M CHINNAYAN NADAR Vs. E MOHANAN

JUDGEMENT

(1.) THE accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court.

(2.) THE case of the first respondent/complainant against the revision petitioner/accused is that towards the discharge of the liability due to the complainant, the accused issued two cheques Ext.P1 dated 15.8.2002 for a sum of `.50,000/- and Ext.P1(a) dated 17.8.2002 for a sum of `.80,000/- which, when presented for encashment, were dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amounts, even though he was requested for the same by issuing a statutory notice. With the said allegation, initially the complainant approached the Additional Chief Judicial Magistrate Court, Thiruvananthapuram wherein S.T.No.375 of 2003 was instituted on taking cognizance for the offence under Section 138 of the N.I.Act. Subsequently, it was made over to the Judicial First Class Magistrate Court-VI, Thiruvananthapuram wherein the case is renumbered as S.T.No. 127 of 2006. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P7 and the oral evidence of himself as PW1. From the side of the defence, DWs.1 and 2 were examined, but no documentary evidence was produced. On the basis of the available materials and evidence on record, the trial court has found that the cheques in question were issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus, accordingly, the court held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for two months and also directed to pay an amount of `.1,30,000/- as compensation to the complainant under Section 357(3) of the Cr.P.C.and the default sentence is fixed as one month simple imprisonment.

(3.) LEARNED counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to establish the execution and issuance of the cheque and the transaction claimed by him. According to the learned counsel, the trial court as well as the appellate court have miserably failed to consider those aspects and came to a wrong conclusion that the revision petitioner is guilty under Section 138 of the N.I.Act. Reiterating the contention taken by the accused during the trial and in the appellate stage, the learned counsel submitted that absolutely, there was no transaction between the first respondent/ the complainant and the revision petitioner and the cheques in question were forcibly taken from the possession of the revision petitioner and the above defence is not properly appreciated by the courts below. According to the learned counsel, the accused succeeded in establishing his defence by adducing evidence through the depositions of DWs.1 and 2 and also through the evidence brought during the cross-examination of PW1. LEARNED counsel has pointed out that regarding the execution of the cheques, issuance of the same and the transaction, absolutely there are no allegations and materials either in the lawyer notice or in the complaint and even PW1 failed to state anything regarding those aspects during his cross-examination. LEARNED counsel also pointed out that a casual perusal of Exts.P1 and P1(a) would show that the endorsements contained therein are not that of the revision petitioner. These aspects were also omitted to be considered by the courts below. Thus, according to the learned counsel, the revision petitioner is entitled to get an acquittal.