JOSEPH MATHEW Vs. STATE OF KERALA 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 Sec. 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') in Criminal Appeal No. 20 of 2001 on the files of the Additional District & Sessions Judge, Fast Track (Ad hoc -I), Kozhikode. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in C.C. No. 210 of 1999 on the files of the Judicial First Class Magistrate's Court -I, Thamarassery. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 5,000/ -. In default, the accused shall undergo simple imprisonment for a further period of one month. The accused is further directed to pay Rs. 1,00,000/ - as compensation to the complainant under Sec.357(3) of the Cr.P.C.

(2.) The case of the complainant is that the accused borrowed an amount of Rs. 1,50,000/ - from the complainant and in discharge of the said liability, the accused issued a cheque dated 30/1/1999 drawn on the South Indian Bank, Poonoor, for an amount of Rs. 1,50,000/ -. When the said cheque was presented for encashment, the same was dishonoured and returned for want of sufficient funds. When the accused was questioned under Sec.313 of the Cr.P.C., he stated that the complaint was filed misusing a blank singed cheque which was given as security to one Thomas Master. But no defence evidence was adduced to substantiate the said contention. Though the accused had stated in evidence that the complainant is a total stranger to him, he has not chosen to issue any reply to Ext. P3 statutory notice issued under Sec.138 of the N.I. Act. This is a strong circumstance where the contentions raised in defence lack bona fides. In Mulammoottil Consumer Credit Ltd., v/s. Sreenivasan [ : 2006 (4) KLT 543], this Court held that mere suggestions in the cross -examination or mere versions in Sec.313 of the Cr.P.C. are not sufficient to rebut the presumption under Secs.139 and 118(a) of the N.I. Act. In Ranjgappa v/s. Mohan [2010 (2) KLT 682 (SC)], the Apex Court held that the presumption mandated under Sec.139 of the Indian Penal Code includes the existence of a legally enforceable debt or liability. If that be so, mere suggestion or defence plea in Sec.313 Cr.P.C. is of no consequence at all. There is no illegality or impropriety in the findings whereby the court below rejected the appeal.

(3.) The Revision Petitioner reiterated the contentions which were raised before the courts below and got rejected concurrently. The revision petitioner 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/2nd 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 Sec. 118(a) and 139 of the N.I. Act which stood in favour of the 2nd respondent. So also, it is found that the debt due to the 2nd 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.