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TMI Blog2020 (6) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... nant) issued registered notice for which a reply was sent raising untenable contentions. Since the amount was not paid within the statutory period, the complaint was filed. 3. The complainant got himself examined as PW1 and Exts.P1 to P6 were marked from the side of the complainant. The accused was examined as DW1 and Exts.D1 to D8 were marked from ohis side. Thereafter on hearing both sides, the trial court found the accused guilty and sentenced him to undergo simple imprisonment for six months and to pay compensation of Rs. 1,00,000/- to PW1 in default to undergo simple imprisonment for two months. Against which Crl.Appeal 205/2004 was filed and the V Additional Sessions Court, Ernakulam by the impugned judgment, confirmed the conviction and sentence was modified reducing the substantial sentence to three months. 4. Aggrieved by the same, accused came up in revision for the various grounds stated in the memorandum of revision. 5. According to the learned counsel for the accused, the defence of the accused was that he borrowed Rs. 5000/- on 17.3.1999 and Rs. 10,000/- on 14.10.1999 and that amount with interest was re-paid on 2.3.2001. The above fact is proved through Ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owal of Rs. 5000/- on 17.3.1999 and Rs. 10,000/- on 14.10.1999 and receipt of blank signed cheques, stamp paper, signed white paper etc, by the complainant from him. It is also contended that in spite of repayment of the entire amount, the cheques were not returned and in Ext.D7 notice it is stated that the complainant is not entitled to keep the document obtained from him and to present the cheques for encashment. The learned counsel would also contend that in Ext.D6 the details regarding the purchase of stamp paper and Rs. 50/- spent by him had also been entered. So according to the learned counsel, even prior to the initiation of the proceedings against him by the complainant, he had sent Ext.D7 notice and produced Ext.D6 account book substantiating his contention. 10. The learned counsel would also took my attention to the cross-examination of PW1 wherein when a specific question was put to him with regard to the availing of Rs. 5000/- on 17.3.1999 and Rs. 10,000/- on 14.10.1999, the complainant replied that money was borrowed but he did not remember the amount and date. Further he produced the counter-foil of the cheque bearing No.278421 as Ext.D1 and also Ext.D2 the counter- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evidence adduced from the side of the complainant and the accused in this case, what could be deducted is that the accused unlike in other cases, moved a step further and created documents so as to support the contention put forward by him. All the documents produced from his side are self serving documents and could be created by himself without intervention of anybody. There is no convincing materials whatsoever to prove that Ext.D6 account book kept by him is in the regular course of business so as to make it admissible in evidence. So also Ext.D7 notice bears the very same date of Ext.P1 cheque. That also leads to an inference that he moved a step forward to defend his case before the presentation of the cheque by the complainant. So no reliance can be placed on Exts.D1 to D7 and evidence of DW1. 16. The learned counsel also contended that in the lawyer notice or in the complaint, no details regarding the transaction between the parties had been given and even though Ext.D6 notice was sent prior to the issue of Ext.P4 notice by the complainant, there is no whisper with regard to the allegation in Ext.D7 in Ext.P4 and he has also not denied the allegations in Ext. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant or that the accused issued cheque to the complainant and the complainant is bound to adduce evidence to prove execution of the cheque. 21. In this case it is to be noted that the case of the accused is not of total denial. He has set up a defence that the amount borrowed is Rs. 5000/ and Rs. 10000/ as narrated earlier and that amount has been repaid and in spite of that, complainant is keeping the blank cheques. The said contention has already been found against. So this is a case in which complainant through PW1 and Ext.P4 cheque could establish the issue of cheque by the accused. Once the issue of cheque is proved, the presumption under Sec.139 of the NI Act comes to the rescue of the complainant. The position is well settled as per the dictum laid down in Hamsa Mussaliar v. Hamsa Khan and another (2014 (4) KHC 883) wherein it has been held that once execution of cheque is proved by the complainant, the burden is heavy on the accused to prove the circumstances under which cheque reached the hands of complainant. It is also held, failure of accused to prove the circumstances cast a serious doubt on the defence case of the accused and court would be justified in believing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the bank for 'stop payment' also. In this context the learned counsel took may attention to Vasanthakumar T. v. Vijayakumar (2015 (4) KHC 4332). On going through the above decision it appears that the facts of that case is almost identical to the fact situation of the case in hand. In that case also, the cheque was dishonoured with remarks 'stop payment' and the case of the accused was that cheque was given long back as a security for a loan. Though loan was repaid cheque was used to implicate the accused. In that context, it has been held that when cheque as well as signature had been accepted by accused, presumption under Sec.139 would operate. It is also held that when cheque was dishonoured due to stop payment, it is clear that accused had knowledge of cheque being presented to bank. In the absence of further evidence, such story of accused cannot be believed and conviction is said to be proper. 25. In this case also the cheque was dishonoured for the reason of stop payment by the accused and he admitted the signature in Ext.P1 cheque .Though accused set up a case that it has been issued while availing Rs. 5000/- and 10000/, that had already been found agai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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