MUJEEB RAHMAN Vs. RIYASU

JUDGEMENT

(1.) This Revision Petition is filed challenging the concurrent findings of conviction entered and the sentence imposed on the Revision Petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the N.I. Act') in Criminal Appeal No.193/12. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T. No.30/11 on the files of Judicial First Class Magistrate's Court-II, Koyilandy. According to the impugned judgment, the Revision Petitioner is sentenced to pay a fine of Rs.6,13,000/- (Rupees six lakhs and thirteen thousand only) and in default of payment of fine, to undergo simple imprisonment for a period of two months. If the fine amount is realised, it shall be given to the complainant as compensation under Sec.357(1) Cr.P.C.

(2.) The learned counsel for the Revision Petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently. The grounds raised before me are also urging for re-appreciation of evidence once again, which is not permissible under the revisional jurisdiction unless any kind of perversity is found in the appreciation of evidence. The courts below had concurrently found that the 1st respondent had successfully discharged initial burden of proving execution and issuance of the cheque; whereas the Revision Petitioner had failed to rebut the presumption under Section 118(a) and 139 of the N.I. Act which stood in favour of the 1st respondent. So also, it is found that the debt due to the 1st respondent was a legally enforceable debt and Ext.P.2 cheque was duly executed and issued in discharge of the said debt. The Revision Petitioner failed to point out any kind of perversity in the appreciation of evidence. I do not find any kind of illegality or impropriety in the said findings or perversity in appreciation of evidence, from which the above findings had been arrived at. Therefore, I am not inclined to re- appreciate entire evidence once again and I confirm the concurrent findings of conviction.

(3.) The learned counsel for the revision petitioner submits that Ext.P3 is the memo issued from the Nilambur Co-operative Bank, Nilambur Branch, dated 19/1/09, Ext.P4 is the memo issued from the Canara Bank, Cherooty Road Branch dated 29/1/09 and Ext.P5 is the lawyer's notice demanding cheque amount dated 31/1/09. The complainant himself admitted that he went abroad on 20/1/09, after entrusting the cheque to the bank. On a conjoint reading of Exts.P3, P4 and P5, it could be seen that when the lawyer's notice was issued, the revision petitioner was abroad and the same was issued without the instruction of the complainant. Therefore, the lawyer's notice can be presumed to be one issued without the instruction of the complainant and thereby the same is bad in law, in view of Sec.138(b) of the N.I. Act. This is the sole point raised by the learned counsel. According to Sec .138(b) of the N.I. Act, the payee the holder in due course should have demanded for payment of the cheque. In the absence of the complainant in India, it could be reasonably presumed that the same was issued without the instruction of the complainant. I am unable to accept the said argument. Going by Ext.P5, it is evident that, that notice is issued under the instruction of the complainant. An instruction can be given over telephone or in writing or through electronic media, while working abroad. Therefore, the argument that at the time of issuing notice, the complainant working abroad is of no consequence at all.