VIJAYA KUMARI vs STATE OF KERALA

The revision petitioner was convicted and sentenced by the courts below under Section 138 of the Negotiable Instruments Act (for short ''the

N.I.Act'').

Heard.

The learned counsel for the revision petitioner has submitted that the evidence of PW1 and PW2 is not sufficient to prove the execution of

Ext.P1 cheque by the revision petitioner and hence the conviction and sentence passed by the courts below, cannot be sustained. It is stated in the

complaint that the revision petitioner borrowed an amount of Rs.2,00,000/- from the complainant on 2.9.2006 and simultaneously, handed over a

cheque to the complainant. The revision petitioner had a contention that the husband of the revision petitioner was conducting a chitty, in which

PW1 was a subscriber. In connection with the amount to be paid to PW1 in connection with the said chitty, the husband of the revision petitioner

handed over the cheque in question to PW1 as a blank signed cheque. Since the husband of the revision petitioner could not pay the amount due

to PW1, the property in the name of the revision petitioner and her husband was alienated to the daughter of PW1. However, the cheque was not

returned to the revision petitioner. Thereafter, the said cheque had been mis-utilised by the complainant to file the present complaint.

In the complaint, it is averred that the revision petitioner wrote the amount and the date in the cheque, besides putting her signature therein. In

the examinationin- chief of PW1, PW1 reiterated the same contention. However, in the cross-examination, PW1 initially stated that the cheque

was filled up and signed by the revision petitioner in the presence of PW1. However, subsequently, PW1 stated that the revision petitioner brought

a filled up cheque and thereafter, she affixed her signature in the said cheque in the presence of PW1. PW2 was a witness to the transaction. PW2

stated in his examination-in-chief that the revision petitioner filled up the cheque and signed the same in the presence of PW2. However, in cross-

examination, PW2 stated that PW2 had seen only the signing of the cheque by the revision petitioner. Thus, the evidence of PW1 and PW2 would

show that they are not having a consistent version with regard to the execution of Ext.P1 cheque by the revision petitioner.

The capacity of PW1 to advance the amount was also challenged by the defence. PW1 stated that PW1 borrowed the money from one of his

relatives to give the same to the revision petitioner. However, the said relative was not examined. The above evidence of PW1 would show that

PW1 was not having the amount covered by the cheque with him, to lend the same to the revision petitioner. In the said circumstances, it was his

duty to examine the relative, from whom the amount was borrowed by him, to support the veracity of his testimony. At this juncture, it is also

relevant to note that PW1 admitted that the revision petitioner and her husband together sold their property in favour of the daughter of PW1. The

contention of the revision petitioner is that the said sale was in connection with the amount to be paid by the husband of the revision petitioner to

PW1 in connection with the chitty transaction. Even though PW1 admitted the sale of the property, PW1 did not state much about the same when

PW1 was cross-examined.

The evidence of PW1 and PW2 with regard to the execution of Ext.P1 cheque does not inspire confidence. The capacity of PW1 to advance

the amount covered by Ext.P1 cheque is also doubtful. The above facts coupled with the alienation of the property of the revision petitioner and

her husband to the daughter of PW1 would also lend support to the contention of the revision petitioner. Having gone through the relevant inputs, I

am of the view that the contention of the revision petitioner appears to be probable. In the said circumstances, it cannot be said that the

complainant could establish that the revision petitioner executed Ext.P1 cheque as contemplated under Section 138 of the N.I. Act and

consequently, the conviction and sentence passed by the courts below cannot be sustained.

In the result, this revision petition stands allowed, setting aside the conviction and sentence passed by the courts below under Section 138 of the

N.I. Act and the revision petitioner stands acquitted for the said offence. The bail bond of the revision petitioner stands discharged.

Needless to state that if the revision petitioner had already deposited any amount before the trial court, pursuant to the direction of this court, the

revision petitioner is entitled to get reimbusement of the said amount from the trial court.