MARY THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) THE above Criminal Revision Petition is filed against the conviction entered and the sentence imposed on the revision petitioner in S.T. No. 4611/2006 on the files of the Judicial Magistrate of the First Class -III, Palakkad, which was confirmed by the judgment in Crl. Appeal No. 788/08 on the files of the Court of Session, Palakkad Division. The revision petitioner 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 2nd respondent herein. After trial, he was convicted for the said offence and sentenced to pay a fine of Rs. 2,50,000/ - and in default, to undergo simple imprisonment for a period of three months. If the fine amount is realised, it will be given to the complainant/2nd respondent. The legality and propriety of the concurrent findings of conviction entered and the sentence imposed on the revision petitioner is under challenge in this revision petition.

(2.) THE complainant's/2nd respondent's case is that the revision petitioner had borrowed a sum of Rs. 2,50,000/ - from him on 21/8/2006 and in discharge of that debt, the revision petitioner had issued a cheque on 4/9/2006 for Rs. 2,50,000/ - to the 2nd respondent/complainant. When the cheque was presented for encashment in the Bank, the same was dishonoured and returned by the Bank with an endorsement 'funds insufficient'. Though he had caused to issue a lawyer's notice, the revision petitioner did not pay the cheque amount; but sent a reply stating false contentions.

(3.) AFTER considering the oral evidence of the 2nd respondent and Exts. P1 to P6, the trial court found that the 2nd respondent has successfully discharged the initial burden of proving the execution and issuance of the cheque and thereby the presumption under Secs. 118(a) and 139 of the N.I. Act would stand in favour of the 2nd respondent. I do not find any kind of perversity in the appreciation of evidence from which the court found as above. What remains to be considered is whether the revision petitioner had rebutted the said presumption under Secs. 118(a) and 139 of the N.I. Act which stood in favour of the 2nd respondent.