MATHAI Vs. BIJU CHERIYAN

JUDGEMENT

(1.) The accused in a case filed under Sec. 138 of the N.I.Act challenges the conviction and sentence concurrently passed against him. The learned counsel for the petitioner submits that there was no proper appreciation of evidence by the courts below and that the appreciation of evidence was wholly erroneous. The case of the complainant is that a sum of Rs. 3 lakhs was paid on 2.1.1995 and to discharge that liability Ext.P5 cheque was issued by the accused. That contention was resisted by the accused contending that there was absolutely no transaction between the accused and the complainant whereas there was a transaction between the accused and one Biju Thomas, the brother-in-law of the complainant. According to the accused, he had borrowed some money from Biju Thomas and at that time the accused had handed over a signed blank cheque leaf and signed blank papers and that signed blank paper was used to convert into an agreement for sale of the property and based on that agreement a suit for specific performance was filed by Biju Thomas as O.S.No.93 of 1996 before the Sub Court, Muvattupuzha. It is also contended that the signed blank cheque leaf was subsequently filled up by the complainant Biju Cherian showing his name as payee and also putting the figure ( the amount) and the date therein to suit his convenience and after presenting the said cheque and sending a statutory notice the complaint was filed. According to the accused, Biju Thomas who was the brother-in- law of the complainant handed over that signed blank cheque leaf to the complainant and this case was foisted against the accused.

(2.) The complainant died prior to his examination in court. Hence the father of the complainant was examined as P.W.1. The Bank Manager was examined as P.W.2. It is submitted by the learned counsel for the accused that on going through the evidence given by P.W.2 it can be seen that he at first stated before the court that he did not see the cheque being filled up by anybody. In other words, he did not see the accused or the complainant filling up the cheque. He has also stated that he did not see the accused signing the original of Ext.P5 cheque. The original of Ext.P5 cheque was produced before the Sub Court, Muvattupuzha in O.S.No.114 of 1996 which was the suit filed by Biju Cheriyan (the complainant) for realisation of the amount covered by the very same cheque.

(3.) It is argued by the learned counsel for the accused that on coming to know of the fact that the complainant and Biju Thomas were intending to file a suit against the accused making use of the cheque leaf, a caveat petition was filed before the Sub Court in which he had mentioned that his signed blank cheque leaf drawn on Paingottoor Service Co-operative Bank was given to Biju Thomas. But the learned counsel for the complainant would submit that the number of the cheque was not mentioned therein. It is also argued by the learned counsel for the complainant that no specific case was put forward by the accused in his statement under Sec. 313 Crimial P.C. nor was any witness examined to improbablise the case of the complainant. But the learned counsel for the complainant would submit that since P.W.1 could not have witnessed the money transaction, it is quite evident that he was subsequently made to say in tune with the complaint and so his evidence cannot be accepted to hold that there is evidence regarding due execution of the cheque.