HAMZA MUSLIAR P.K. Vs. HAMZA KHAN

JUDGEMENT

(1.) The accused in C.C.No.21/2009 on the file of the Judicial First Class Magistrate Court-I, Manjeri is the revision petitioner herein.

(2.) The case of the complainant in the complaint was that at the request of the revision petitioner an amount of Rs. 3 lakhs has been invested for his business purpose agreeing to repay the same along with profit after 1 = years and later the revision petitioner did not pay the amount as agreed and when demanded the amount, he had issued Ext.P2 cheque dated 10.11.2008 drawn on Punjab National Bank, Kalikavu branch. The cheque when presented was dishonoured for the reason funds insufficient evidenced by Ext.P3 dishonour memo and that was intimated to the complainant by his banker vide Ext.P4 intimation letter. The complainant issued Ext.P5 notice dated 28.11.2008 vide Ext.P6 postal receipt. Since he did not get the postal acknowledgment, he made Ext.P7 complaint to the postal authorities and received Ext.P8 letter from the Superintendent of post offices, Manjeri division stating that notice has been delivered to the addressee. The revision petitioner did not pay the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act.

(3.) When the revision petitioner appeared before the court below, particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, the complainant himself was examined as PW1 and Exts.P1 to P8 were marked on his side. After closure of the complainants' evidence, the revision petitioner was questioned under section 313 of the Code and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that there was no money transaction as claimed by the complainant and the cheque was not issued in discharge of any liability. The revision petitioner along with several others have supported the partnership business evidenced by Ext.D4 partnership agreement and the partnership business could not be flourished as expected and the business failed and other persons have withdrawn the amount and the complainant and the revision petitioner wanted to proceed with the business and for that purpose they wanted to shift the business to another building and for the purpose of giving security to the building owner, a cheque was prepared and kept in the business premises, which was somehow obtained by the complainant and the present complaint was filed. In order to prove the case of the revision petitioner, the son of the complainant was examined as DW1 and the revision petitioner himself was examined as DW2 and Exts.D1 to D4 were marked on his side. After considering the evidence on record, the court below disbelieved the case of the revision petitioner and believed the case of the complainant and convicted him for the offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for six months and also to pay the cheque amount of Rs.3 lakhs as compensation, in default to undergo simple imprisonment for three months under Section 357(3) of the Code. Aggrieved by the same, the revision petitioner filed Crl.A.No.80/2011 before the Sessions Court, Manjeri, which was made over to the Third Additional Sessions Court, Manjeri for disposal. The learned Additional Sessions Judge allowed the appeal in part confirming the order of conviction and direction to pay compensation with default sentence but modified the substantive sentence to imprisonment till the rising of court. Aggrieved by the same, the present revision has been filed by the revision petitioner before this Court.