GRACEAMMA THOMAS Vs. VIJAYAKRISHNAN AND ORS.

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. 718 of 2010 on the files of the II Additional Sessions Judge, Thiruvananathapuram. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C. No. 266 of 2005 on the files of the Judicial First Class Magistrate's Court -III, Thiruvananthapuram. According to the impugned judgment, the Revision Petitioner is sentenced to undergo imprisonment for one day till rising of the court. The accused shall pay Rs. 1,25,000/ - to the complainant as compensation under Sec. 357(1) of the Cr.P.C. In default, the accused shall undergo simple imprisonment for a period of 6 months.

(2.) THE complainant's case is that the accused borrowed an amount of Rs. 2,24,000/ - from the complainant and in discharge of the said liability, five cheques dated 8/3/1999, drawn on the Central Bank of India, were issued and out of that cheques, two cheques dated 8/3/1999 for Rs. 50,000/ - each are the cheques involved in this case. The above two cheques are marked as Exts. P1 series. In short, Ext. P1 series cheques were issued in discharge of Rs. 1,00,000/ -, out of Rs. 2,24,000/ -.

(3.) GOING by the impugned judgment, it could be seen that Ext. D8(a), the relevant page showing entry of the complaint lodged by the accused complaining the alleged threat, culminated in the issuance of the cheque, produced by the accused herself shows that the said story of issuance of the cheque, under alleged the duress, does not find a place in the complaint lodged by the accused. Thus, she miserably failed to prove the circumstances under which, according to her, she issued the cheque. It goes a long way to prove the complainant's case that the cheques were issued in discharge of a legally enforceable debt. That apart, admittedly, the petitioner is a practising lawyer. She should have definitely made a complaint in writing to the nearby Police Station, if there was an occurrence of threatening by which the accused obtained cheques for Rs. 2,24,000/ -. The falsity of the defence version further gets assurance from the non -examination of the said Ambikakumari, who had an active role in the transaction alleged by the accused. The reason for non -examination is a matter known to the accused only. Further, the said Vijayan, who had been examined as D.W. 3, admitted the fact that he is familiar with the accused being his classmate; but he has not supported the defence case. Another important aspect is that if there was a threat to kill the six year old son of the accused, if she refuses to give the cheque, certainly, being a practising lawyer, she should have moved the law in motion to address her grievance. In short, the accused miserably failed to improbabilise the complainant's case or to probabilise her defence version. The defence set up by the accused is highly improbable, impossible and unbelievable. Thus, the accused miserably failed to rebut the presumption under Secs. 139 and 118(a) of the N.I. Act which stood in favour of the complainant.