LAWS(KER)-2015-7-69

SIVAN KUTTY Vs. BALAKRISHNAN AND ORS.

Decided On July 22, 2015
Sivan Kutty Appellant
V/S
Balakrishnan And Ors. Respondents

JUDGEMENT

(1.) THIS Revision Petition is filed challenging the concurrent findings of conviction entered and the sentence imposed on the Revision Petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') in Criminal Appeal No. 192 of 2010 on the files of the Sessions Judge, Kollam. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C. No. 1304 of 2006 on the files of the Judicial First Class Magistrate's Court, Karunagappally. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for 15 days and to pay a sum of Rs. 95,000/ - as compensation to the complainant. In default, to undergo simple imprisonment for three months and two weeks.

(2.) THE case of the complainant is that the accused borrowed an amount of Rs. 85,000/ - from the complainant on 13/8/2006 and in discharge of the said debt, the accused issued Ext. P1 cheque for the said amount to the complainant. When he presented the cheque for encashment, the same was dishonoured and returned for want of sufficient fund. Though he had caused to issue a statutory legal notice demanding the cheque amount, the accused did not pay the cheque amount; nor did he send a reply denying the said liability. To discharge the initial burden of proving execution and issuance of the cheque, the complainant was examined as P.W. 1 and Exts. P1 to P6 were marked. After evaluating the evidence of the complainant, the court below found that the accused has miserably failed to probabilise his version or improbabilise the complainant's case. Thus, the complainant has successfully discharged the initial burden of proving execution and issuance of the cheque and thereby the presumptions under Secs. 138 and 118(a) of the N.I. Act would stand in favour of the complainant.

(3.) THE learned counsel for the Revision Petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently. The learned counsel urged for a re -appreciation of evidence once again, which is not permissible under the revisional jurisdiction unless any kind of perversity is found in the appreciation of evidence. The Revision Petitioner failed to point out any kind of perversity in the appreciation of evidence. The courts below had concurrently found that the complainant/1st respondent had successfully discharged initial burden of proving execution and issuance of the cheque; whereas the Revision Petitioner had failed to rebut the presumption under Section 118(a) and 139 of the N.I. Act which stood in favour of the 1st respondent. So also, it is found that the debt due to the 1st respondent was a legally enforceable debt and Ext. P1 cheque was duly executed and issued in discharge of the said debt. I do not find any kind of illegality or impropriety in the said findings or perversity in appreciation of evidence, from which the above findings had been arrived. Therefore, I am not inclined to re -appreciate entire evidence once again and I confirm the concurrent findings of conviction.