SUDHESSAN NAIR Vs. T S SUNDARESAN

JUDGEMENT

(1.) THE revision petitioner is the accused in C.C.No.333 of 2002 on the file of the Court of Chief Judicial Magistrate, Pathanamthitta, who is challenging the concurrent finding against him for the offence under Section 138 of the Negotiable Instruments Act. THE courts below found the accused guilty and convicted him thereunder. THE trial court after considering the evidence convicted the accused for the said offence and sentenced him to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for thirty days vide judgment dated 15/11/2003 in C.C.No.333/2002.

(2.) THE accused preferred appeal numbered as Crl.A.No.429/2003 before the Court of Sessions, Pathanamthitta. THE complainant also preferred Crl.R.P.No.38/2003 seeking to enhance the sentence. Both the Crl. appeal and the Crl.revision petition were disposed of by the learned Sessions Judge together vide judgment dated 3/6/2005. THE appeal was dismissed confirming the conviction. But,the Crl. revision petition was allowed and the sentence was altered to undergo simple imprisonment for two months and to pay compensation of Rs.80,000/-under Section 357(3)Cr.P.C. and in default to undergo simple imprisonment for two months more. This has been challenged by the revision petitioner/accused in this revision petition.

(3.) THE case set up by the defence before the trial court during cross examination of PW1 and during S.313 Cr.P.C. questioning was that the accused did not borrow any amount from the complainant and he was seeing the complainant for the first time from the court and that the complainant had foisted a case against him by misusing the cheques which were lost from the accused. According to the learned counsel for the first respondent, Exts.P1 and P3 cheques dated 20/1/2002 and 20/5/2002 for Rs.50,000/- and 25,000/-respectively issued by the accused which were drawn in his account towards the discharge of legally enforceable debt due to the complainant and when the same were presented for collection before the Bank, those were dishonoured due to insufficiency of funds. To prove the case of the complainant, he was examined as PW1. Nothing has been elicited in the cross examination of PW1 to discredit his version in support of the complaint. Even after receipt of lawyer notice by the accused, no reply has been sent disputing allegations raised therein. THE revision petitioner/accused did not mount the witness box to substantiate his defence. After considering the evidence adduced from the side of the complainant, the trial court as well as the appellate court have found the accused guilty of offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced him thereunder. In these circumstances, I found that the courts below were fully justified in rejecting the defence of the revision petitioner. Sufficient opportunities were given by the trial court to adduce evidence on the part of the defence which was not availed of by the accused. Under Section 139 of the Negotiable Instruments Act, there is legal presumption that the cheque was issued for discharging antecedal liability and that presumption can be rebutted by the drawer of the cheque. In the present case, no valid and acceptable evidence whatsoever has been adduced by the accused to rebut that presumption available to the complainant under Section 139 of the Negotiable Instruments Act.