SEKHARAN Vs. RAJAN

JUDGEMENT

(1.) The accused convicted for offence under Section 138 of N.I. Act and sentenced thereunder is the petitioner in this revision. The sentence awarded to him by the trial court was simple imprisonment for 9 months. He was further directed to pay an amount of Rs.40,000/- as compensation to the complainant under Section 357(3) Cr.P.C. and in default to undergo simple imprisonment for a further term of three months. In appeal, the Sessions Judge confirmed the conviction but modified the sentence to one of fine of Rs.47,500/- only and in default to undergo R.I. for a period of three months. It is challenging the concurrent conviction under Section 138 of the N.I. Act and the modified sentence that the accused have come up in revision.

(2.) The contentions that are advanced before me by the learned counsel for the petitioner are

(3.) The contention of the accused is that he was made to drink by his friend Bilan and while under influence of liquor he was taken to the Bank by Bilan and caused an account to be opened and Bilan himself was retaining the passbook and the cheque book and he has not issued Ext.P1 cheque to the complainant. Apart from raising such a contention, the petitioner has not taken any steps to examine the said Bilan as a witness and no attempt was made also to examine the Bank Manager or other officer of the Bank who did the opening of the account for the petitioner. It is worthy to note that the complainant who is the first respondent in this revision has given evidence as PW1 that the accused has signed in Ext.P1 cheque and that he was so signing in Ext.P1 cheque in his presence. Nothing is brought out in cross examination to discard the testimony of PW1. The petitioner has no case that Ext.P1 cheque is not one drawn on his account. When the cheque is one drawn on his account, unless he establishes his contention that the account was caused to be opened by his friend Bilan rendering him under influence of liquor, he cannot rest by contending that he has not issued cheque to the complainant. Admittedly, he has received notice issued through lawyer consequent on dishonour of Ext.P1 cheque for an amount of Rs.40,000/-. Any ordinary prudent man would be alerted on receipt of such a notice and would have immediately reacted thereto by issuing a reply notice stating the details and also would have taken action against Bilan and would have at the same time taken steps to see that no further transactions are effected in the account so opened. Strangely enough the petitioner has not caused any reply to be issued to the notice received by him intimating him of the dishonour of Ext.P1 cheque. When he tendered evidence as PW1 he has stated that he had entrusted the notice to a lawyer for issuing a reply notice and has stated that the said lawyer is not the counsel appearing for him in court. At the same time, he does not mention the name of the lawyer with whom he entrusted the notice to issue a reply. Under these circumstances, the contention that Ext.P1 cheque is not one issued by the petitioner cannot be swallowed except with a pinch of salt.