C.M. JOHNSON Vs. O.T. RAMACHANDRAN

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, 1881 (for short, 'the N.I. Act') in Criminal Appeal No. 265/04 on the files of the court of the Additional Sessions Judge (Ad hoc) - II, Kalpetta. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C. No. 143/03 on the files of the Judicial First Class Magistrate's Court -I, Mananthavady. According to the impugned judgment, the Revision Petitioner was sentenced to undergo simple imprisonment for one day till rising of the court and to pay to the complainant Rs. 16,000/ - as compensation under Section 357(3) of the Cr.P.C. and in default to undergo simple imprisonment for two months.

(2.) IT is the case of the complainant that the accused borrowed an amount of Rs. 27,000/ - on 2 -8 -2002 promising to repay the amount within one month. When the accused failed to repay the amount as promised, mediators and friends intervened and the accused agreed to remit the said amount in the Panamaram Service Co -operative Bank Ltd. But he remitted Rs. 11,000/ - only in the bank. So the mediators again intervened and on mediation the accused has drawn and issued Ext. P1 cheque for Rs. 16,000/ - in favour of the complainant. When the cheque was presented for encashment, the same was dishonoured and returned for want of sufficient funds. Though he had caused to issue a lawyer's notice, the accused did not send a reply nor did he pay off the cheque amount. Thus, he has committed the offence punishable under Section 138 of the N.I. Act.

(3.) GOING by the judgment under challenge, it is seen that the accused has set up a defence contention on Ext. D1 to D3 receipts dated 4 -10 -2002, 7 -10 -2002 and 18 -10 -02 respectively. Ext. P1 cheque was dated 30 -10 -2002 and the same was presented for collection in the bank on 3 -4 -2003. In Ext. P6 reply notice dated 2 -5 -2003 the accused had stated that if the borrowed amount was not repaid by him within the cheque date, the complainant can present the cheque for Rs. 16,000/ -. So it has come out in evidence that the accused issued Ext. P1 post dated cheque for Rs. 16,000/ -. From Exts. D1 to D3 receipts it can be seen that he had paid Rs. 11,000/ - and the last remittance was on 18 -10 -2002. But the complainant issued Ext. P4 notice on 9 -4 -2003. Therefore, it could be reasonably presumed that Exts. D1 to D3 are not payments covered under Ext. P1 cheque. In the complaint itself, the complainant has stated that the borrowal of Rs. 27,000/ - and repayment of Rs. 11,000/ - are evidenced by Exts. D1 to D3. Therefore, Exts. D1 to D3 can only be a payment to an amount due under Ext. P1 cheque. In this analysis, I find that there is no illegality or impropriety in the concurrent findings of conviction.