IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN SATURDAY, THE 3RD DAY OF DECEMBER 2011/12TH AGRAHAYANA 1933 Crl.Rev.Pet.No. 2062 of 2004 (C) -------------------------------- CRA.66/2001 of ADL.D.C. & MACT,THODUPUZHA CC.281/1996 of J.M.F.C.,NEDUMKANDOM REVISION PETITIONER(S)/APPELLANT/ACCUSED: =========================================== K.G.MOHANAN, KADAVUNKAL HOUSE, SENAPATHI P.O., VATTAPPARA IDUKKI. BY ADVS.SRI.D.KRISHNA PRASAD SRI.M.HARISHARMA COMPLAINANT(S)/RESPONDENTS/COMPLAINANT: =========================================== 1. T.U.VARGHESE, THOPPIL HOUSE, RAJAKUMARI SOUTH P.O., IDUKKI 2. STATE OF KERALA, REP: BY THE PUBLIC PROSECUTOR, THODUPUZHA. R1 BY SRI.P.KESAVAN NAIR R1 BY SRI.K.G.CLEETUS BY PUBLIC PROSECUTORSRI REJI JOSEPH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-12-2011, ALONG WITH CRRP. 2431/2004, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SKV P.S. GOPINATHAN, J. - - - - - - - - - - - - - - - - - - - Crl.R.P. No.2062 & 2431 OF 2004 - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2011 C O M M O N O R D E R Assailing the concurrent finding of guilt, conviction and sentence for offence under Section 138 of Negotiable Instruments Act in Crl.A. No.66/2001 and Crl.A. No.67/01 on the file of the Sessions Judge, Thodupuzha, these revision petition are preferred. Parties are same in both cases. Criminal appeals were preferred against the judgment in C.C.No.281/1996 and C.C.No.283/1996 on the file of the Judicial Magistrate of the First Class, Nedumkandom. In both cases, the revision petitioner was found guilty by the learned Magistrate for the offence under Section 138 of the Negotiable Instruments Act, convicted and sentenced to simple imprisonment for six months and a fine of ` 5,000/-. 2. As requested from the Bar, these revision petitions are heard together and disposed of by this common order. Crl.R.P.No.2062 & 2431 of 2004 -2- 3. First respondent herein, prosecuted the revision petitioner before the trial Court with a plea that as per an agreement for sale, the revision petitioner accepted a sum of `6,00,000/- from the first respondent. Though the revision petitioner agreed to clear off the dues in respect of the property, that was not complied with. Therefore the agreement for sale was breached by the revision petitioner. Thereupon, the revision petitioner agreed to return the amount accepted as advance from the first respondent. In pursuance to the agreement to return the amount, revision petitioner issued two cheques, one for ` 2,00,000 dated 25/02/1996 drawn on the Union Bank of India, Santhanpara and another for ` 1,60,000/- dated 30/03/1996. Ext. P1 in C.C.No.283/1996, is the cheque for ` 2,00,000 and Ext. P2 in C.C.No.281/1996 is the cheque for ` 1,60,000. When presented for collection, the cheques were dishonoured for insufficient funds. Demanding discharge, the first respondent caused a lawyer notice. Despite the acknowledgment of notice, the liability was not discharged. Crl.R.P.No.2062 & 2431 of 2004 -3- It is, with these pleadings, the prosecution was launched. Exts. P2 to P5 in C.C.No.283/1996 are the memo returning the cheque, copy of lawyer notice, acknowledgment card and extract of the ledger of the bank respectively. Identical documents are marked as Exts.P3 to P6 in C.C.No.283/1996. 4. Revision petitioner pleaded not guilty. Therefore, he was sent for trial in both cases. There was yet another case that ended in acquittal. When questioned under Section 313 of the Code of Criminal Procedure, he denied the liability and advanced a contention that he along with the first respondent and others were running a partnership business by name 'Capital Bankers' and for the business purpose, blank cheques were issued. Though the firm was dissolved, the cheques were not returned despite notice demanding return of cheques. Revision petitioner and another were examined as Dws 1 and 2. Exts. D1 to D7 were marked on his side. On appraisal of the evidence, the trial court arrived at a finding against the revision petitioner. Consequently, he was convicted and sentenced as above. Crl.R.P.No.2062 & 2431 of 2004 -4- Though he preferred criminal appeals, he was not successful. 5. I have heard Adv. Sri. Harisharma on behalf of the revision petitioner and Adv. K.G. Cleatus on behalf of the first respondent. Perused the judgments impugned. The learned counsel for the revision petitioner had also taken me through the oral testimony of the first respondent as PW1 and that of the revision petitioner as DW1. 