The court affirmed that the complainant's reliable testimony on the dishonoured cheque suffices to uphold a conviction under Section 138 of the NI Act, emphasizing the low threshold for evidentiary support in such cases.

ORDER :

A. BADHARUDEEN, J.

1. This Criminal Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 , challenging judgment in Crl.A.No.69/2018 on the files of the Additional Sessions Court – IV, Thalassery, dated 17.10.2023, arising out of judgment dated 26.03.2018 in S.T.C.No.181/2013 on the files of the Chief Judicial Magistrate Court, Thalassery. The revision petitioner herein is the accused and the 1^st respondent herein is the complainant.

2. Heard the learned counsel for the revision petitioner/accused, the learned counsel appearing for the 1^st respondent/complainant and the learned Public Prosecutor.

3. I shall refer the parties in this Criminal Revision Petition as to their status before the trial court as ‘complainant’ and 'accused'.

4. Pursuant to dishonour of cheque, dated 02.11.2013 for Rs.8 Lakh, alleged to be borrowed by the accused from the complainant, prosecution was initiated alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the NI Act’ hereinafter), by the accused.

5. The learned Magistrate took cognizance of the matter and recorded evidence by following summary trial. PW1 was examined and Exts.P1 to P8 were marked on the side of the complainant. No defence evidence was adduced by the accused.

6. On evaluation of the evidence available, the Magistrate Court found that the accused committed offence punishable under Section 138 of the NI Act and accordingly, the trial court convicted and sentenced the accused as under:

“.........the accused is convicted and sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.10,00,000/- for offence U/s.138 of the Negotiable Instruments Act and in default of payment of fine the accused shall undergo simple imprisonment for a further period of two months. If fine is realised that shall be released to PW1, the complainant U/s. 357 (1)(b) of Cr.PC as compensation.”

7. Although Crl.A. No.69/2018 had been preferred, the learned Additional Sessions Judge allowed the appeal in part by modifying the sentence while sustaining the conviction.

8. While impeaching the veracity of the concurrent verdicts of the conviction, the learned counsel for the accused argued that in the instant case, the complainant failed to prove the transaction as to the borrowing of Rs.8 Lakh, as alleged, with the support of any documentary evidence apart from the cheque or by the evidence of any other witness to the transaction. According to the learned counsel, the case of the accused is that he borrowed Rs.8 Lakh from one Ibrahim Haji and had entrusted four cheques, one of which was allegedly misused for the purpose of this case. It is further argued that an initial burden is cast upon the complainant to prove the transaction which led to the execution of the cheque, in order to attract the presumptions under Sections 118 and 139 of the NI Act. The decision of this Court in Padma Conductors Pvt. Ltd. v. MIRC Electronics reported in [2024 (1) KHC 531] has been placed in this regard. According to the learned counsel, the accused did not borrow any amount from the complainant or the accused never issued a cheque in the name of the complainant and therefore, the trial court as well as the appellate court wrongly found that the accused committed offence punishable under Section 138 of the NI Act.

9. Per contra, the learned counsel appearing for the 1^st respondent/complainant argued that in this case, the evidence available is confined to that of PW1. In categorical terms, PW1 deposed that the accused, who had borrowed Rs.8 Lakh, issued Ext.P1 cheque upon demand for repayment of the said sum.