K.P. PREM SUNDAR Vs. P.P. DARAR

JUDGEMENT

(1.) The accused in a prosecution for the offence under Sec.138 of the N.I.Act is the revision petitioner, since he is aggrieved by the order of conviction and sentence imposed against him.

(2.) The case against the revision petitioner/accused is that he had borrowed a sum of Rs. 50,000/- from the complainant during the year 1998 and towards the discharge of the said amount, the accused issued Ext. P1 cheque for a sum of Rs. 50,000/- dated 31.3.1998 and when the said cheque presented for encashment, it was dishonoured for want of sufficient fund in the account maintained by the accused. Thereafter, a lawyer notice was caused to sent addressing the revision petitioner and demanding him to clear the above debt as per the dishonoured cheque. But he has not paid the amount. Therefore, according to the complainant,the accused/revision petitioner has committed the offence under Sec.138 of the N.I.Act. With the above allegation the complainant preferred a formal complaint in the court of Judicial First Class Magistrate, Kuthuparamba upon which cognizance was taken under Sec.138 of the N.I.Act and there upon instituted C.C. No. 245/2002. During the trial of the case, from the side of the complainant, PWs.1 and 2 were examined and Exts.P1 to P6 were produced and marked. From the side of the defence though Exts.D1 and D2 were produced, no witness was examined. On the basis of the above evidence and materials, the trial court has found that accused issued Ext.P1 cheque to discharge the legally enforceable liability and accordingly found that the accused is guilty under Sec.138 of the N.I.Act. Thus, the trial court convicted the revision petitioner under Sec.138 of the N.I.Act and sentenced him to undergo simple imprisonment for eight months and to pay a fine of Rs. 5,000/- in default to undergo simple imprisonment for three months. It is ordered that if the amount is realized, the same shall be given to the complainant, PW2 under Sec.357(3) of Criminal Procedure Code Aggrieved by the above order of conviction and sentence, the revision petitioner/accused had preferred an appeal and by judgment dated 26.3.2010 in Crl. A.No. 403/2003, the Court of Sessions, Thalassery allowed the appeal only in part confirming the conviction but the sentence was reduced till the rising of the court and imposed a fine of Rs. 50,000/- with default sentence of three months. It is the above conviction and sentence are challenged in this revision petition.

(3.) I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below.