IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 Crl.Rev.Pet.No. 1546 of 2007() ------------------------------ CRA.857/2006 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.1352/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER: APPELLANT/ACCUSED ------------------------------------ K.K.SUNDARAM, S/O. KUNJAN ACHARI, GOLDSMITH, KOCHUKARIPPAL BUILDINGS, KARIMUKAL, AMBALAMEDU, PUTHENCRUZ P.O., ERNAKULAM. BY ADV. SRI.V.PHILIP MATHEWS RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------ 1. P.NARAYANANKUTTY, VALLAYIL HOUSE, IRIMPANAM, CHITRAPPUZHA, THIRUVANKULAM, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.VARGHESE C.KURIAKOSE FOR R.1 PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ................................................. Crl.R.P. No.1546 of 2007 ................................................ Dated this the 12 th day of August, 2008 O R D E R In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in C.C.No.1352 of 1999 on the file of the Additional Chief Judicial Magistrate, Ernakulam, challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was Rs.2,40,000/-. Having regard to the fact that the cheque was issued in the year 1999, the compensation fixed by the lower appellate court is Rs.3,00,000/-. 2. I heard the learned counsel for the Revision Petitioner, and learned counsel for the 1st respondent/ complainant 3. The learned counsel appearing for the Revision Petitioner raised the following contentions in support of the revision:- Eventhough Ext.P1 cheque dated 22.6.1999 is for Crl.R.P.No.1546/2007 -:2:- Rs.2,40,000/-, in Ext.D3 petition filed by the complainant before the Police on 18.6.1999 which is just 4 days prior to Ext.P1, his claim was only for Rs.2 lakhs. Ext.P1 was one out of the two cheque leaves stolen by DW1, the son of the complainant from the custody of the accused. Both the cheque leaves were given to one Zaheer while the accused borrowed Rs.20,000/- from the said Zaheer for his sister's marriage. Consequent on the accused discharging the said loan the two signed blank cheque leaves were returned by Zaheer and kept in the custody of the accused. The complainant's son who was examined as DW1 being a partner in the business of the accused had every opportunity to have access to the cheque leaves. The present prosecution was actually a vindictive measure to wreck vengeance against the accused for having lodged a criminal complaint against DW1 resulting in Ambalamedu Police registering crime No.14 of 1991. Eventhough there was a remand of the case to the trial court once in the appeal filed by the revision petitioner, the trial court did not permit the petitioner to examine the said Zaheer. Moreover, that court also dismissed the petitions filed by him thereby depriving him of an Crl.R.P.No.1546/2007 -:3:- opportunity to adduce further evidence. After the remand the trial court again convicted the revision petitioner by placing reliance on the additional material also which was admitted in evidence after the remand . But the revision petitioner was not further examined under Section 313(1)(b) with regard to those additional material. That has resulted in prejudice to the revision petitioner. The failure to grant sufficient opportunity to the revision petitioner has resulted in failure of justice. The revision petitioner relies on the decision reported in 2008(1) KLT425(SC), 2008(1)KLT 257, 2006(4)KLT 48, 2007(2)KLT 434 and ILR 2008(3) 311 to support his contentions. 4. I am afraid that I cannot agree with the above submissions. Ext.P1 is admittedly a cheque containing the signature of the revision petitioner. The only explanation offered by the revision petitioner for the complainant's custody of Ext.P1 cheque leaf is through a theft said to have been committed by DW1, the son of the complainant. If his cheque leaf had been stolen by DW1 one would have expected him to lodge a complaint before the Police against DW1, the son of the complainant for theft and would have prosecuted PW1, the Crl.R.P.No.1546/2007 -:4:- complainant for the offence of forgery in having converted the signed blank cheque into a negotiable instrument. But the accused he did not lodge any complaint either against DW1 or against PW1 with regard to the alleged theft or forgery of the cheque leaves. 5. With regard to the figure of Rs.2 lakhs mentioned in Ext.D3 complaint filed by PW1 also, both the courts have accepted the testimony of PW1 that he was only giving an approximate figure in Ext.D3. The revision petitioner is not entitled to seek a re-appraisal of the said evidence by this court and forge a different conclusion on the basis of such evidence. 6. As mentioned earlier Ext.P1 admittedly contains his signature. In that case the decision of the Apex Court in Bhaskaran V/s.Sankaran Vaidhyan Balan & another ( AIR 1999(3)SCC 3762)particularly paragraph 9 thereof is squarely attracted. The burden was on the accused to explain as to how his cheque leaf came into the hands of the complainant particularly since the complainant is armed with the presumptions under Section 118(a) and 139 of the Negotiable Instruments Act, 1881. Zaheer the so-called person with whom Crl.R.P.No.1546/2007 -:5:- he had entrusted the cheque while entering into an earlier transaction has been cleverly kept away from the witness-box. The order sheet of the trial court shows that the accused had volunteered to produce the said Zaheer to be examined as a defence witness. But for every obvious reasons the said Zaheer was not examined. It is most uncharitable to blame the trial court for not giving the revision petitioner an opportunity to examine the said Zaheer. A perusal of the depositions of the witnesses, particularly PW1 will go to show that the revision petitioner has been indulging in subjecting the complainant to a grilling cross-examination by putting all sorts of irrelevant questions and that too by putting complex sentences. The learned Magistrate also has been unduly indulgent in permitting the revision petitioner to put such questions to PW1 during his cross examination. After all these tortures committed by him on PW1, who was not adequately protected by the court, it is really cruel to allege that the court below deprived the revision petitioner an opportunity or a fair trial. 7. The alleged failure to examine the revision petitioner further under Section 313 Cr.PC is also without any substance. Crl.R.P.No.1546/2007 -:6:- The substratum for the prosecution under Section 138 of the Negotiable Instruments Act, 1881 was already before the court in the form of the complaint as well as the oral testimony of PW1 and the documents produced by him along with the complaint. No additional incriminating material has been introduced in the evidence after the remit by the lower appellate court so as to necessitate a further examination of the accused under Section 313(1)(b)Cr.P.C 8. The Magistrate who had the unique advantage of seeing the witnesses and assessing their credibility had no difficulty to accept the testimony of PW1 and the documentary evidence produced in support of the offence. The lower appellate court has fully enclosed the views of the trial court. This Court sitting in revision will be loathe to interfere with the conviction entered by the courts below after a careful evaluation of the oral and documentary evidence in the case. The conviction is accordingly confirmed. 9. The sentence imposed on the revision petitioner by the lower appellate court also does not call for any interference by this Court. If at all the learned Assistant Sessions Judge has Crl.R.P.No.1546/2007 -:7:- erred that was on the side of leniency in reducing the simple imprisonment for one year to imprisonment till the rising of the court . I, therefore confirm the conviction entered and the sentence passed against the revision petitioner. However, the revision petitioner is given three months time to deposit the compensation amount of Rs.3,00,000/-(Rupees three lakhs only) before the trial court failing which he shall suffer the default sentence of simple imprisonment for three months. In the result, this Revision is dismissed. Dated this the 12th day of August, 2008. V. RAMKUMAR, JUDGE. sj