SHAJI Vs. IGNATIOUS

JUDGEMENT

(1.) Revision petitioner in Crl. R.P. No. 2587 of 2007 is the complainant and revision petitioner in Crl R.P. No. 4332 of 2006 is the accused. The revision petitioner in Crl. R.P. No. 2587 of 2007, hereinafter referred to as the complainant, lodged the complaint before Judicial First Class Magistrate - I, Thrissur, contending that revision petitioner in Crl. R.P. No. 4332 of 2006 hereinafter referred to as the accused was entrusted with gold to prepare gold ornaments and he failed to account 500 gms of gold so entrusted and in the year 2000 accused along with his mother and two sisters executed the promissory note for Rs. 2,00,000/- on 8.1.2000 in favour of the complainant treating the value of 500 gms of gold to be returned by the accused calculated Rs. 400/- as per gram as the consideration and later towards repayment of the amount covered by the promissory note accused issued Ext.P1 cheque dated 8.7.2002 for Rs.1,00,000/- drawn in his account maintained in Ammadam Service Co-Operative Bank Limited. When the complainant presented the cheque for encashment through his account in Koorkkanchery branch of Thrissur Urban Co-Operative Bank Ltd., Ext.P1 cheque was dishonored for want of sufficient amounts. The complainant sent Ext.P4 notice to the accused, demanding the amount covered by the dishonoured cheque. Inspite of service of intimation, accused did not receive the notice and did not pay the amount and thereby committed the offence under Section 138 of the Negotiable Instruments Act. Magistrate took cognizance of offence as C.C. No. 978 of 2002. Accused pleaded not guilty. Complainant was examined as PW1 Exts.P1 to P6 were marked on his side. Accused was not examined. The learned Magistrate on the evidence found the accused guilty. He was convicted and sentenced to simple imprisonment for one year and a compensation of Rs. 20,000/- and in default, simple imprisonment for one month. Accused challenged the conviction before Sessions Court, Thrissur in Crl. Appeal No. 698 of 2005. The learned Sessions Judge on re-appreciation of evidence confirmed the conviction but reduced the substantive sentence to simple imprisonment for 15 days and confirmed the Crl. R.P. No. 2587 of 2007 and compensation. The accused is challenging the conviction and sentence in Crl. R.P. No. 4332 of 2006. Contending that Sessions Judge while reducing the substantive sentence should have enhanced the compensation for the amount covered under Ext.P1 cheque, complainant filed Crl. R.P. 2587 of 2007.

(2.) The learned Counsel appearing for the revision petitioner in both the cases were heard.

(3.) The argument of the learned counsel appearing for the accused is that neither the trial court nor the appellate court appreciated the evidence in the proper perspective. Relying on the decision of the apex court in Krishna Janardhan Bhat v. Dattatraya G. Hedge, 2008 2 SCC(Cri) 166 Narendra Singh and another v. State of Madhya Pradesh, 2004 10 SCC 699, Kamala v. Vidhyadharan, 2007 3 KerLT 861 , it was argued that burden is on the complainant to prove the ingredients of an offence under Section 138 of the Negotiable Instruments Act and the burden on the complainant is to prove the offence beyond all reasonable doubt and burden of the accused is only to rebut the presumption provided under Section 139 of Negotiable Instruments Act and it could be rebutted by preponderance on probability and this cardinal principle was omitted to be taken note of by the courts below. The learned counsel argued that though it was the case of the complainant that gold was entrusted to the accused for making ornaments on various occasions and he did not account for 500 grams and therefore there was a settlement of accounts where under the gold to be returned by the accused was fixed at 500 gms and assessing the value per gram at Rs.400/-, liability was fixed at Rs.2,00,000/-, there is absolutely no evidence to prove either that gold was entrusted or that the accused failed to account 500 gms of gold or that the account was settled in 2000 as claimed by the complainant. It was argued that in the absence of evidence to prove that there was a legally recoverable debt, complainant is not entitled to succeed in the case at all. The learned counsel also argued that evidence of PW1, is contrary to the pleadings and the presumption provided under Section 139 of Negotiable Instruments Act could be drawn only on establishing execution of Ext.P1 cheque and as against the allegation in Ext.P4 notice that the accused wrote and signed and handed over the cheque to the complainant, which was reiterated in the complaint, at the time of cross examination, evidence of PW1 was that he cannot say who had written Ext.P1 cheque and when accused disputed execution of the cheque, the presumption provided under Section 139 cannot be drawn an execution was not proved. The learned counsel argued that in the light of this evidence of PW1 conviction is not sustainable.