Execution of a cheque is proven if credible evidence supports it, and the source of funds, while important, is not the sole determinant for conviction under Section 138.

O R D E R

The revision petitioner herein faced the trial before the Judicial First Class Magistrate's Court-IV,Nedumangad in ST No.116/2013 for offence punishable under Section 138 of the NI Act,initiated by the second respondent herein.

2. It was alleged that, the accused had borrowed a sum of Rs.8,50,000/- from the complainant on 20/5/2011 and towards the discharge of the liability, executed and delivered a cheque dated 1/7/2011 for a sum of Rs.8,60,000/-, inclusive of Rs.10,000/- towards the interest. The cheque was returned dishonoured on presentation. A statutory notice was issued, which was not replied.

Hence, the complaint was laid invoking Section 138 of the NI Act.

3. The trial court, on an evaluation of the documentary and oral evidence let in by the both sides, found the accused guilty, convicted and sentenced to undergo SI for one year and to pay a fine of Rs.8,50,000/-. A default sentence was also incorporated. This was carried in appeal. The appellate court, after re-evaluation of the entire evidence, concurred with the findings of the trial court regarding the conviction, but modified the sentence to S.I till the rising of the court and to pay a sum of Rs.8,50,000/- as fine with default sentence to undergo SI for six months. It was further directed that, the fine amount shall be given to the complainant as compensation under Section 357 (1)(b) of Cr.P.C. This is challenged in this revision on the ground that the courts below have committed material irregularity in the appreciation of the facts and in the application of law and, hence the impugned judgment is liable to be revised.

4. Heard both sides and examined the records.

5. There is no dispute that the parties are known to each other. The records also indicate that, both were involved in several transactions and were known to each other since long. Admittedly, the cheque was one drawn on the bank of the accused. The defence set up by the accused was that, he had not borrowed the money from the complainant nor had any reason to borrow the money. He denied the entire transaction and also execution of the cheque. It was also stated that cheque was not signed by him. According to the accused,the defacto complainant somehow or other managed to procure the cheque, which was filled up and presented to set up a false case. To prove their case,both sides relied on their oral testimony. It is pertinent to note that evidence adduced by the complainant proves the dishonour of the cheque and non payment of money. Hence, both the courts ventured into an enquiry as to whether the evidence was sufficient to prove the due execution of the cheque. It is to be noted that, there was absolutely no reasonable indication as to how the cheque of the accused reached the hands of the complainant. The vague defence was that, it was clandestinely procured by the complainant. No attempt was made by the accused to disprove the signature on the cheque. On the other hand, PW1 in his evidence had cogently deposed that the cheque was executed in his presence. This evidence has to be appreciated in the background that though a lawyer notice was issued, it was neither replied nor any objection raised denying the transaction,which was reasonably expected from an ordinary prudent man especially when he has a defence case that the cheque was a false one.

6. Learned counsel for the revision petitioner contended that,the execution of the cheque was not proved. It was further contended that, the courts below did not venture to consider the due execution of the cheque by demanding other material to prove the due execution. It was pointed out that, the source of money was not cogently proved. However, in paragraph 12 of the appellate court's judgment, the appellate court has dealt with source of money as spoken by PW1 in detail. According to PW1, he had received Rs.12 Lakhs as pensionary benefit in three installments and from that amount, Rs.10 Lakhs was paid by him to his sister. When the accused soug