IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 Crl.Rev.Pet.No. 389 of 2010() ----------------------------- CRA.301/2007 of II ADDL. SESSIONS COURT, TRIVANDRUM ST.744/2006 of J.F.C.M.COURT-VIII, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT;ACCUSED -------------------------------------- SOJA S.MANOJ, UNIVERSAL TOURS & TRAVELS, LMS COMPOUND, MUSEUM,THIRUVANANTHAPURAM, NOW RESID ING AT C.P.V/57-A, MYNAKAM, T.V.STATION ROAD, PERROKADA, THIRUVANANTHAPURAM, BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): RESPONDENTS,COMPLAINANT & STATE ---------------------------------------------- 1. A.NAJEEB, NAJEEB NIVAS, CHEKKAKONAM PO, KARAKULAM, THIRUVANANTHAPURAM, 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,. R2 BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.389 of 2010 ------------------------------- Dated this the 4th day of February, 2010 ORDER The revision petitioner is the sole accused in ST No.744/2006 of the Judicial First Class Magistrate Court- VIII, Thiruvananthapuram and the appellant in Crl.A.301/2007 of the Court of Additional Sessions Judge-II, Thiruvananthapuram. In this revision petition he challenges his conviction under Section 138 of the Negotiable Instruments Act and the sentence and order of compensation under Section 357(3) Cr.P.C. 2. The first respondent herein is the complainant. According to him a sum of Rs.5,00,000/-(Rupees five lakhs only) was due to him from the accused and towards the discharge of the said liability, the revision petitioner/accused issued Ext.P1 cheque for Rs.5,00,000/- and when the same presented for encashment it was dishonoured and thereby committed the offence punishable under Section 138 of the Negotiable Instruments Act since 2 the accused failed to pay the amount inspite of the notice and demand served on him. On the basis of the above allegation ST No.744/2006 was instituted in the trial court. During the course of trial, the complainant was examined as PW1 and produced Exts.P1 to P6 documents. From the side of the defence the accused himself was examined as DW1 and marked Ext.D1. The trial court on the basis of the available materials and evidence came into the conclusion that the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act and accordingly he is convicted for the said offence and sentenced to undergo simple imprisonment for two months and to pay a compensation of Rs.5,00,000/- and the default sentence is fixed as two months simple imprisonment. It was also ordered that the compensation amount shall be paid to the complainant. Aggrieved by the above order of conviction, sentence and the order of compensation, the revision petitioner approached the lower appellate court by preferring Crl.A.No.301/2007 which was disposed of by 3 judgment dated 23.11.2009. The lower appellate court while confirming the conviction certain modifications were made with respect to the sentence . Accordingly, the appellant was sentenced and directed to undergo imprisonment till rising of the court and further directed the revision petitioner to pay a compensation of Rs.5,10,000/- to the complainant under Section 357(3) of Cr.P.C. and on default of payment of compensation to undergo simple imprisonment for two months. It was also directed the revision petitioner/accused to appear before the trial court on 31.12.2009 to receive the modified sentence and to pay the amount. The revision petition is against such judgments and order of conviction and sentence. 3. I have heard the learned counsel appearing for the revision petitioner. The main contention of the learned counsel is based upon the factual contention taken before the trial court as well as the lower appellate court which according to me deserve no satisfaction because the courts 4 below being the fact finding authority considered the above contention and found against the revision petitioner. 4. Going by the judgments of the courts below and on hearing the arguments of the learned counsel, I am of the view that the complainant by adducing evidence that consists of his oral testimony and documentary evidence such as Exts.P1 to P6, he had established his case. It is also relevant to note that during the cross examination of PW1 it is also brought on record that the complainant and the accused are not strangers but they have got acquaintance. During the cross examination of PW1 no effort was made even to dispute the transaction claimed by the complainant. It is clear from the line of cross examination that the attempt was to give an explanation as to how the cheque in question was reached in the hands of the complainant. According to the accused, the cheque in question was kept in the dash of a car owned by the accused and when the car was given to the complainant for his personal use, the cheque kept therein was taken by the complainant and 5 misused the same for the purpose of filing the complaint. Apart from the mere suggestion no materials or evidence adduced by the defence to substantiate the above plea. 5. The trial court as well as the lower appellate court has held that the complainant had established his case and produced the cheque in question from his custody and clearly deposed the transaction entered into between himself and the accused. In this juncture, it is relevant to note that though the accused has got an earliest opportunity to deny the transaction and to set up his defence whatsoever at the time of receiving the statutory notice. The defence has no case that the statutory notice was not sent in correct address. Ext.P4 and the postal receipt Ext.P6 and Ext.P5 acknowledgment card would show that the complainant has sent the statutory notice in the correct address but the accused deliberately sent back the said demand notice as unclaimed and therefore, it can be safely conclude that there is proper service of statutory notice upon the revision petitioner/accused. The story 6 regarding taking of the car and the cheque leaves etc. are put for first time at the time of trial. It is also relevant to consider that the defence had produced Ext.D1 which is a copy of the complaint filed by the accused against the complainant. The courts below found that Ext.D1 complaint is filed after the statutory notice. Thus the courts below rejected the unsubstantiated defence and held that the defence miserably failed to rebut the presumption. I find no reason to interfere with the above findings of the courts below and the conviction, sentence and the compensation ordered. In the result, there is no merit in the revision petition and the same is dismissed accordingly. V.K.Mohanan, Judge cms