TOM VARGHESH Vs. JHON K JHON

JUDGEMENT

(1.) Revision petitioner was convicted and sentenced in C. C. 298/00 and C. C. 299/00 for the offence under Section 138 of N. I. Act. Petitioner unsuccessfully challenged conviction and sentence before Sessions Court in Crl. A. Nos. 121/03 and 122/03. Petitioner is challenging conviction and sentence in these revisions.

(2.) Though evidence was recorded separately in both cases evidence is identical, except that order of exhibits marked on the side of revision petitioner was different. When Ext D1 in C. C. 298/00 is the plaint in O. S. 5.362/99, it was marked as Ext. D2 in other case. Likewise, Ext. D2 in C. C. 298/00 is marked as Ext. D1 in other case. Ext. D3 is common. Ext. P1 cheque in both cases is dated 15-10-1999. First respondent is the payee. Cheques were admittedly drawn in the account maintained by revision petitioner. Ext. P1 in C. C. 298/00 was drawn in the account maintained in Vazhappally branch of Bank of Baroda and Ext. P1 in C. C. 299/00 is drawn in Perumpanachy branch of Central Bank of India. Ext. P1 cheque in C. C. 298/00 is for Rs. 2,70,000/- and Ext. P1 cheque in C. C. 299/00 is for Rs. 1,00,000/-. The fact that both cheques were dishonoured for want of sufficient funds when presented for encashment by first respondent is not disputed. It is also not disputed that within statutory period first respondent demanded the amount covered by the respective cheques by sending registered notice. Notices were received by petitioner and he failed to pay the amount. First respondent has lodged respective complaints within the statutory period. If Ext. P1 cheques were issued towards discharge of existing liability conviction of petitioner for the offence under Section 138 of N. I. Act in both cases cannot be challenged as the fact that cheque was dishonoured for want of sufficient funds and cheques were issued in the account maintained by revision petitioner and first respondent has complied with all statutory formalities provided under Sections 138 and 142 of N. I. Act is not disputed. But crucial question is whether respective cheques were issued towards discharge of existing liability.

(3.) When revision petitioner would contend that respective cheques were not issued towards discharge of any loan obtained by him as canvassed by first respondent and the cheques were given as blank cheques when he received the amount when he bid the chitties conducted by first respondent, first respondent contended that both cheques were issued towards repayment of Loan obtained by revision petitioner from first respondent personally on two different dates. Though it was not specifically stated in the complaints, at the time of evidence, first respondent, as PW1 admitted that Rs. 1,00,000/- covered by Ext. P1 cheque in C. C. 299/00 was borrowed on 16-9-1999 and cheque was issued on 15-10-1999. His case was that Rs. 2,70,000/- covered by Ext. P1 cheque in C. C. 298/00 was borrowed on 15-10-1999 and cheque was issued on 15-10-1999 towards discharge of that liability.