K H ASHRAF Vs. C RAJKUMAR

JUDGEMENT

(1.) THIS revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act (for short 'the Act').

(2.) THE disputed cheque, Ext.P1 is for an amount of Rs. One lakh which is dated 5/8/1997. THE petitioner now faces a sentence of imprisonment for three months and to pay an amount of Rs.35,000/- as compensation. THE signature in the cheque is admitted. THE complainant himself was examined as PW1 and marked Exts.P1 to P7. THE accused examined himself as DW3 and two other witnesses were examined as DWs.1 and 2. THE only contention that was raised was that the cheque was not issued for the due discharge of any legally enforceable debt/liability. It was issued as a blank signed cheque and as a security to DW1, the brother-in-law of the complainant when the accused joint as a salesman in the business concern run by DW1 and the said cheque is being misutilised by the complainant, it was contended.

(3.) THE jurisdiction of revision is essentially the power and the duty of superintendence and correction. THE crucial question is whether the findings of fact rendered are so grossly erroneous or perverse so as to warrant revisional interference. While considering this question, no court of revision can afford to ignore the fact that normally respect and regard must be given to the findings of fact concurrently affirmed by two courts. THE trial court has the advantage of seeing the witness performed in the witness stand before it and that evident advantage which a trial Judge has in the matter of appreciation of evidence cannot be lost sight of. In the present case, the accused denied the entire transaction and contended that he is not liable to give the cheque amount. He has admitted the signature in Ext.P1. THE defence case that one of the four cheques given by the accused to DW1, Ramesan, the brother in law of the complainant as security at the time when he joined as a salesman in the institution run by DW1 was misused by the complainant for filing the complaint. THE accused was examined as DW3 and the Bank Manager was examined as DW2. DW1, the witness examined on the side of the defence, did not support the version of the accused in the cross examination made by the learned counsel for the accused with permission of the court. He denied the suggestion that cheques were received by him from the accused as security. No such defence was there . In the reply notice, Ext.D2 sent at the instance of the accused for the statutory notice sent by the complainant before filing the complaint the date when he joined in the institution run by DW1, when did he hand over the cheque as security, particularly the date and before whom etc. are not stated in the reply notice, Ext.D2 and not stated in the evidence of DWs.1 and 3. According to the accused, DW1 had handed over the disputed cheque to PW1, his brother in law who misused the same for filing the complaint. This cannot be believed and cannot be accepted from the point of view of a prudent man. No steps have been taken by the accused against DW1, his employer who according to him, did not return the four cheques handed over by him as security when he joined in that institution, even after he was expelled from that job. This also cannot be swallowed as such. Ext.P7 agreement dated 17/7/1997 produced by the complainant and marked through the accused, DW3 in cross examination as admitted by him, would show that while the accused was working as salesman in the business concern run by DW1 and one Santhosh, there was some complaints of financial irregularities for which the accused and his brothers, Navas and Nazar were liable as agreed in Ext.P7. Nothing has been mentioned in Ext.P7 regarding the possession of cheques with DW1 as security which would have been mentioned definitely if it was true. Even after coming to know that the cheque had been presented before the Bank for collection, the accused had not raised a little finger against the complainant, PW1 and DW1, the employer, who, according to the accused, have given the disputed cheque which was handed over by him as security to DW1 so as to file the false complaint against him by PW1 after misusing the cheque. His inaction is eloquent. All these are circumstances which must weigh with the prudent mind while attempting to decide whether the oral evidence of PW1 can be accepted or not. THE courts below did not find any reason to reject and discard the evidence of PW1. THE courts below have chosen to accept and act upon the oral evidence of PW1. I find that the courts below have not committed any error warranting revisional jurisdictional interference in accepting the testimony of PW1. THE courts below concurrently held that the cheque in dispute was drawn by the petitioner in favour of the complainant, that the complainant has validly comply with clause (a) and (c ) of the Proviso to Section 138 of the Act and that the revision petitioner/accused failed to make the payment within fifteen days of receipt of the statutory notice. Both the courts have rejected the defence set up by the revision petitioner while entering the conviction. THE said conviction has been recorded after a careful evaluation of the oral and documentary evidence adduced on the side of the complainant. This Court sitting in revisional jurisdiction will be loath to interfere with the findings of fact recorded by the courts below concurrently. I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is confirmed.