IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 Crl.Rev.Pet.No. 391 of 2010() ----------------------------- CRA.269/2008 of SPL. COURT (NDPS ACT CASES), THODUPUZHA ST.283/2007 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... REVN. PETITIONER(S): REVISION PETITIONERS/APPELLANTS/ACCUSED: ------------------------------------------------------------- 1. THOMAS JOSEPH, S/O.JOSEPH MUNDIANKAL HOUSE, MANIPARA P.O., ADIMALI, IDUKKI DISTRICT. 2. MERCY THOMAS, W/O.THOMAS JOSEPH MUNDIANKAL HOUSE, MANIPARA P.O., ADIMALI, IDUKKI DISTRICT. BY ADV. SRI.V.G.ARUN SRI.PRASAD CHANDRAN RESPONDENT(S): COMPLAINANT & STATE: ----------------------------------- 1. SREE GOKULAM CHIT & FINANCE CO.(P) LTD., 356 ARCOT ROAD, KODOMBAKKOM, CHENNAI, REPRESENTED BY POWER OF ATTORNEY HOLDER MR.A.V.SANTHOSH, S/O.VIJAYABHANU, ASST.BUSINESS MANAGER, THODUPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. R2 BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/02/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.391 of 2010 ------------------------------- Dated this the 8th day of February, 2010 ORDER The revision petitioners are the accused in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. The court below found that they are guilty of the offence charged against them and accordingly they were convicted and sentenced under Section 138 of the Negotiable Instruments Act and also directed to pay a compensation to the complainant under Section 357(3) Cr.P.C. 2. The first respondent is the complainant. The case of the complainant is that the first revision petitioner was a subscriber of the chitty conducted by the complainant and the second revision petitioner stood as a guarantor for the said transaction. Towards the payment of the balance amount due in the chitty transaction, both the accused jointly issued a cheque for an amount of Rs.8,12,363/- and when the said cheque presented for encashment the same was returned as dishonoured for the reason want of sufficient funds in the account maintained by the accused. With the above allegation after complying with the statutory requirement, a formal complaint was filed before the 2 trial court wherein S.T.No.283/2007 was instituted. During the trial of the case PWs.1 and 2 were examined from the side of the complainant and Exts .P1 to P12 were produced and marked. No evidence was adduced from the side of the defence either as oral or documentary. After considering the evidence and materials on record the trial court by its judgment dated 5.8.2008 in S.T.No.283/2007, found that the accused are guilty under Section 138 of the Negotiable Instruments Act and accordingly, they were convicted and further sentenced to undergo imprisonment till rising of court and to pay a sum of Rs.4,50,000/-each as compensation and in default in paying the compensation directed to undergo simple imprisonment for six months each. 3. Aggrieved by the above order of conviction, sentence and order of compensation, the revision petitioners/accused preferred Crl.A.269/2008 before the Sessions Court, Thodupuzha and by judgment dated 6.7.2008 the court of Additional Sessions Judge/Special Judge for NDPS Act cases, Thodupuzha dismissed the appeal, confirming the conviction, sentence and order to pay compensation. It is the above judgments of the courts below challenged in this revision petition. 3 4. I have heard Mr.V.G.Arun, counsel appearing for the revision petitioners. The learned counsel emphatically submitted that out of the chitty transaction the entire amount were paid of and inspite of the fact of repayment of the amount the cheque which was obtained as a security misused by the complainant for filing the present complaint. 5. I have gone through the judgments of the trial court as well as lower appellate court. The materials and evidence on record which are relied on by the trial court as well as the appellate court are sufficient to hold the guilt of the revision petitioners for which offence thus faced the trial. 6. In this case it is relevant to note that the revision petitioners did not challenge the chitty transaction with the complainant. It is the case of the complainant also that the first revision petitioner was a subscriber of the chitty conducted by the complainant company and the second revision petitioner, who is none other than the wife of the first revision petitioner, stood as a guarantor for the liability of the first revision petitioner. Towards the discharge of the said liability, both the revision petitioner as subscriber of the chitty and the second revision petitioner as the guarantor for the liability of the first 4 revision petitioner, jointly issued a cheque pertained to an account jointly maintained by both the revision petitioners. Thus on the basis of the evidence of the trial court as well as the appellate court found that the complainant has established its case against the accused/revision petitioners. Such findings are not liable to be interfered in this revision proceedings since no case is made out to arrive different finding. 7. When the revision petitioners/accused admitted the transaction it is up to them to adduce evidence to substantiate their contention whatsoever and thereby to rebut the presumption which is available to the complainant under Section 118A and Section 139 of the Negotiable Instruments Act. Admittedly, except the bare pleading, no evidence was adduced by the accused/revision petitioners to substantiate their case. In this juncture it is relevant to note that though the revision petitioners have got an opportunity to dispute the claim of the complainant by sending a proper reply to the lawyer notice, no attempt was made to make use of such earlier opportunity to challenge the claim of the complainant. Beside the above, during the trial also, no evidence was adduced. Therefore, I find no reason to interfere with the orders of the courts below. 5 8. The learned counsel for the revision petitioners submitted that the revision petitioners/accused who are agriculturist are not in a position to raise the fund to comply with the direction issued by the courts below and to make the compensation. Admittedly, the transaction pertains to the period 2007 and the trial court judgment is dated 5.8.2008 and the lower appellate court judgment is dated 6.7.2009. But so far no amount is seen paid to the complainant by the revision petitioners/accused. Under the above circumstances, six months' time as sought by the counsel for the revision petitioner to make the payment cannot be granted. But considering the particular facts and circumstances involved in the case, I am of the view that two months' time can be granted from today for making the payments of compensation ordered by the court below. 9. In the result this Crl. Revision Petition is disposed of confirming the conviction, sentence and also the order for payment of compensation. The revision petitioners are directed to appear before the trial court on 8.4.2010 to receive the sentence and to make the payment of compensation. If there is any failure on the part of the revision petitioner to appear before 6 the trial court as directed and to make the payment, the trial court is free to take coercive steps to secure the presence of the revision petitioners and to execute the sentence and also to takes steps to realise the compensation as ordered. V.K.Mohanan, Judge cms