LINI K S Vs. STATE OF KERALA

JUDGEMENT

(1.) THE challenge in this Crl.R.P is against the conviction and sentence imposed on the revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments.

(2.) THE allegation in the complaint is that on 05.09.2005 the revision petitioner/accused had borrowed an amount of Rs.2,45,000/- from the complainant on the assurance that it will be returned within three months. But the accused failed to keep her words and on demand at the issuance of the complainant, the accused issued a cheque dated 20.12.2005 for an amount of Rs.2,45,000/-. When the said cheque presented for encashment the same was dis- honoured as there is no sufficient funds in the account maintained by the accused. According to the complainant in spite of the notice sent to the revision petitioner informing him regarding the dishonour of the cheque and demanding the repayment of the cheque amount, no money was paid and therefore, the petitioner has committed the offence punishable under Section 138 of the Negotiable Instruments Act. With the above allegation the complainant approached the petitioner to the Judicial First Class Magistrate Court, Mannarkkad wherein cognizance and institute ST No.569/2006. Subsequently, the case was transferred to Judicial First Class Magistrate Court-I, Ottappalam as per the order of Chief Judicial Magistrate, Palakkad and the case was re-numbered therein as CC No.1879/2008. Subsequently, the case was again transferred to the Judicial First Class Magistrate Court-II, Ottapalam the trial court wherein the case was re-numbered as ST.No.86/2008. During the trial of the case, the complainant himself as examined as PW1 and produced Ext.P1 to P5. From the side of the defence though no witness was examined, Ext.D1 is produced and marked. THE trial court after consideration of the entire facts and circumstances involved in this case and the evidence and materials on record, came to the conclusion that Ext.P1 cheque was issued towards the discharge of the liability that due to the complainant and thereby the accused has committed the offence under Section 138 of the NI Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment till the rising of the court and further directed to pay compensation of Rs.2,45,000/- to the complainant under Section 357(3) of Cr.P.C. THE default sentence is fixed as 15 days.

(3.) THE main contention advanced by the learned counsel for the petitioner is that connected with an offer of appointment in the shop of Tribal Welfare Society in favour of the complainant the accused issued a cheque in question which was misused by the complainant and connected with the said transaction the accused had already preferred a complaint before the Asst. Supdt. of Police, Agali. Thus, according to the learned counsel for the petitioner there was no transaction between the complainant and the revision petitioner as claimed by the complainant. In order to substantiate the above contention, learned counsel invited my attention to Ext.P1 cheque, wherein according to the learned counsel there is some interpolation with respect to the date and the cheque amount in figure shown in the cheque. On the basis of the above fact, the learned counsel submitted that there is variation in the deposition of the complaint and regarding the mode of execution of the cheque the complainant has no consistent case. I am unable to endorse the above contention and to interfere with the findings of the trial court as well as the appellate court. In this connection, it is relevant to note that except Ext.D1 pass book, no other evidence is produced by the defence to substantiate its contention. THE trial court as well as the appellate court after having considered the evidence on record which are in terms of the allegation of the complainant in the complaint, came to the conclusion that the complainant has established the case and succeeded in proving the offence under Section 138 of the NI Act.