TMI Blog2022 (6) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... mprisonment upto two years or with fine upto twice the amount of the cheque or with both. The amount covered by Ext. P1 cheque being Rs. 5,00,000/-, the trial court is empowered to direct payment of compensation, double that amount. Rs. 7,02,500/- is the fine imposed in the case on hand and the trial court is justified in doing so. The appellate court has modified the sum to Rs. 5,00,000/-, but, without stating any reasons for doing so. The modification made by the appellate court in the fine amount is set aside. The sentence imposed by the trial court with the modified term of default sentence for two months is restored. Therefore, the accused has to serve imprisonment till rising of the court and pay fine of Rs. 7,02,500/- as substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason for non-encashment as funds insufficient . Lawyer notice was issued by the complainant to the accused on 12.11.2008 informing the factum of dishonour of the cheque and demanding repayment of the sum. The lawyer notice was received by the accused and a reply was sent to the complainant through his counsel on 20.11.2008. The money demanded through notice was not paid and therefore, the prosecution in question was initiated. 3. The complaint filed was taken on file by Judicial First Class Magistrate Court-I, Nedumangad as S.T. No. 33/2009 and was made over to Judicial First Class Magistrate Court-IV, Nedumangad, where the accused faced trial. Complainant examined himself as PW 1 and marked Exts. P1 to P10 in evidence. Ext. X1 was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the security of a signed blank cheque and signed white paper. She had identified the signature of the accused in Ext. P10 and denied one found in Ext. P10 allegedly put by her and the writings therein allegedly authored by her. According to her, the address written in Ext. P10 is also not that of her. During cross examination she admitted to have resided in the address for a period of 5 months, but not at the relevant time of the alleged transaction. Exts. P10, P1 and the specimen writings of the wife were forwarded to Forensic Science Laboratory, Thiruvananthapuram for expert opinion and Ext. X1 was obtained. In Ext. X1, the disputed writings and signature in Ext. P1 and Ext. P10 were reported as that of the wife of the accused, whose stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducing evidence. 39. It is not the case of the respondent-accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 11. The revision petitioner in the case on hand also does not have a case that he signed the disputed cheque or parted with it under some threat or coercion. He also do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 13. When viewed in the above backdrop, the arguments advanced by the revision petitioner are only to fail. When by evidence it stands established that the disputed signed cheque was issued by the accused to the complainant, there is every reason for the presumptions under Section 118(a) and Section 139 N.I Act to attract in favour of the complainant. The onus to rebut the presumption lies on the accused and therefore, he has to adduce convincing and reliable evidence in his venture to discharge it. Only when the onus is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 138 NI Act the trial court is empowered to sentence the accused to imprisonment upto two years or with fine upto twice the amount of the cheque or with both. The amount covered by Ext. P1 cheque being Rs. 5,00,000/-, the trial court is empowered to direct payment of compensation, double that amount. Rs. 7,02,500/- is the fine imposed in the case on hand and the trial court is justified in doing so. The appellate court has modified the sum to Rs. 5,00,000/-, but, without stating any reasons for doing so. The appellate court omitted to state anything about the substantive sentence of simple imprisonment till rising of the court imposed on the accused by the trial court. Crl.R.P is only to be allowed for the above reason. In the resu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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