The judgment reaffirmed the presumptive liability under Section 138 of the Negotiable Instruments Act, reiterating the burden of proof lies on the accused to rebut claims of cheque dishonor.

ORDER

1.The revision petitioner was convicted by the Judicial Magistrate of the First Class, Kayamkulam in C.C.No.93 of 2007 on his file for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for three months and to pay Rs.12,000/- as compensation to the second respondent under Section 357 (3) of the Code of Criminal Procedure . In Crl.A.478 of 2008, the Additional Sessions Judge, Fast Track (Ad-hoc), Mavelikara, while confirming the conviction, reduced the substantive sentence to one of imprisonment till rising of the court. The amount of compensation was reduced to Rs.10,000/-, the cheque amount, with a default sentence of simple imprisonment for one month.

Now this revision.

2.Having heard the learned counsel for the revision petitioner and perusing the judgments of the courts below, I find that the second respondent, who was examined as P.W.1, had succeeded to establish that on 5.10.2006, the revision petitioner borrowed Rs.10,000/- and in discharge of the liability, Ext.P1 cheque dated 5.11.2006 drawn on Puthuppally Service Co-operative Bank was issued and that when Ext.P1 was sent for collection, it was returned dishonoured for insufficiency of funds, as evidenced by Ext.P2 memo. Though a lawyer notice, copy of which was marked as Ext.P3, was caused demanding discharge of the liability and it was acknowledged by the revision petitioner, as evidenced by Ext.P5 dated 9.12.2006, the liability was not discharged. On the other hand, the revision petitioner caused a reply stating that the revision petitioner borrowed only Rs.2,000/- in 2002 and paid back a sum of Rs.3,700/-. The revision petitioner had advanced such case while questioning under Section 313 Cr.P.C also. Curiously, no evidence was adduced in support of such a plea.

3.According to the learned counsel for the revision petitioner, the second respondent has no consistent case. In the complaint it was stated that the cheque was issued on 5.11.2006 and later the complaint was amended to the effect that the date of issuance of the cheque was on 5.10.2006. It indicates that the complainant has no consistent case. The fact that a wrong date was mentioned in the complaint regarding the issuance of the cheque and it was subsequently corrected when the mistake was noticed, is not at all a reason to disbelieve P.W.1. The revision petitioner had admitted the delivery of the cheque. But his contention is that it was delivered blank at the time when Rs.2,000/- was borrowed. No supporting evidence was let in. In the absence of any rebuttal evidence on the side of the revision petitioner, the evidence of P.W.1 remains uncontroverted. The evidence of P.W.1 is also supported by the presumptions under Sections 118 and 139 of the Negotiable Instruments Act . The statement of the revision petitioner when questioned under Section 313 Cr.P.C. or in the reply notice is not at all sufficient to rebut the presumptions. The revision petitioner could not even make out a case of preponderance of probability. The courts below had correctly analysed the evidence of P.W.1, believed him and arrived a finding of guilt. I find no reason to interfere with the concurrent finding of guilt.

The conviction is based upon cogent evidence.

4.The appellate court was very lenient in reducing the sentence to one of imprisonment till rising of the court. It had appropriately reduced the compensation amount to the cheque amount. The sentence also requires no interference.

In the result, this revision petition fails. Accordingly it is dismissed. The revision petitioner is granted six months' time to remit the compensation. Till then, the bail bond executed by him shall remain in force.

P.S.Gopinathan, Judge.

sl.