The main legal point established is the requirement for credible evidence to support a defense in a case under Section 138 of the Negotiable Instruments Act.

Alexander Thomas, J.

1. The afore captioned Criminal Revision Petition has been instituted by the petitioner/accused for impugning the conviction and sentence imposed on him for the offence under Section 138 of the Negotiable Instruments Act as per the judgment dated 27/09/2012 of the Judicial First Class Magistrate Court-VIII, Thiruvananthapuram, in ST. 69/2010 as confirmed by the impugned appellate judgment dated 09/08/2016 of the Court of Additional Sessions Judge-IV, Thiruvananthapuram, in Crl. Appeal490/2012. The Trial Court had convicted the petitioner for the above said offence and that sentenced him to undergo imprisonment till the rising of the Court and to pay fine of Rs. 2,00,000/- (Rupees Two lakhs only) (which is the amount covered by Ext. P-1 cheque bearing No. 090290 dated 23/01/2008) to the complainant (PW-1) under Section 357(3) of the Cr.P.C. and in default thereof, the accused was ordered to undergo simple imprisonment for a period of 2 years. The Appellate Sessions Court had dismissed the appeal confirming both the conviction as well as the above said sentence imposed by the Trial Court. Heard Sri. D. Kishore, learned counsel appearing for the revision petitioner/accused and Sri. Saigi Jacob Palatty, learned Public Prosecutor appearing for R-1, State of Kerala. In the nature of the orders proposed to be passed in this revision, it is ordered that notice to R-2 (complainant) will stand dispensed with.

2. The case of the complainant is that the complainant and the accused were known to each other and that the accused had requested him to borrow Rs. 2 lakhs as evident from Ext. P-7 (statement of accounts of the bank account of the complainant) an amount of Rs. 2 lakhs was transferred on 15/09/2007 from the complainant's account to the bank account of the accused. Later, on demanding repayment of the said borrowed amount, the accused had issued the impugned Ext. P-1 cheque No. 090290 dated 23/01/2008 drawn on the IDBI Bank, M.G. Road, Thiruvananthapuram, in favour of the complainant and on presentation the same was dishonoured and that on receipt of Ext. P-2 Bank dishonour memo, the complainant had send Ext. P-3 statutory notice dated 30/01/2008 calling upon the complainant to make the payment and after receipt of the said notice, accused had sent Ext. P-6 reply notice giving his version as to why he is not liable to pay the said amount, etc. This resulted in the institution of the above complaint. The complainant had tendered evidence as PW-1 and had also marked Exts. P-1 to P-7 documents from his side. The accused had adduced evidence to D.W. -1 (accused), D.W. -2 (Bank Manager of the accused) and D.W. -3 (said to be a common friend of the accused and the complainant) and the defence had also marked Exts. D-1 to D-3 documents.

3. The evidence given by the complainant was in tune with the averments of this complaint. That an amount of Rs. 2 lakhs was borrowed by the accused from the complainant which the complainant had transferred to the bank account of the accused as per Ext. P-7 on 15/09/2007. It is for this liability, that the accused had subsequently executed and issued Ext. P-3 cheque dated 30/01/2008. The accused has admitted that all the entries in Ext. P-1 cheque, except the date were, written by the accused. The basic defence set up by the accused both in Ext. P-6 reply notice as well as before the Trial Court was that one Mohanan was the common friend of the accused and the complainant. That Sri. Mohanan was running a firm called "Transtap" and that the complainant had advanced the above said amount to Sri. Mohanan as mediated by the accused. That Sri. Mohanan after suffering business loss had abandoned his business. Later Sri. Mohanan was prepared to pay the above amount to the complainant but the complainant informed the accused that if the amount is shown as credited to the account of the complainant then the complainant may have some problems from the income tax authorities. Therefore the comp