V I THOMAS Vs. P C THOMAS

JUDGEMENT

(1.) This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act.

(2.) The cheque is for an amount of Rs.2,31,500/-. The signature in the cheque is admitted. Notice of demand though duly received and acknowledged did not evoke any response. The complainant examined himself as PW1 and proved Exts.P1 to P8. It would appear that the crux of the contention raised by the accused is that there has been discharge of an amount of Rs.1,90,000/- after receipt of the notice. The complainant admitted partial discharge but contended that only an amount of Rs.1,40,000/- has been paid. But the crux of the issue before the court below was whether an amount of Rs.41,500/-, as contended by the petitioner or an amount of Rs.91,500/- as contended by the complainant was actually due. The courts below considered the materials available on record and chose to accept and act upon the oral evidence of PW1. They did not choose to rely on the oral evidence of DW1 about the discharge without voucher of the amount of Rs.1,90,000/-. The plea that there was discharge of an amount of Rs.1,40,000/- only was accepted and the court directed payment of the balance amount of Rs.91,500/-. The petitioner claims to be aggrieved by the impugned concurrent judgments. The appellate court had indulgently modified the sentence into one of imprisonment till rising of court and to pay an amount of Rs.91,500/- and in default to undergo S.I for a period of one month.

(3.) Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned concurrent judgments, the learned counsel for the petitioner first of all contends that the courts below have erred perversely in coming to a conclusion that only an amount of Rs.1,40,000/- has been paid. In fact, an amount of Rs.1,90,000/- was paid. In the nature of the evidence that is available, I find absolutely nothing to interfere with the concurrent findings recorded by the courts below that only an amount of Rs.1,40,000/- has been paid. The oral evidence of DW1 unsupported by any voucher for such alleged discharge was, according to me, rightly not accepted by the courts below. At any rate, sitting as the third court - of revision exercising supervisory and correctional jurisdiction, I find no reason to interfere with the concurrent conclusion that the evidence of PW1 has to be preferred to that of DW1 on the question of the quantum of discharge.