IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 4086 OF 2008() ------------------------------ CRA.327/2007 of ADDL.SESSIONS COURT-II, KOZHIKODE ST.1522/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- VAKKACHAN, AGED 60 YEARS, S/O.JOHN, PALLATH HOUSE, EX-PRESIDENT KODENCHERY GRAMA PANCHAYATH, KODENCHERY P.O., KOZHIKODE. BY ADV. SRI.C.VIVEK RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------- 1. PRINCE.M.GEORGE, AGED 40 YEARS, S/O.GEORGE, MANKUDIYIL HOUSE, KODENCHERY P.O., KOZHIKODE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 4086 OF 2008 ------------------------------------------ Dated this the 17th day of December, 2008 O R D E R Revision petitioner is the accused and first respondent the complainant in S.T. 1522 of 2005 on the file of Judicial First Class Magistrate-II, Thamarassery. Revision petitioner was convicted for the offence under section 138 of Negotiable Instruments Act and sentenced to imprisonment till rising of Court in addition to compensation for the amount covered by the dishonoured cheque. Petitioner challenged the conviction before Sessions Court, Kozhikode in Crl.Appeal 327 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner was heard. 3. The argument of the learned counsel is that the Appellate Court should have remanded the case to trial court as opportunity was not granted to the revision petitioner to cross- examine PW1. It was argued that even though the petition is filed under section 311 of Code of Criminal Procedure to recall CRRP4086/2008 2 PW1 and for cross-examination, that petition was allowed on cost, but the cost could not be paid and therefore opportunity was denied. 4. On hearing the learned counsel and going through the judgments of the Courts below, I find no reason to interfere with the conviction or sentence. The judgments of the Courts below establish that after the proof affidavit was filed by the first respondent, he was made available for cross-examination and on the request of the counsel appearing for revision petitioner it was adjourned. On the adjourned date also the witness was present. Then the counsel reported 'no cross-examination'. Later an application was filed under section 311 of Cr.P.C. for recalling PW1 for cross-examination. That petition was allowed on payment of cost. Petitioner did not pay the cost and did not cross-examine. Therefore petitioner cannot be heard to contend that he was not granted opportunity to cross-examine PW1 or that to grant an opportunity the case should have been remanded to the trial Court. 5. The defence raised by the petitioner is that Ext.P1 cheque was issued as security and amount borrowed was only Rs.20,000/- and it was repaid, but cheque was not returned. On the fact of it the defence case is not believable because if the CRRP4086/2008 3 amount was borrowed after giving cheque as security, the amount will not be repaid before getting the cheque returned or at least getting an acknowledgement for payment of that amount. Revision petitioner has no case that any such acknowledgement was received. Though it was contended that the amount was borrowed and paid through one V.P. Joy, he was not examined. In such circumstances, the Courts below were justified in believing the evidence of PW1 and accepting the case of the petitioner that towards the repayment of Rs.70,000/- borrowed earlier, revision petitioner issued Ext.P1 cheque which was dishonoured for want of sufficient funds. There is no case that first respondent has not complied with the statutory formalities as provided under section 138 and 142 of Negotiable Instruments Act. Learned Magistrate sentenced the petitioner only for imprisonment till rising of Court in addition to compensation, which was only for the amount covered by the dishonoured cheque. Revision is therefore dismissed. Revision petitioner is granted two months time to pay the fine. M. SASIDHARAN NAMBIAR, JUDGE Okb/-