K BABU Vs. P K CHANDRAN

JUDGEMENT

(1.) THE challenge in this revision petition, which preferred by the accused in a prosecution for the offence punishable under Section 138 of the NI Act, is against the conviction and sentence imposed on him by the courts below.

(2.) I have heard Sri.Sajan Varghese, learned counsel appearing for the revision petitioner and I have also perused the judgments of the trial court as well as the appellate court.

(3.) ACCORDING to the learned counsel for the petitioner, the complainant has specifically stated about the three occasions, through which the amount was obtained by the accused from the complainant. It is true that while mentioning the cause of action to attract the jurisdiction of the court, the complainant has stated that the amount was given at Big Bazar in Palakkad. It is also a fact that during the cross examination, after changing his version that contained in the complainant, he has stated that on two occasions the amount was obtained from the house of the complainant. The trial court as well as the appellate court after having consider the entire facts and circumstances involved in this case and the evidence that include the documentary evidence, came into the conclusion that those discrepancies are minor in nature which will not sufficient to hold that the case of the complainant is false or baseless. ACCORDING to the complainant the cheque in question issued by the accused towards the discharge of the liability that due to the complainant. The above averments are in terms of Section 138 of the NI Act. It is also brought on record that an amount of Rs.2,06,800/- was transferred to the account of the accused from the bank account of the complainant. The learned Magistrate has elaborately discussed the transaction in paragraph 14 of the trial court judgment. Thus, going by the above materials and as observed by the learned Magistrate, fact emerged is that the accused has received money from the complainant. As I indicated earlier, the complainant as well as the accused are relatives and partners and the documentary evidence would also show the transaction. If that be so, according to me, it is for the accused to give a convincing and plausible explanation as to how the cheque in question reached in the hands of the complainant, because the complainant, through his oral evidence as well as the documentary evidence has established a prima facie case regarding the transaction and the liability. But no evidence is adduced by the accused to discharge his burden in rebutting the presumption. In the absence of any explanation, supported by convincing explanation as to how the cheque in question reached in the hands of the complainant, a mere explanation that the accused and complainant were partners and thus, the cheque reached in the hands of the complainant are not sufficient to hold that the accused has discharged his burden. In the light of the above facts and circumstances, I find no reason to interfere with the concurrent findings of the trial court as well as the appellate court. So the conviction and sentence recorded by the trial court as well as the appellate court is confirmed.