 of N.I.Act in favour of the complainant.

30. Thus, the complainant apart from his oral

evidence, has also produced documentary evidence to show

that the accused was liable to pay him a legally

enforceable debt, as such, she had issued the cheque at

Ex.P-4 and the said cheque came to be dishonoured when

presented for realisation. On the other hand, the accused

though led her oral evidence and examined DW-2 and

produced documents from Exs.D-1 to D-25, still, could not

able to rebut the presumption formed in favour of the

complainant.

Crl.R.P.No.886/2012

31. It is after analysing the evidence placed before it

in their proper perspective, the trial Court rightly convicted

the accused for the offence punishable under Section 138

of N.I.Act and the same was after due re-appreciation of

the entire materials, further confirmed by the Sessions

Judge's Court. Hence, I do not find any perversity,

illegality or error in the impugned judgments warranting

any interference at the hands of this Court.

32. It is the sentencing policy that the sentence ordered

should not be either exorbitant nor for name sake for the

proven guilt. It must be proportionate to the gravity of the guilt

for which the accused is found guilty of.

In instant case, for the proven guilt for the offence

punishable under Section 138 of N.I.Act, the trial Court

sentenced the petitioner/accused to pay a total fine of

`4,50,000/- and in default of payment of fine, to undergo

simple imprisonment for a period of two years. The said

order on sentence, which is mainly imposing a fine of a Crl.R.P.No.886/2012

reasonable amount only, but, not of a compulsory

sentence of imprisonment, I do not think the sentence is

excess or exorbitant or disproportionate to the gravity of

the proven guilt. Hence, I do not find any reason even to

interfere in the order on sentence under challenge.

33. Accordingly, I proceed to pass the following

order:

ORDER

The Criminal Revision Petition is dismissed as

devoid of merits.

Registry to transmit a copy of this order to both the

trial Court as also the Sessions Judge's Court along with

their respective records forthwith.

Sd/-

JUDGE

bk/