V P PRASAD Vs. SUBHAGINI

JUDGEMENT

(1.) THE revision petitioner is the accused in C.C.No.786/1997 on the file of the Judicial First Class Magistrate Court-IV, Kozhikode. He was convicted and sentenced to undergo simple imprisonment for one year for the offence under Section 138 of the Negotiable Instruments Act by the learned Magistrate as per judgment dated 5/9/2002 in C.C.No.786/1997. THE petitioner challenged the conviction and sentence by preferring appeal before the Sessions Court, Kozhikode. THE learned Additional Sessions Judge as per judgment dated 27/1/2005 in Crl.Appeal No.449/2002 confirmed the conviction and modified the sentence to imprisonment till rising of court and to pay Rupees two lakhs as compensation to the first respondent and in default to undergo simple imprisonment for four months. THE concurrent finding of guilty and conviction of the revision petitioner for the offence under Section 138 of the Negotiable Instruments Act and the sentence imposed thereunder has been challenged by the revision petitioner/accused before this Court by filing this revision petition.

(2.) HEARD the learned counsel for the revision petitioner, the learned counsel for the first respondent and the learned Public Prosecutor.

(3.) THE revision petitioner would contend that the courts below did not properly appreciated the evidence and it should have been found that Ext.P1 cheque was not issued towards repayment of any amount but only as security for some loan transaction between the accused and the original complainant. According to the revision petitioner, two blank cheques were given by him as security for the amount advanced by the original complainant and there was no legally enforceable debt between the complainant and the accused as the accused had already discharged his liability to the complainant. It is also contended that no proper notice under Section 138(b) proviso was issued to the revision petitioner and the alleged notice was returned as unclaimed, but the postman who served the intimation was not examined to prove that it was issued at the address of the accused. So the service of notice was also disputed by the accused. Thus the defence case was that the complainant foisted a false case against the accused by misutilising the blank cheques given by him as security after making material alterations therein for the amounts borrowed by the revision petitioner which had been returned to the complainant and there was no legally enforceable debt. To substantiate this contention, the revision petitioner/accused did not enter into the witness box and was not examined. THE only documentary evidence produced on the side of the revision petitioner was Ext.D1 petition dated 24/12/1996 which was preferred by DW1, the father of PW1, to the Commissioner of Police, Calicut City wherein it was stated that the revision petitioner had borrowed Rs. 3 lakhs from his eldest son-in-law, I.C.Vijayan, the original complainant and repaid only Rs.50,000/- promising to repay the balance amount of Rs.2,50,000/-(two lakhs fifty thousand). THEreafter, the revision petitioner/accused in this case had absconded and it was prayed in Ext. D1 to take necessary action against the revision petitioner. This document,Ext.D1, was relied on by the accused for the purpose of proving his defence that it was mentioned in that complaint that some cheques were furnished by the accused as security towards the loan transaction between the accused and the original complainant. But Ext.D1 was preferred on 24/12/1996 by the father-in-law of the complainant at a time when his daughter, PW1 along with her husband,original complainant,were residing in a separate residence and that petition Ext.D1 was subsequently withdrawn on 5/2/1997 by DW1 himself as revealed from the oral evidence and that too, during the lifetime of the original complainant who died only on 5/9/1997. It has come out from the evidence of PW1 that the original complainant had not authorised her father,DW1 to file Ext.D1 complaint and that DW1 at that time was not in good terms with his son-in-law as revealed from Ext.D1 itself. On going through the oral evidence of DW1 and Ext.D1, it was correctly found by the trial court that the defence failed to establish that Ext.D1 complaint was with respect to the transaction covered under Ext.P1 cheque. THE evidence adduced by PW1, the wife of the original complainant who was impleaded in the present case after the death of the original complaint has proved that Ext.P1 cheque was issued to the original complainant by the revision petitioner who did not pay the amount covered under that cheque even after demand and thereby committed the offence under Section 138 of the N.I.Act.