A defense plea of discharge in cheque dishonor cases must be substantiated with credible evidence directly connecting to the specific transaction at issue.

O R D E R

The first respondent herein prosecuted the revision petitioner in C.C.No.438/2003 on the file of the Judicial Magistrate of the First Class, Kayamkulam accusing offence under Section 138 of the Negotiable Instruments Act based upon Exhibit P1 cheque dated 25/10/2002 for Rs.3,80,000/-.

2. Since the revision petitioner pleaded not guilty, he was sent for trial. On the side of the first respondent, PWs 1 and 2 were examined. Exhibits P1 and P6 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence and advanced a plea of discharge. In support of that plea, DWs 1 and 2 were examined. Exhibit X1 and X2 were marked. The trial court on appraisal of the evidence arrived at a finding of guilty. Consequently, the revision petitioner was convicted and sentenced to simple imprisonment for one year with direction to pay Rs.3,80,000/- as compensation to the first respondent.

3. Aggrieved by the above conviction and sentence, he preferred Crl. Appeal No.153/2005 before the Additional Sessions Judge, Mavelikara. By the impugned judgment dated 5/4/2006, the Additional Sessions Judge, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above judgment in appeal, this revision petition is preferred.

4. I have heard Adv. Smt. Sabeena Jayan, the learned counsel appearing for the revision petitioner and Adv. Smt. M.N.Anitha, the learned counsel appearing for the first respondent. Perused the judgments and the relevant documents.

5. The execution of Exhibit P1 cheque, the dishonouring of the same, issuance of notice demanding the discharge of the liabilities and failure to discharge the liability are admitted. Plea is one of discharge. In Exhibit P6 reply also the defence advanced is discharge. That was also advanced before the trial court. The discharge plea is basing upon Exhibit D1 demand draft. Admittedly, Exhibit D1 is dated 31/1/2001. Exhibit P1 cheque being dated 25/10/2002, prima facie the plea of discharge is not at all convincing. In cross-examination PW1 had admitted that the revision petitioner used to borrow and repay. Exhibit D1 was not confronted to PW1. Therefore, no reliance can be given to Exhibit D1 to support the plea of discharge. As contended by the first respondent, Exhibit D1 might be relating to earlier transactions. It can never be in relating to a subsequent transaction. The courts below were right in rejecting the plea of discharge and coming to a conclusion of guilty. The conviction under challenge is based upon cogent evidence and requires no interference.

6. Taking into account that there were various money transactions between the revision petitioner and the first respondent and that the liability arising out of other transactions were cleared by the revision petitioner and that the revision petitioner and the first respondent were on cordial terms for a long time, I find that the revision petitioner is entitled to a little leniency in sentence and that a sentence of imprisonment till the rising of the court and a fine of Rs.5,000/- with order to pay compensation would meet the ends of justice.

In the result, this revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till the rising of the court and a fine of Rs.5,000/-(five thousand only) with default sentence of simple imprisonment for six weeks. The order to pay compensation as ordered by the courts below with a default sentence of simple imprisonment for six months is sustained. The revision petitioner is directed to surrender before the trial court which shall see the execution of sentence and report compliance. The revision petitioner is granted two months time to remit the compensation.