Failure to provide a valid defense and failure to raise objections at the time of admission of evidence can lead to the confirmation of conviction.

V. Ramkumar, J.

1. In this Revision filed under S.397 read with S.401 CrPC the petitioner who was the accused in CC No. 97 of 2005 on the file of the JFCM Kayamkulam challenges the conviction entered and the sentence passed against him for an offence punishable under S.138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act').

2. Heard both sides.

3. The learned counsel appearing for the revision petitioner contended that Exts. P4 to P6 have no inter relationship to each other and they do not evidence the issuance or the receipt of the statutory notice under S.138 of the NI Act. They are mere photocopies and the unclaimed cover in which the notice was allegedly sent has not been produced along with the complaint. According to the learned counsel, without laying the foundation for receipt of secondary evidence, such documents should not have been permitted to be marked in evidence and Exts. P4 to P6 cannot be looked into to hold that the cause of action for launching the prosecution has been proved. He also argued that in the absence of an order by the Magistrate dispensing with the attendance of the complainant, the complainant ought to have been present the Court and should have offered himself for cross examination. The complaint was filed by the complainant himself and the sworn statement was given by the complainant and it was during the course of the trial, that is, on 17/10/2005 that the power of attorney entered appearance consequent on a petition filed by the complainant. Hence, according to the learned counsel for the revision petitioner the prosecution under S.138 of the NI Act are unsustainable.

4. I am afraid that I cannot agree with the above submissions. Exts. P4 to P6, no doubt, are photocopies of the statutory notice dated 30/12/2004, the postal receipt and the letter sent by the complainant's counsel to the accused in his address at Guru Kripa, Factory Junction, Kayamkulam. But all these documents were marked without demur. During his examination under S.313 CrPC pointed questions were put to him that Ext. P2 cheque was issued by him for the sum of Rs.1,50,000/- borrowed by him from the complainant. He had no answer. Again he was asked as to what he had to say with regard to the evidence of the complainant examined as PW 1 that Ext. P2 cheque when presented before bank was dishonoured for the reason that there was no sufficient funds in his account. To this question also he remained silent without giving any answer. The next question put to him was that the evidence of PW 1 would go to show that Exts. P4 to P6 are documents to indicate the dishonour of the cheque and the issuance of notice. Again he had no answer. He was further confronted by the Trial Court with the question that the evidence of PW 1 indicated that notice of dishonour was issued to him and he did not pay the amount. To that question also he had no answer. Finally, he was asked as to whether he had anything else to state before Court. His only answer was that he has repaid the entire money to the complainant. He had no case before the Court that the original transaction was a chitty transaction or that he happened to give a signed blank cheque to the complainant and the same was dishonestly converted into Ext. P2 cheque. It was in the face of this evidence that the Courts below unhesitatingly rejected his defence and convicted him of the offence punishable under S.138 of the NI Act. In the light of a recent decision of the Apex Court reported in 2004 KHC 1478 : AIR 2004 SC 4082 : 2004 (7) SCC 107 that where secondary evidence is adduced by a party without laying the foundation for the same, objection must be taken at the time of admission and not at a later stage, the present contention is clearly unsustainable. All that apart, as indicated earlier, the revision petitioner had no such defence when he was examined under S.313(1)(b) CrPC. He had no explanation either as to how the cheque leaf issued by the drawee bank w