The court clarified the necessity for adequate evidence to establish the execution of a cheque under Section 138 of the Negotiable Instruments Act.

ORDER

This revision is directed against the judgment rendered by the Additional Sessions Court, Thalassery, in Crl.A.No.675 of 2001, confirming the conviction of the petitioner for the commission of the offence under Section 138 of the Negotiable Instruments Act , and awarding a modified sentence of imprisonment till the rising of court with a direction to pay compensation of Rs.1 lakh to the complainant / 1^st respondent. The petitioner had faced trial before the Additional Chief Judicial Magistrate Court, Thalassery, in C.C.No.523 of 2001 in a complaint preferred by the 1^st respondent, who alleged that a cheque, which the petitioner had executed and issued for the repayment of an amount of Rs.1 lakh, was dishonoured due to the insufficiency of funds in the account of the petitioner, and that he did not care to make payment of the cheque amount despite the receipt of the statutory notice. The learned Magistrate after analysing the evidence adduced by the Power of Attorney Holder of the 1^st respondent as PW1, and the documents marked as Exts.P1 to P7, came to the conclusion that the petitioner committed the offence under of the , as alleged in the complaint. Accordingly, the learned Magistrate sentenced the petitioner to undergo Simple Imprisonment for one year. It is in the appeal preferred against the aforesaid verdict, that the learned Additional Sessions Judge confirmed the conviction and modified the sentence by reducing the imprisonment as imprisonment till the rising of court and directing the payment of compensation of Rs.1 lakh to the complainant under Section 357 (3) Cr.P.C.

2. Though notice was duly served on the 1^st respondent /

complainant, he did not choose to enter appearance or to advance any arguments.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

4. As already stated above, the complainant / 1^st respondent had adduced evidence before the Trial Court through his Power of Attorney Holder. The aforesaid Power of Attorney was neither produced before the Trial Court nor marked in evidence.

PW1, who gave evidence before the Trial Court for and on behalf of the complainant, is said to be the brother of the complainant. It is argued by the learned counsel for the petitioner that the evidence adduced by PW1 is hopelessly insufficient to establish the execution and issuance of Ext.P1 - cheque by the petitioner. It is further pointed out by the learned counsel for the petitioner that right from the very beginning, the definite case of the petitioner is that a signed blank cheque, which the complainant / 1^st respondent managed to obtain at the time when an amount of Rs.10,000/- was advanced to the petitioner, has been misused and manipulated to make it appear that it was a cheque for an amount of Rs.1 lakh executed and issued by the petitioner. According to the learned counsel for the petitioner, since the evidence adduced by PW1 is not sufficient to establish the execution of Ext.P1 - cheque by the petitioner, the courts below went wrong in arriving at the findings that the petitioner committed the offence under Section 138 of the Negotiable Instruments Act . The learned counsel for the petitioner has brought to the notice of this Court the entire testimony of PW1 and pointed out that it is crystal clear from the aforesaid evidence that there was no occasion for PW1 to witness the execution and issuance of Ext.P1 - cheque.

5. In the chief examination, PW1 has stated that the petitioner owed an amount of Rs.1 lakh to the complainant and that Ext.P1 - cheque was issued on 20.08.1999 towards the repayment of the aforesaid amount. However, PW1 has not stated in his chief examination that he had witnessed the execution and issuance of Ext.P1 - cheque. In cross-examination, PW1 has stated that