(1.) THE revision petitioner is the accused in C.C. No. 256/99 on the files of the Judicial First Class Magistrate's Court, Perumbavoor, as well as the appellant in Crl. Appeal No. 762/03 on the files of the Additional Sessions Court, North Paravur. He was prosecuted for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I. Act') on a complaint filed by the 1st respondent herein.
(2.) IT is the case of the 1st respondent that the revision petitioner had borrowed an amount of Rs. 1,50,000/ - from the 1st respondent/complainant on 15/7/1998 and the accused had issued a cheque for Rs. 1,50,000/ - drawn on the Service Co -operative Bank, Mudakkuzha Branch, in discharge of that liability. When the 1st respondent/complainant presented the cheque for collection, it was dishonoured with an endorsement "funds insufficient". Though the complainant had caused to issue a lawyer's notice to the accused intimating the fact of dishonour of the cheque, he didn't pay the cheque amount; nor did he send a reply denying the said liability. Thus, he has committed the offence punishable under Sec. 138 of the N.I. Act.
(3.) IT is the case of the revision petitioner that the courts below concurrently failed to appreciate the facts and evidence in its correct perspective. The trial court miserably failed to appreciate the defence contention in its correct perspective. Going by the judgment passed by the Appellate Court, after re -appreciating the entire evidence on record, the court below concurred with the finding of the trial court on a finding that the complainant had discharged his initial burden of proving the execution and issuance of cheque satisfactorily by examining the complainant himself as P.W.1 and also by producing Exts. P1 to P7, which disclose the statutory requirements under Section 138(b) of the N.I. Act. The case of the accused is that Ext. P1 cheque was a blank one issued to one Kora Varghese and the complainant has filed this complaint for and on behalf of Varghese. But the said Varghese is not examined before the Court. So also, no evidence was adduced in defence. No attempt was made by the complainant to prove that in fact the cheque was given to Kora Varghese. There should have been an earnest attempt to prove the possibility of defence contention in order to rebut the presumption under Sections 139 and 118(a) of the N.I. Act which stood in favour of the complainant. I do not find any reason to interfere with the finding that the complainant has successfully discharged the initial burden of proving execution and issuance of the cheque; but the accused has miserably failed to rebut the presumption under Sections 139 and 118(a) of the N.I. Act, which stood in favour of the complainant. There is no illegality or impropriety in the above findings and I do not find any kind of perversity in the appreciation of evidence from which those findings are arrived at.