CHERLAKUNDIL ALAVI Vs. N K ABOOBACKER

JUDGEMENT

(1.) ACCUSED in C.C.No.193/2001 on the file of the Judicial First Class Magistrate Court, Malappuram, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').

(2.) THE case of the complainant in the complaint was that, revision petitioner borrowed a sum of 2,40,000/ - on 01.11.1998, agreeing to repay the amount within one month and when demanded he had issued Ext.P1 cheque, in discharge of that liability, which when presented was dishonored for the reasons 'funds insufficient', vide Ext.P2 dishonour memo evidenced by Ext.P11 extract of cheque return register maintained by the bank and also Ext.P10 ledger extract of account of the accused maintained by the bank. This was intimated to the complainant by his banker vide Ext.P3 memo. The complainant issued Ext.P4 notice vide Ext.P5 postal receipt and the same was received by the revision petitioner evidenced by Ext.P6 postal acknowledgment. He had sent Ext.P7 reply. Revision petitioner also issued Ext.P8 notice and the complainant issued Ext.P9 reply notice. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.

(3.) WHEN the revision petitioner appeared before the court below, the 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 the bank manager was examined as PW2 and Exts.P1 to P11 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had borrowed an amount of 1,00,000/ - and issued Ext.P1 cheque as a security for the same. Though the amount was paid, the cheque was not returned and mis -using the cheque, the present complaint has been filed. In order to prove his case, one witness was examined as DW1. After considering the evidence on record, the court below found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo simple imprisonment for six months and also to pay a fine of 5,000/ - to the complainant, in default to undergo simple imprisonment for one month. Aggrieved by the same, the complainant filed Criminal Appeal No.168/2002 before the Sessions Court, Manjeri, and the learned Sessions Judge, by the impugned judgment allowed the appeal in part, reducing the substantive sentence to two months, but confirmed the sentence of fine with default sentence. Aggrieved by the same, the present revision has been filed by the revision petitioner/ accused before the court below.