VIJAYA LEKSHMI Vs. INDIAN BANK AND ORS.

JUDGEMENT

(1.) This revision petition is preferred by the accused against the judgment in Criminal Appeal 150/02 of the Ist Additional Sessions Judge, Kozhikode. Revision Petitioner was accused in CC 351/99 of the Judicial First Class Magistrate -V, Kozhikode for having committed an offence punishable under Sec. 138 of the Negotiable Instruments Act (hereinafter referred to as the 'N.I. Act'). The complainant's case is that, accused borrowed a sum of Rs. 1,17,500/ - from the complainant and in discharge of that debt, he issued Ext. P1 cheque. When the cheque was presented for encashment, it was dishonoured for the reason of funds insufficient. The complainant demanded the due amount by giving a notice in writing, but after notice, there was no repayment of the due amount, hence he filed a complaint before Judicial First Class Magistrate, Kozhikode. During trial, complainant was examined as PW1 and his documents were marked as Exts. P1 to P7. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Sec. 313 Cr.P.C. Accused did not adduce any defence evidence. The learned Magistrate convicted the accused under Sec. 138 of the N.I. Act and sentenced to imprisonment for six months. Against that he preferred Criminal Appeal No. 150/2002 before 1st Additional Sessions Judge, Kozhikode, where the sentence was modified by the Appellate Court. Being aggrieved by that he preferred this revision petition.

(2.) The main contention advanced by the revision petitioner is that part payment of the debt amount under the cheque was paid to the payee and he has not made any endorsement of that part payment in the cheque. Instead of claiming the balance amount, he claimed the cheque amount, which is higher amount than the debt, in such a situation, no offence under Sec. 138 of the N.I. Act will be attracted.

(3.) In reply to the above argument, the 1st respondent admitted that the debt is less than the cheque amount, even though no endorsement is made on the back side of the cheque leaf an offence will attract against the revision petitioner.