The affirmation of a conviction under Section 138 of the Negotiable Instruments Act due to insufficient rebuttal evidence by the accused.

O R D E R

The concurrent conviction of the petitioner for the commission of offence under Section 138 of the Negotiable Instruments Act,1881(in short, ‘NI Act’) of the Additional Chief Judicial Magistrate Court, Thalassery, and the Additional Sessions Court (Adhoc-II), Thalassery, in C.C.No.6/2002 and Crl.A.No.460/2002, respectively, are under challenge in this revision petition. The Trial Court sentenced the petitioner to simple imprisonment for one year. The Appellate Court reduced the term of simple imprisonment as imprisonment till the rising of the Court with a further direction to pay compensation of Rs.75,000/- to the complainant under Section 357 (3) of the Code of Criminal Procedure, 1973 . A default clause of simple imprisonment for two months was also provided by the Trial Court for non-payment of compensation.

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

3. The Trial Court relied on the evidence adduced by the complainant through his oral testimony as PW1, and the documents marked as Exts P1 to P9, for arriving at the finding that the petitioner committed the offence under Section 138 of the NI Act. As regards the defence evidence of the petitioner by way of his oral testimony as DW1, the Trial Court held that it is not sufficient to rebut the presumption under Section 139 of the NI Act, which the complainant could successfully establish. The Appellate Court made a re-appraisal of the aforesaid evidence and concurred with the finding of the learned Magistrate that the complainant has successfully established the offence under Section 138 of the NI Act alleged against the petitioner. The Appellate Court has also rightly modified the sentence portion by limiting the imprisonment awarded by the Trial Court to imprisonment till the rising of the Court, and ensuring that the loss sustained by the complainant due to the dishonour of the cheque is mitigated by the payment of compensation of Rs.75,000/- by the petitioner. There is absolutely no reason to interfere with the findings of the Appellate Court in the above regard. Needless to say, the revision petition can only fail.

In the result, the revision petition is hereby dismissed, upholding the findings of the Additional Sessions Court (Adhoc-II), Thalassery, in Crl.A.No.460/2002. It is made clear that while enforcing the direction of the Appellate Court to make payment of compensation to the complainant, the Trial Court shall verify and adjust any amount which the petitioner had already deposited as pre-condition while admitting the appeal and revision. The petitioner is also afforded with time till 06.04.2026 to surrender before the Trial Court to undergo imprisonment till the rising of the Court and to make payment of compensation, as directed in this order.

(Sd/-)