GEORGE S/O CHANAYIL ANTONY Vs. KAMARUDHEEN

JUDGEMENT

(1.) The trial court found the petitioner-accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. He was sentence to undergo simple imprisonment for three months. The accused was also directed to pay a compensation of Rs.75,000/- to the first respondent complainant under Section 357(3) of the Code of Criminal Procedure and in default of payment of Compensation, to undergo rigorous imprisonment for ten days. The petitioner- accused challenged the conviction and sentence in appeal. The Appellate Court dismissed the appeal and confirmed the conviction and sentence.

(2.) The case of the first respondent-complainant is that the accused borrowed an amount of Rs. 75,000/- on 10.5.1999 and in discharge of that debt/liability, the accused issued Ext.P1 cheque dated 14.8.1999. On presentation of the cheque, it was dishonoured on the ground of insufficiency of funds in the account maintained by the accused. Ext. P4 notice dated 6.12.1999 was issued, which was received by the accused on 7.12.1999. the accused did not repay the amount nor did he send may reply to the notice. The complaint was filed by the first respondent within the time prescribed under Section 142 of the Negotiable Instruments Act.

(3.) The complainant was examined as PW1. There was no defence evidence on the side of the accused. The case put forward by the accused in the cross examination of PW1 is that the cheque was issued to one Assanar and it was misused by the complainant. In the cross examination of PW1, he stated that the issue of Ext.P1 cheque and the payment of money were simultaneously made. PW1 stated that at first the accused handed over the cheque and thereafter, a sum of Rs.75,000/- was given by the complainant to the accused. It was contended by the accused that since the cheque was issued before the amount was given by the complainant to the accused, it cannot be said that the cheque was issued in discharged of any debt or liability coming within the purview of Section 138 of the Act. The trial court negatived this contention. It was also held by the trial court that the presumption under Section 139 of the Negotiation Instruments Act was not rebutted by the accused. The Appellate Court confirmed the findings of the trial court.