M.S. ANILKUMAR Vs. SHAMY

JUDGEMENT

(1.) This revision petition is directed against the judgment dated 31st Aug., 2000 passed by the 5th Additional Sessions Judge, Ernakulam in Crl. Appeal No 485/98. By a common judgment/order rendered in Crl. Appeal 485/98 and Crl. R.P. 43/99, the learned Sessions Judge had upheld the judgment dated 18-11-1998 passed by the learned Judicial First Class Magistrate, North Parur in C.C. 559/96. By the said judgment the learned Magistrate had found the accused guilty of the offence punishable under Sec. 138 of Negotiable Instruments Act. He was convicted and sentenced to undergo simple imprisonment for a period of one year.

(2.) The complainant alleged that the revision petitioner/accused had issued Ext.P2 cheque to her for an amount of Rs. Three lakhs. The accused is the brother-in-law of the complainant. When the matrimonial life ran into rough weather, because of differences of opinion between the concerned parties. At the time of settlement of the disputes Ext.P2 cheque for Rs. Three lakhs was allegedly issued by the accused/revision petitioner to the complainant. The said cheque when presented for encashment was dishonoured by the bank on the ground that sufficient amount is not available in the account. Ext. P5 notice of demand was issued. It was duly received and acknowledged. It evoked Ext.P8 reply. But no payment was made as demanded. The accused took the stand that the complainant is not competent to present the cheque before the marriage was dissolved as agreed by the contestants. It was also contended that the cheque was issued under threat, duress and coercion.

(3.) During the course of trial the complainant examined herself as PW1 and the Bank Manager as PW2. Exts. P1 to P10 were marked. During the course of trial the accused repeated his stand, which he took up in Ext.P8 reply notice that the cheque was not issued for the due discharge of any legally enforceable debt/liability. According to him it was issued under duress. He had no liability to the complainant, it was further alleged. No defence evidence was adduced.