P.S. BINOY Vs. STATE OF KERALA

JUDGEMENT

(1.) ON indictment under Section 138 of the Negotiable Instruments Act, the revision petitioner herein faced trial before the Judicial First Class Magistrate -V, Kottayam in S.T No.46 of 2010. Prosecution was initiated by the 2nd respondent herein in the in the trial court. His case is that a cheque issued by the revision petitioner for 5,45,000/ - in discharge of the amount borrowed by him for some purpose was dishonoured due to insufficiency of funds, and in spite of statutory notice, the revision petitioner did not make payment of the cheque amount.

(2.) THE revision petitioner pleaded not guilty in the trial court and claimed to be tried. Accordingly, the prosecution proceeded for trial. The complainant examined himself as Pw1, and also marked Exts.P1 to P9 including the cheque in question. When examined under Section 313, Cr.P.C, the revision petitioner denied the incriminating circumstances and advanced a defence that the cheque in question was, in fact, handed over by him as security in another loan transaction involving only an amount of 3 lakhs. In spite of opportunity granted by the trial court, the revision petitioner did not adduce any evidence in defence. On an appreciation of the evidence adduced by the complainant, the learned Magistrate found him guilty under Section 138 of the Negotiable Instruments Act. On conviction thereunder, he was sentenced to undergo simple imprisonment for two months and also to pay a fine of 5,45,000/ -.

(3.) ON hearing both sides and on a perusal of the case records, I find no reason or scope to interfere in the conviction. The complainant has given definite and consistent evidence regarding the alleged transaction of borrowal and also regarding the execution of Ext.P2 cheque in discharge of the said liability. This evidence given by the complainant stands not discredited, and the presumption thus available to him under Section 139 of the N.I.Act stands not in any manner rebutted. The defence pleaded by the revision petitioner is that he had borrowed 3 lakhs from some other person and Ext.P2 cheque was handed over by him as security in the said transaction of borrowal. There is no explanation why the said person could not have filed a complaint by using the said cheque. Anyway, the defence case stands not in any manner probabilised or proved that such a cheque was handed over to somebody else. This is a case where the cheque admittedly bearing the signature of the revision petitioner was handed over by him. In such a factual situation, no further evidence is required to prove the execution of the cheque. Exts.P3 and P4 documents will show that the cheque in question was dishonoured due to insufficiency of funds. The revision petitioner does not have a case that he had sufficient funds in his account to honour the cheque or that it was bounced on some other ground. I find that Ext.P2 cheque was in fact bounced due to insufficiency of funds in the account of the revision petitioner. The alleged transaction of borrowal and also issuance of the cheque in discharge of the said liability stands well proved by the evidence of the complainant. Ext.P5 statutory notice was sent by the complainant in time and the complaint was filed in time. The revision petitioner has no explanation why he did not send reply to the statutory notice. Thus, I find in revision that the case on facts stands well proved by the complainant, and that conviction under Section 138 of the Negotiable Instruments Act was rightly made by the trial court and the appellate court.