The inability of a complainant to identify an accused in court does not preclude conviction under Section 138 of the Negotiable Instruments Act if other substantial evidence supports the case.

O R D E R

The revision petitioner is the accused in C.C No.2/2011 on the files of the Judicial First Class Magistrate Court, Pattambi. He was convicted by the learned Magistrate for the commission of offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for three months and fine Rs.1,50,000/- with a default clause of simple imprisonment for two months. Though the petitioner challenged the aforesaid verdict in appeal before the Sessions Court, Palakkad, the learned Additional Sessions Judge who considered the appeal, declined to interfere with the finding of conviction of the learned Magistrate. However, the tenure of simple imprisonment for three months was reduced to imprisonment till the rising of court, while retaining the fine portion as such. Aggrieved by the aforesaid verdicts of the courts below, the petitioner is here with this revision.

2. Heard the learned counsel for the revision petitioner, and the learned Public Prosecutor representing the State of Kerala.

3. The case of the complainant is that the petitioner obtained an amount of Rs.1,50,000/- from him with the offer to arrange a visa for employment abroad, but failed to honour the above assurance. When the complainant demanded that amount, the petitioner is said to have issued a cheque dated 28.05.2009 for an amount of Rs.1,50,000/- assuring that it could be encashed on presentation. However, the aforesaid cheque was dishonoured due to insufficiency of funds when it was presented for collection on 14.08.2009. Since the petitioner did not make payment of the cheque amount despite the receipt of statutory notice, the complainant had instituted the complaint before the Trial Court.

4. In the trial before the learned Magistrate, the complainant was examined as PW1, and five documents were marked as Exts.P1 to P5. The petitioner/accused did not opt to adduce any defence evidence. It is after the evaluation of the aforesaid evidence, that the learned Magistrate convicted and sentenced the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act . The main defence raised by the petitioner was that he had no acquaintance with the complainant, and that Ext.P1 cheque, on the basis of which the prosecution has been launched against him, was actually one among the signed blank cheques which he issued to a person by name Surendran of Thrissur. Thus, it was contended that the complainant had manipulated and misused Ext.P1 cheque for the institution of the criminal prosecution against him.

5. In support of the above contention, the petitioner would rely on an instance of inability of the complainant to identify him at the time of cross-examination of the complainant as PW1 before the Trial Court. It could be seen from the testimony of PW1 during cross-examination that the complainant (PW1) was asked to watch and identify the persons in the court hall and to say whether the accused is there. When the complainant said that the accused is not present, the name of the accused was called and he came from the rear side of the court hall which is said to be an area visible to the witness. When the accused entered the dock, PW1 stated that he now understood that it is the accused who is standing in the dock. According to the learned counsel for the petitioner, the above test identification carried out during the course of examination of PW1 would support his contention that the complainant had no occasion to receive Ext.P1 cheque from the petitioner. The challenge in the above regard was rejected by the Trial Court with the observation that the non-identification of the accused in the court ro