P GOPALKUMAR Vs. B ANIL KUMAR

JUDGEMENT

(1.) The revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', concurrently, by the two inferior courts. The learned Magistrate, on his conviction, had sentenced him to undergo simple imprisonment for three months and to pay a sum of Rs. 3 lakhs as compensation and in default to undergo simple imprisonment for three months. Confirming the conviction, in appeal, the learned Sessions Judge modified the sentence reducing the substantive term of imprisonment to one day, till the rising of the court, retaining the sum of compensation, but, converting it to one of fine, reducing the default term of imprisonment to two months. Fine amount, if realised, was directed to be paid as compensation to the complainant. Feeling aggrieved, the accused has preferred this revision. Notice given, the 1st respondent/complainant has entered appearance. I heard the counsel on both sides. The main thrust of attack pressed into service by the learned counsel for the petitioner/accused, to assail his conviction concurrently rendered by the two inferior courts, is that the challenge against the execution of Ext.P1 cheque, and, also the denial of the transaction with the complainant over that instrument, was not appreciated and considered in accordance with the settled principles of law. The defence canvassed by the accused that Ext.P1 cheque in blank form with signature alone was handed over to the complainant in relation to a totally different transaction, in respect of which oral and documentary evidence was placed, was discarded by the court below overlooking that defence version need be shown only as probable and it need not be proved with meticulous precision for its acceptance, according to the counsel. The application moved by the accused before the appellate court permitting him to lead additional evidence to prove the documents already tendered, and also to examine one more witness, was not considered nor any order passed on such application before entering into a decision on the merits of the appeal and that has caused great prejudice and denial of justice to the accused, is the submission of the counsel. The learned counsel relied on Narayana Menon v. State of Kerala, 2006 3 KerLT 404, Krishna Janardhan Bhat v. Dattatraya Hegde,2000 1 KerLT 425 Kumar Exports v. Sharma Carpets, 2009 1 KerLT 197 and Padmanabhan v.Vasudevan Namboodiri, 2010 3 KerLT 216 to support the challenges raised that where execution of the cheque is denied it has to be proved, to draw the presumptions covered by the Statute, and, also, that the burden of proof cast upon the accused to rebut such presumptions, and also the defence, if any, raised even if it is shown that the cheque was handed over by him, has to be tested on the preponderance of probabilities. The learned counsel has also drawn my attention to the decision in Rangappa v. Mohan, 2010 2 KerLT 682 wherein some of the observations made in Krishna Janardhan Bhat's case (cited supra) have been found to be not correct, submitting that the ratio of the decision in Krishna Janardhan Bhat's case (cited supra) that the question as to whether the presumption stood rebutted or not has to be determined keeping in view the other evidence on record still remain undisturbed and intact. Both the courts below have not appreciated the evidence tendered in the case, more particularly, the defence evidence in examining whether 'the presumptions stood rebutted especially where the execution of the cheque which was disputed was not established, and as such, the drawing of the presumption to sustain the complainant's case was impermissible, is the submission of the counsel. Conviction of the accused is, therefore, patently erroneous and liable to be set aside, submits the counsel.

(2.) Per contra, the learned counsel appearing for the 1st respondent/complainant pointing out the limited scope of exercise of revisional jurisdiction in examining the correctness, propriety and legality over a finding of guilt concurrently rendered by two inferior courts, submitted that there is no infirmity, leave alone, any illegality over the conviction entered against the accused for the offence imputed, which, according to the counsel, is fully supported by unimpeachable legal evidence. Not only that no reply was sent to the statutory notice issued on dishonour of the cheque, defence canvassed belatedly in trial disputing the execution of the cheque and also the transaction with the complainant over that instrument setting up a story that it was only a security for discharging liability to another, that too, under a transaction where there was joint liability of both the accused in the complaint, was shown to be so improper and unworthy of any defence, and it was rightly and correctly turned down by the courts below, according to the counsel. There is also no merit that opportunity was denied to lead additional evidence by the appellate court especially in a case of this nature where the defence canvassed itself was shown to be devoid of any merit, submits the counsel. Conviction entered against the accused and also the sentence as modified by the learned Sessions Judge, both of them, do not suffer from any infirmity and there is no merit in the appeal, is the further submission of the counsel urging for dismissal of the revision.

(3.) The complainant's case was that a sum of Rs. 1 lakh was initially provided to accused as a loan, and out of which Rs. 25,000/- was given by cheque. On the request of the accused for financial assistance, later, the complainant availed loan from a bank for Rs. 2 lakhs and that amount was also handed over to him. To discharge the outstanding liability on the loans availed, the accused issued Ext.P1 cheque for Rs. 3 lakhs, was his case. In evidence, he also stated that to meet the financial needs of the accused, along with the accused, he had approached the Bank manager. Financial assistance from the bank to the accused was declined since he was not an account holder and also not a person hailing within the local area covered by that bank. In such circumstances, the complainant applied for a loan availed Rs. 2 lakhs and that amount was also paid to the accused, was his case. The case so canvassed by the complainant at least to the extent that he had approached the bank with the accused to avail a loan for him is supported by the evidence of the Bank manager, examined by the accused as one of his witnesses, DW1. Why the loan requested for by the accused could not be provided was also spoken to by the Bank manager. The loan was availed according to the complainant on a specific understanding that it would be discharged by the accused in 25 instalments without default. After making the first instalment, the loan repayment was defaulted by the accused, is the further case of the complainant. Ext.P1 cheque was issued by the accused voluntarily towards the sum covered by the loans obtained from him, and when the instalment payment defaulted, he was constrained to present the cheque, and on such presentation, it got dishonoured, according to the complainant. The accused had set up a rival version that he and the complainant were office bearers of an Association, and to discharge urgent financial commitments of that Association, a sum of Rs. 1 lakh was obtained from DW3 issuing him a cheque of the Association. That cheque was got dishonoured on presentation. Complainant was in need of money to purchase the property. For that purpose and also to discharge the liability of DW3, which was outstanding against both of them, a sum of Rs. 2 lakhs was taken as loan from the bank, and to honour the commitment to discharge his liability for clearing off the debt due to DW3, he had issued a blank signed cheque to the complainant. He also stood as a surety to the loan transaction. The above version of the accused was sought, to be proved by examining DW3 apart from examining himself as DW2 in the case. Ext.D3 statement of account of DW3 showing that previously a cheque issued to him from the Association, in which the complainant and accused were office bearers, was dishonoured on presentation, has also been pressed into service to show that the version presented by him was probable and acceptable. The learned Magistrate, after appreciating the materials on record, found the case of the complainant, trustworthy, and the defence version projected by the accused, unworthy of any merit. The learned Sessions Judge, after reappraisal of the evidence, has concurred with the view so formed by the learned Magistrate to sustain the finding of guilt against the accused for the offence imputed.