N. SUBAIR Vs. ABDUL LATHEEF MATTARA 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. 70 of 2012 on the files of the Additional Sessions Judge -III, Manjeri. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C. No. 707 of 2009 on the files of the Judicial First Class Magistrate's Court -I, Manjeri. According to the impugned judgment, the Revision Petitioner is convicted and imposed to pay a fine of Rs. 3,27,000/ -. In default, to undergo three months. Out of the fine amount, Rs. 3,25,000/ - shall be directed to pay as compensation to the complainant under Sec. 357(1) of the Cr.P.C.

(2.) THE complainant's case is that the accused had borrowed an amount of Rs. 3 lakhs from the complainant on 27/3/2009 and on the same time itself, the accused drawn and issued Ext. P1 post dated cheque to the complainant in discharge of the said liability. When he presented the cheque for encashment through his bank, the same was dishonoured and returned for want of sufficient funds. To discharge the initial burden to prove, execution and issuance of the cheque, the complainant was examined as P.W.1 and another witness, who happened to see the transaction, was examined as P.W.2 and withdrawal of the said amount from the bank is proved by Ext. P7 bank pass book. After analysing this evidence, the courts below concurrently found that the complainant has successfully discharged the initial burden to prove, execution and issuance of the cheque and the presumptions under Secs. 118(a) and 139 of the N.I. Act would stand in favour of the complainant. I do not find any illegality or impropriety in the said finding.

(3.) THE defence case set up by the accused is that the brother of the complainant misused the cheque of the accused through complainant. That is, the accused having some transactions with the father -in -law of the brother of P.W.1 namely Abdurahiman and the accused entrusted one blank signed cheque to the said Abdurahiman towards his business transactions between them. Since the brother of the complainant was the son -in -law of the said Abdurahiman, he was managing the financial family affairs and he has taken the said cheque from the possession of Abdurahiman. To probabilise the said contention, Abdurahiman was examined as D.W.1. It is pertinent to note that later the marriage, between the brother of the complainant and the daughter of Abdurahiman, was dissolved through Family Court and hence they were in inimical terms and the accused is one of the friends of Abdurahiman. It has come out in evidence that due to the dissolution of the marriage between the complainant's brother and the daughter of Abdurahiman, Abdurahiman was not in good terms with the complainant's family. Therefore, the court below is justified in finding that no reliance can be placed on the evidence of Abdurahiman. This finding is further supported by the absence of such a contention in Ext. P6 reply sent by the accused on receipt of the lawyer's notice. In Ext. P6, he stated that one of the cheques was stolen from him and he has filed an intimation to that effect to the bank. But it has come out in evidence that the accused had not given such an intimation to the bank authority and the cheque was dishonoured and returned for want of sufficient funds only. During re -examination, D.W.1 also admitted that while issuing lawyer's notice, he was aware about the handing over of the above said cheque. As rightly observed by the court below, if that be so, the accused ought to have narrated the same in Ext. P6 reply notice. More importantly, the accused himself also adduced no oral evidence to substantiate the contentions raised in the notice. Thus, the courts below are justified in finding that the accused has miserably failed to rebut the presumptions under the N.I. Act which stood in favour of the complainant.