IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 Crl.Rev.Pet.No. 2917 of 2005() ------------------------------------------- CRA.711/2004 OF ADDITIONAL SESSIONS COURT, (ADHOC-I), ERNAKULAM CC.48/1997 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-I, ERNAKULAM .................... REVN. PETITIONER (APPELLANT/ACCUSED): ------------------------------------------------------------------ MANAGING PARTNER, M/S.JIYA EXPORTS, P.B.NO.188, IST FLOOR, SHAMSHAM TOWERS, COCHIN. BY ADV. SRI.T.M.ABDUL LATHEEF. RESPONDENTS (RESPONDENTS/COMPLAINANTS): --------------------------------------------------------------------------- 1. M/S.DARRAGH SMAIL & CO. (I) PVT. LTD., WILLINGTON ISLAND, COCHIN, REPRESENTED BY AUTHORIZED REPRESENTATIVE K.P. KURUVILLA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.V.SABU. R2 BY PUBLIC PROSECUTOR MR.SABU SREEDHARAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P. No.2917 OF 2005 -------------------------------- Dated this the 5th day of July 2011 ORDER The accused, who suffered conviction for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, NI Act), after having been worsted in the court below by dismissal of his appeal challenging such conviction, has preferred this revision. He is the managing partner of a firm. A cheque issued by him in such capacity for a sum of Rs.2,70,481/- to the complainant, a freight agent, for exporting his goods, on presentation being dishonoured, led to his prosecution for the aforesaid offence. The revision petitioner/accused, among other contentions, challenged the maintainability of the complaint as barred by limitation, while disputing his liability contending that there was no privity of contract between him and the complainant over the cheque involved, exhibited as Ext.P2. His challenge raised with respect to the bar of limitation to the complaint initially was accepted by the learned Magistrate resulting in the dismissal of the complaint. However, in the appeal preferred by the complainant, the acquittal of the accused was reversed and the case was remitted for fresh disposal in accordance with law. Crl.R.P.No.2917/2005 2 Pursuant to such order of remit, after taking evidence, the learned Magistrate came to the conclusion that the accused is guilty of the offence imputed and conviction was entered against him thereunder, directing him to pay off Rs.2,70,481/- with default term of imprisonment of three months. As against the conviction of sentence passed by the trial Magistrate, the accused preferred an Appeal. The learned Sessions Judge, after reappraisal of the evidence, concurring with the finding of guilt entered against the accused, dismissed the Appeal upholding the conviction and sentence without any modification. Feeling aggrieved, the accused has preferred this Revision. 2. I heard the learned counsel for the accused and also the learned counsel for the 1st respondent - the complainant. Both the courts below, without adverting to and considering the materials tendered by the accused, more particularly Exts.D2 and D4, with reference to the answers given by PW1 examined on behalf of the complainant, which would prima facie indicate that there was no privity of contract as between the complainant and accused in respect of the issue of Ext.P2 cheque, had erroneously formed the conclusion that Ext.P2 cheque was given in discharge of a debt or liability to the complainant to found a conviction Crl.R.P.No.2917/2005 3 against the accused, is the submission of the learned counsel for the accused. It is further urged by the counsel that the complainant was only a freight agent, to whom Ext.P2 cheque was handed over as a security in relation to the export of goods to a company in Hamburg. That transaction, through the complainant/freight agent, did not materialise in, as much as the goods were rejected by the aforesaid company at Hamburg. Pointing out these aspects, the accused had sent a reply to the notice issued on dishonour of Ext.P2 cheque and the defence so canvassed, according to the counsel, is further supported by the documentary materials tendered as Exts.D2 and D4 and also the evidence of the accused examined as DW1. Without appreciating the defence evidence in the proper perspective and also with the settled principles of law that the defence is expected to show that his version is probable, both the courts have negatived his defence as if it has not been proved by unimpeachable evidence. That being so, according to the counsel, the finding of guilt entered against the accused suffers from misappreciation of evidence resulting in miscarriage of justice, and as such, the conviction and sentence imposed are liable to be set aside. Crl.R.P.No.2917/2005 4 3. Per contra, the learned counsel for the 1st respondent/complainant