KOMALAM GOPI Vs. T.K. MOHANKUMAR AND OTHERS

JUDGEMENT

(1.) This revision is by the accused in a case taken cognizance of on the basis of a private complaint alleging offences punishable under Sec. 138 of the Negotiable Instruments Act. The trial court convicted the accused and sentenced her to undergo rigourous imprisonment for six months and to pay fine of Rs. 60,000.00. The court of session allowed her appeal on the question of sentence, modified it and sentenced her to pay a fine of Rs. 60,000.00, in default of which, to undergo simple imprisonment for two months. Out of the fine amount collected, an amount of Rs. 45,000.00 was to be paid to the complainant as compensation.

(2.) The allegation against the petitioner was that she and her husband informed the complainant that employment opportunity is available in the Cochin Port Trust that could be obtained for her, for which purpose, an amount of Rs. 45,000.00 has to be paid to the accused. Believing those words, the complainant parted with that amount and paid it to the accused and her husband by borrowing it from the relatives of the complainant. No job was secured as agreed. The complainant wanted return of money. With the intervention of mediators, a cheque dated 31.10.1992 for an amount of Rs. 45,000.00 was issued by the accused in favour of the complainant. On presentation, that cheque was returned with the endorsement "payment stopped by the drawer" and that on enquiry, it was revealed that the accused did not have sufficient funds in her account to honour the cheque. Though the accused received the statutory notice, a reply was sent stating only that the cover contained only a blank paper. Alleging non-payment of the fund covered by the cheque, a complaint was instituted. The Additional Chief Judicial Magistrate took cognizance of the sworn statement of the complainant on record. At trial, the complainant gave evidence as PW1. PW2 spoke of the entrust of money by the complainant to the accused. PW3, an officer of the bank, spoke in relation to the cheque and its dishonour and also that from Ext.P5, the balance out standings in the account of the accused was only Rs. 50.00 and that the accused had written to the bank stopping payment of Ext. P1 cheque.

(3.) The essential ingredients of the issuance of the cheque, its presentation and dishonour not being in dispute and having been proved on the basis of legal evidence, the consideration of the court of first instance focused on the defence version regarding the transaction. DW1, the Assistant Manager of the Syndicate Bank, Kalamassery where the petitioner had the S.B. Account; DW2, one Watson Titus; DW3, one Lalan; DW4, Gopi, husband of the accused and DW5, the accused were examined on the side of the defence. The version attempted to be projected by the defence was that the account itself was opened at the instance of the complainant and utilising the amount given by him on the basis of the evidence of PW4, the husband of the accused and DW5, the accused. The court of first instance, as also the court of session, concluded that the receipt of the amount of Rs. 45,000.00 and the issuance of the cheque by the complainant to discharge that liability cannot be disputed.