UMMER, S/O KUNHALAN Vs. JANARDHANA MENON

JUDGEMENT

(1.) ACCUSED in C.C.No.340/2009 on the file of the Judicial First Class Magistrate Court -II, (Forest Offences), Manjeri, is the revision petitioner herein. The case was taken on file on the basis of a private complaint, filed by the complainant against the first respondent, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').

(2.) THE case of the complainant in the complaint was that, the revision petitioner borrowed a sum of 10,37,408/ - for his business and an amount of 5,00,000/ - was paid on 16.06.2008 and Ext.P1 agreement was executed, agreeing to pay the balance amount of 5,37,408/ - in two instalments of which 3,00,000/ - and 2,37,408/ - within a period of two months each and issued two cheques for the said amount and later the amount of 3,00,000/ - was paid and the cheque was returned and the other amount was not paid. The cheque when presented was dishonoured for the reason 'funds insufficient' vide Ext.P3 dishonour memo, and this was intimated to the complainant by Ext.P4 memo. The complainant issued Ext.P5 notice and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Act. Hence the complaint.

(3.) WHEN the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P7 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had no money transaction with the complainant and in fact he had purchased the property of the complainant and for the payment of the consideration, a blank signed cheque and a blank signed stamp paper were obtained and later though the amount was paid and the documents were executed, the cheque and stamp paper were mis -used and Ext.P1 and P2 documents were created and the present complaint was filed. In order to prove his case, one witness was examined as DW1 and Ext.D1 was marked on his side. After considering the evidence on record, the court below rejected the contentions of the revision petitioner and came to the conclusion that, Ext.P2 cheque was issued in discharge of a legally enforceable debt for the amount due from him to the complainant and found the revision petitioner guilty for the offence under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for three months and also to pay a fine of 2,37,500/ -, in default to undergo simple imprisonment for three months more. It is further ordered that, if the fine amount is realised, the same be paid to the complainant as compensation under Section 357(1)(b) of the Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Crl.Appeal No.121/2012 before the Sessions Court, Manjeri, which was made over to 3rd Additional Sessions Court, Manjeri, for disposal and the learned 3rd Additional Sessions Judge by the impugned judgment dismissed the appeal, confirming the order of conviction and sentence passed by the court below. Dissatisfied with the same, the present revision has been field by the revision petitioner/ accused before the court below.