T.K. SWAPNA Vs. KANNOTH JANARDHANAN 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. 74 of 2008 on the files of the II Additional Sessions Judge, Thalasssery. The above appeal was filed challenging the judgment finding that the Revision Petitioner is guilty of the said offence, passed in S.T.C. No. 67 of 2007 on the files of the Judicial First Class Magistrate's Court (Munsiff), Payyannur. According to the impugned judgment, the Revision Petitioner is sentenced to undergo simple imprisonment for one day till rising of the court and to pay a compensation of Rs. 1,75,000/ - to complainant under Sec.357(3) of the Cr.P.C. In default of payment of compensation, the accused shall undergo simple imprisonment for a period four months.

(2.) The complainant's case is that the accused owed an amount of Rs. 1,75,000/ - to him and towards the discharge of that liability, the accused had issued Ext. P1 cheque and when the cheque was presented for encashment, the same was dishonoured for want of sufficient fund.

(3.) Per contra, the accused contended, in defence, that her mother had some financial transactions with the Amin Textiles in connection with the purchase of cloths from Amin Textiles. In the course of that transaction, she had handed over two blank cheques belonging to the accused to Amin Textiles. The complainant has filed the complaint by misusing one of those signed blank cheques which was given to Amin Textiles. But, no evidence has been adduced by the accused to prove the transactions between the mother of the accused and Amin Textiles. It is also contended that as per the understanding between her mother and Amin Textiles, her mother agreed to hand over her kuri with the Kappad Kazhakam at Keloth before the date of maturity of the kuri to Amin Textiles. After the maturity of the kuri, the promoter i.e., Kappad Kazhakam handed over the kuri to Amin Textiles. There was a liability of Rs. 9,000/ - to Amin Textiles by the mother of the accused and towards that liability, the accused handed over two blank cheques to Amin Textiles. Except the above bare suggestions in Sec.313 statement, absolutely no evidence to substantiate the said contentions, at least, with the yardstick of preponderance of probabilities. In Kumar Exports v/s. Sharma Carpets [ : 2009 (1) KLT 197 (SC), the Apex Court held that bare denial of consideration or existence of data is not sufficient, something probable has to be brought on record for getting he burden of proof shifted to the shoulders of the complainant. In the instant case, no evidence has been adduced to probabilise the defence story put up in Sec.313 statement.