ABDUL HAMID MIR Vs. TARIQ AHMAD KHAN

JUDGEMENT

(1.) Petitioner has suffered conviction for commission of offence under Section 138 of Negotiable Instrument Act(hereinafter for short referred to as the N. I. Act) which has been maintained by the Appellate Court (Court of Additional Sessions Judge, Anantnag). Aggrieved whereof, instant petition under Section 561-A Cr. P. C has been filed. BACKGROUND OF THE CASE:

(2.) Learned counsel for the petitioner projected that miscarriage of justice in view of two impugned judgments is quite apparent and non-application of mind in passing the judgment impugned is also clear. Buttressing this contention, would submit that the petitioner, in fact, had borrowed an amount of Rs.12/ lacs from the respondent, which contention is belied by the petitioner himself because in the proceedings recorded by the trial court after the issue of process, issue of two cheques, bouncing thereof and service of notice of demand is not denied by the petitioner. Instead petitioner had sought time for paying the amount back to the respondent. Even he had added that, in fact, he had obtained a loan of Rs.12,70,000/ from the respondent out of which he had already paid Rs.5/ lacs, so according to him Rs.7,70,000/ were outstanding. The issue of two cheques, bouncing thereof and the position that the petitioner had borrowed money from the respondent is clearly admitted by the petitioner before the trial Magistrate.

(3.) Learned counsel for the petitioner would contend that Section 17 of the Evidence Act has not been followed while recording confessional statement of the petitioner. The submission is misplaced. There was no requirement of following Section 17 of the Evidence Act. Chapter XX of the Cr. P. C has to be followed while dealing with complaints under Section 138 of N. I. Act. The lucid language of Section 242 Cr. P. C suggests that when the accused appears or is brought before the Magistrate, the particulars of the offences are to be stated to him. Then he has to be given chance to show cause as to why he should not be convicted. Learned Magistrate had granted time to the petitioner for settlement which he has not availed. Then following the mandate of Section 242 Cr. P. C, learned Magistrate has explained the particulars of offence to the petitioner which he has not denied. Learned Magistrate, under Section 242 Cr. P. C, has specifically explained to the petitioner the allegation that he has issued two cheques bearing Nos.511792 and 511791 for an amount of Rs.4,50,000/ each to the complainant which could not be encashed from the concerned bank,. The Bank has issued a memo regarding insufficiency of amount in the account, thereafter a notice has been served upon him, still he did not pay the amount, therefore, for default in making the payment, why he should not be punished. The petitioner has specifically answered as under: