P.J. THOMAS Vs. VIJAYAKUMARI

JUDGEMENT

(1.) THE following points arise for a decision in this Criminal Revision Petition.

(2.) RESPONDENTS 1 to 3 are the legal representatives of the deceased complainant. He claimed that the petitioner borrowed Rs.3,65,000/ - from him in September, 2001 and on his demanding payment, the petitioner issued Ext.P1, Cheque dated 21.01.2002 drawn on the Syndicate Bank, Ernakulam branch (for short, ''the drawee bank ''). The complainant presented that cheque for encashment through the Balaramapuram branch of the Thiruvananthapuram District Co -operative Bank (for short, ''the collecting bank ''). The collecting bank presented the cheque to the drawee bank through its Ernakulam branch. The drawee bank returned the cheque as per Ext.P3, memo for insufficiency of funds. That memo was sent to the collecting bank through its Ernakulam branch and reached the complainant on 10.04.2002 as evidenced by Ext.P12. The complainant issued Ext.P5, notice to the petitioner on 24.04.2002 intimating the dishonour and demanding payment of the amount. Issue and service of the notice are proved by Exts.P5 to P8. Since the petitioner did not pay the amount within the prescribed time, the complainant filed C.C. No.6 of 2004 in the Judicial First Class Magistrate's Court -V, Thiruvananthapuram. Learned magistrate acquitted the petitioner on the ground that notice under proviso (b) of Sec.138 of the Act was not issued to the petitioner within the time prescribed. That acquittal was challenged in this Court in Crl. Appeal No.1034 of 2005. This Court, by judgment dated 28.03.2008 allowed the appeal by way of remand giving both sides opportunity to adduce further evidence. The complainant adduced further evidence. While so, the complainant died and respondents 1 to 3 were impleaded as his legal representatives. They continued the prosecution. Learned magistrate held that due execution of the cheque is proved and that the respondents are entitled to the presumption under Sec.139 of the Act. Learned magistrate also found that notice under proviso (b) of Sec.138 of the Act was sent within 15 days from the date on which dishonor was intimated to the complainant from the collecting bank. The petitioner was convicted and sentenced to undergo simple imprisonment for six months and pay fine of Rs.3,65,000/ -. Learned Additional Sessions Judge (Fast Track -I), Thiruvananthapuram confirmed the conviction and sentence in Crl. Appeal No.310 of 2009. Hence this revision.

(3.) THE learned counsel for respondents 1 to 3 has contended that the scope of revision is only to see whether the finding of the trial and appellate courts is perverse or is not supported by any evidence. According to the learned counsel, sufficient evidence is let in by the complainant as regards the transaction and due execution of the cheque. It is argued that evidence of the petitioner as D.W1 is unreliable as rightly found by the courts below.