UNNIKRISHNAN VAYALAKKARA Vs. K NIRMALA

JUDGEMENT

(1.) THE accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below.

(2.) THE case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.40,000/- and towards the discharge of the said liability, the accused issued a cheque dated 11.9.2006 for a sum of Rs.40,000/-, which when presented for encashment dishonoured, as there was no sufficient fund in the account maintained by the accused and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Court of Special Judl. First Class Magistrate (Marad cases)-Kozhikode, by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted S.T.No.100/07. During the trial of the case, PW1, the complainant herself was examined from the side of the complainant and Exts.P1 to P5 were marked. No evidence either oral or documentary adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for 1 month and also directed the revision petitioner to pay a sum of Rs.40,000/- to the complainant as compensation u/s.357(3) of Cr.P.C., failing which the revision petitioner was directed to undergo simple imprisonment for 1 month.

(3.) THE learned counsel for the revision petitioner vehemently argued that the revision petitioner has succeeded in establishing the probable case in terms of his defence and thereby rebutted the presumption, but the trial court as well as the appellate court miserably failed to consider the defence version. In support of the above submission, the learned counsel pointed out that the specific case set up by the defence is to the effect that, the revision petitioner has obtained a sum of Rs.20,000/- as hand loan from the brother of the complainant and at the time of receiving the said amount, two cheques were issued and the brother of the complainant has instituted S.T.No.1355/06 against the revision petitioner, which case was subsequently withdrawn on 31.12.2007 on settlement of the dispute. According to the learned counsel, the present case is instituted at the instance of the brother of the complainant by misusing the other cheque which entrusted with him. In support of the submission made by the learned counsel, he had heavily relied upon the decision of the Apex court reported in Kumar Exports Vs. Sharma Carpets (2009 (2) SCC 513).