IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 8TH MARCH 2010 / 17TH PHALGUNA 1931 Crl.Rev.Pet.No. 505 of 2006() ----------------------------- CRA119/2004 of ADDL. SESSIONS COURT (ADHOC), KOZHIKODE CC.269/2002 of JUDL. MAGISTRATE OF FIRST CLASS-II, PERAMBRA .................... REVN. PETITIONER/: APPELLANT/ACCUSED ------------------------------------------------------------- HUSSAIN HAJI, S/O.KUNHIMOHAMMED MASTER, PANAYATHIL VEEDU, P.O.PARAPPANANGADI, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.K.MOHAMMED FAISAL NAHA RESPONDENTS: / COMPLAINANTS ------------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.K.ANILKUMAR, S/O.UNNIMADHAVAN NAIR, PALAKKAMCHERI VEEDU, EKAROOL.P.O, KOZHIKODE DISTRICT. ADV. SRI.SANTHARAM.P FOR R2 PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN.J -------------------------------------- Crl.R.P.NO. 505 OF 2006 ---------------------------------------- Dated this the 8th day of March, 2010. O R D E R The revision petitioner is the accused in CC No.269/2002 on the file of the Judicial Magistrate of the First Class, Perambra. The second respondent is the complainant. The second respondent prosecuted the revision petition alleging offence u/S.138 of the Negotiable Instruments Act. The revision petitioner pleaded not guilty. Hence, he was sent for trial. On the side of the second respondent, he was examined as PW1 and Exts.P1 to P8 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned u/S.313 of the Code of Criminal Procedure. He denied the incriminating evidence and contended that the second respondent was an employee of one Abdul Nassar. Abdul Nassar requested the revision petitioner, who was running a Travel Agency, to arrange Visa to the second respondent and another worker. Accordingly, he requested one Muhammed Iqbal to arrange Visa for which Abdul Nassar paid Rs.40,000/- to Muhammed Iqbal. But Muhammed Iqbal did not arrange the Visa. On enquiry, it was known that Muhammed Iqbal was no more. C.R.R.P.NO. 505 OF 2006 2 Knowing that, the revision petitioner was asked to return the amount for which he was not agreeable. The second respondent and his friends trespassed to the house of the revision petitioner and took away valuable documents including the cheque leaves and manipulating the cheque leaf so obtained, the prosecution was launched. No defence evidence was adduced. The learned Magistrate, on appraisal of the evidence, arrived a finding of guilty. As a result, the revision petitioner was convicted and sentenced to Simple Imprisonment for 3 months. He was further directed to pay Rs.25,000/- as compensation to the second respondent. Though the revision petitioner filed Criminal Appeal No.119/2004, he was unsuccessful. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition was filed. 2. The second respondent, who was examined as PW1, had deposed that on 6.9.2001, the revision petitioner borrowed Rs.25,000/- and that when demanded back the amount he promised that a Visa would be arranged to the second respondent to go abroad for employment. But the revision petitioner did not arrange the Visa. So, the revision petitioner was asked to return the money. C.R.R.P.NO. 505 OF 2006 3 Thereupon, the revision petitioner issued Ext.P1 cheque dated 20.12.2001 drawn on State Bank of Travancore, Parappanangadi Branch. When sent for collection, Ext.P1 was returned dishonored for insufficiency of funds along with Ext.P2 and P3 memos. Demanding discharge of the liability, a lawyer notice dated 29.1.2002 was caused. Ext.P4 is the copy of the notice , Ext.P5 and P6 are the postal receipt and acknowledgment card. Though the revision petitioner acknowledged the notice on 1.2.2002, the liability was not discharged. Neither any reply was caused. Though PW1 was subjected to searching cross examination no material was disclosed to disbelieve him. The story of the defence that the second respondent who was an employee of Abdul Nassar advanced amount to Muhammed Iqbal for arranging Visa and that the revision petitioner was only a mediator and that when Muhammed Iqbal failed to arrange the Visa, the revision petitioner was asked to return the amount and that the second respondent and his friends trespassed to the house of the revision petitioner and forcibly obtained the cheque leaves and manipulating the cheque leaf so obtained, the prosecution was launched remain not established. Other than the suggestion made when questioned u/S.313 of the Code of Criminal C.R.R.P.NO. 505 OF 2006 4 Procedure no evidence was let in by the revision petitioner to substantiate the defence. Neither any preponderance of probability of the defence version was disclosed. The result is that the defence version remains to be a suggestion not supported by any defence. In the event the defence is true, he would have retorted to the notice demanding discharge of liability. The silence of the revision petitioner, after acknowledging the notice demanding discharge of liability, looms large. In the above circumstances, I find that the courts below had correctly believed the evidence of PW1 and rightly arrived at a conclusion of guilty. The conviction under challenge is unassailable. 3. Having regard to the fact that the revision petitioner is now aged 58 years and that an ordinary money transaction had forced him to undergo prosecution, I find that the revision petitioner is entitled to a little leniency in sentence and that sentence of imprisonment till rising of the court and a fine of Rs.35,000/- would meet the ends of justice. In the result, revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court and a fine of Rs.35,000/- (Rupees Thirty five C.R.R.P.NO. 505 OF 2006 5 thousand only). In default of payment of fine, the revision petitioner shall undergo Simple Imprisonment for 4 months. The fine, if realised, shall be paid to the second respondent as compensation. The revision petitioner is granted one month time to remit the fine. Till then, the bail bond executed by the revision petitioner shall remain in force. P.S.GOPINATHAN,JUDGE. pm C.R.R.P.NO. 505 OF 2006 6