contended that the defence canvassed by the accused is belied by his own admissions as spelt out in the reply notice and also Ext.P3 statement, which is not under challenge. Pointing out that the issue of cheque and its handing over, though stated to be in blank form with signature alone, towards some business transaction with the complainant is not a matter in dispute, it is urged by the counsel that on the fact so presented, the complainant is entitled to succeed even on the presumption covered under Sections 118 and 139 of the NI Act. The evidence, on behalf of the complainant through PW1, has been found to be trust worthy by both the courts below, and it is more than sufficient to prove the case of the complainant that the accused has committed the offence imputed is the further submission of the counsel. Conviction imposed against the accused, which is fully supported by the legal evidence tendered is not liable to be interfered with in exercise of the revisional jurisdiction of this Court is the further submission of the counsel for the complainant. 4. Needless to point out, in exercise of revisional jurisdiction, this court is not expected to reappreciate the Crl.R.P.No.2917/2005 5 evidence on record as a matter of course. Such a course is permissible only where it is shown the finding entered by the inferior court is so perverse in the sense that such a view could not have been taken on the records available in the case. Even if two different views are permissible on the materials tendered in the case, so long as the view taken by the inferior court is also one which could be legitimately drawn, it is not open to the revisional court to disturb that finding whatever be the probative value of the second view permissible on such materials. Such being the position of law and also the interdiction in exercise of revisional jurisdiction, I find, the challenges raised by the accused to impeach his conviction rendered by the learned Magistrate and confirmed by the lower appellate court hardly merit consideration. He has set up a defence that he had no privity of contract with the complainant and the issue of cheque was only as a security in relation to the transaction with another. The fact that Ext.P2 cheque was issued to the complainant, a freight agent, for transporting the goods of the accused is practically conceded by him in Ext.P3 statement and also in the reply notice. When that be so, the plea canvassed that it was issued only as a security, that too without showing that he had paid the charges to the Crl.R.P.No.2917/2005 6 freight agent, complainant, for transporting his goods by way of any other mode, deserve to be taken note of only for its rejection. The trial Magistrate who had the opportunity to watch the demeanor and deportment of the witnesses examined on behalf of the complainant and also the accused found the testimony of PW1 reliable and trustworthy to accept the case of the complainant. On reappraisal of the evidence, the lower appellate court has concurred with the finding of guilt entered against the accused, which is seem to be fully supported by the legal evidence tendered in the case. When such be the case, I find, there is no merit in the Revision challenging the conviction of the accused and also the sentence imposed for the offence with which he was found guilty. 5. The learned counsel for the accused made a fervent plea for some more time to pay the compensation fixed by the court below and thus avoid his incarceration. The complaint imputing the offence under Section 138 of the NI Act against the accused over the cheque issued by him, on its dishonour, has arisen as early in 1997. When that be so, normally no indulgence by way of further time can be granted to the complainant/accused, as requested by the counsel, for payment of the sum fixed as Crl.R.P.No.2917/2005 7 compensation. However, it is submitted by the counsel that the accused is in difficult circumstances and if a breathing time is provided, he would pay off the entire compensation. Considering the submissions made by the counsel and taking note that a sum of Rs.2,70,000/- is involved, I direct the concerned Magistrate to keep in abeyance the execution of the sentence for a period of six weeks to enable the accused to pay the amount fixed as compensation within such time. Petitioner is directed to appear before the Magistrate on 16-08-2011 and report compliance of the payment of compensation. In default of appearance and nonpayment of the compensation within the extended period as indicated above, then, the Magistrate shall take steps forthwith to execute the sentence. Revision is dismissed subject to the direction with respect to the extended period of six weeks for payment of compensation. vdv S.S.SATHEESACHANDRAN, JUDGE