6. Going by the evidence of the first respondent, I find that the first respondent had succeeded to establish the liability, issuance of the cheques, presentation of the cheques for collection and dishonour of the same for insufficient funds. Learned counsel for the revision petitioner submitted that as per the agreement for sale the last date for performance was 04/04/1996. The cheques in dispute being dated 25/02/1996 and 30/03/1996, there was no amount due. Therefore, according to the learned counsel the prosecution is not at all sustainable. 7. In support of the argument, the revision petitioner, Crl.R.P.No.2062 & 2431 of 2004 -5- produced a copy of the plaint and judgment in O.S. No.30/2000 on the file of the Sub Judge, Kattappana, along with a petition. The judgment of the trial Court in C.C.No.282/1996 in which the revision petitioner was acquitted was also produced. 8. Copy of the plaint and judgment in O.S. 30/2000 would show that it is on same set of pleadings relating to the advance of ` 6,00,000 in pursuance to the agreement for sale, the suit was instituted. Curiously the revision petitioner remained exparte and the suit was decreed with 12% interest for `6,00,000 from the date of suit till realization. That fact itself would be lie the defence and support the case of the 1st respondent. 9. The learned counsel had also canvassed my attention to the averments in the plaint and stated that first respondent has got a case that on 25/04/1996, the first respondent caused a notice demanding specific performance of the agreement for sale. Irrespective of that, consistent case of the first respondent is that the parties fell apart on Crl.R.P.No.2062 & 2431 of 2004 -6- the agreement for sale and the revision petitioner agreed to return the money and it is in discharge, cheques in dispute were issued. The evidence of DW1 would show that he had even denied acceptance of ` 6,00,000 in pursuance to the agreement for sale. His conduct in not defending the suit would show that the denial of the liability raised before the trial Court lacks bonafide. He has no courtesy to truth. It is also pertinent to note that the revision petitioner who acknowledged the notice demanding discharge and threat to prosecute for non discharge, remained silent after acknowledging the notice. That means, the revision petitioner had in fact no good defence at the time when he received the notice demanding discharge. His silence speaks volumes in favour of the 1st respondent. It appears that the defence raised during the trial is the result of an afterthought. It is also pertinent to note that while revision petitioner was examined as DW1 the institution of civil suit was put to the revision petition. He had admitted. He has no case that either he has filed a written statement or that Crl.R.P.No.2062 & 2431 of 2004 -7- what are pleaded in the plaint are not correct. 10. In the above circumstance, I find no merit in the argument of the learned counsel appearing for the revision petitioner that there was no existing liability to be discharged for which the cheques were issued. I find no illegality, error or impropriety, committed by the courts below in appreciating the evidence. Convictions under challenge are unassailable. 11. Regarding the sentences, though I find that sentence is not harsh, taking note that no compensation was awarded to the first respondent and that the first respondent had obtained a civil decree and noting that the transaction arises out of an agreement for sale, I find that the revision petitioner is entitled to a little leniency and that a sentence for imprisonment till the rising of the court with a fine of ` 2,00,000 (Rupees Two lakhs) in C.C.No.281/1996 and ` 2,25,000 (Rupees Two lakh twenty five thousand only) in C.C.No.283/1996 would meet the ends of justice. 12. In the result, these revision petitions are allowed Crl.R.P.No.2062 & 2431 of 2004 -8- in part. While confirming the convictions, the substantive sentence is reduced to imprisonment till the rising of the court and a fine of ` 2,00,000 (Rupees Two lakhs only) in C.C. 281/1996 and fine of ` 2,25,000 (Rupees two lakh twenty five thousand only) in C.C.No.283/1996. In default of payment of fine, the revision petitioner shall undergo simple imprisonment for another period of six months. Out of the fine amount, if collected, `1,90,000 (Rupees Nineteen thousand only) and ` 2,15,000 (Rupees Two lakh twenty thousand only) respectively shall be paid to the first respondent as compensation. The amount so paid towards compensation shall be given credit in the execution of the decree in O.S.No.30/2000. The revision petitioner is granted 2 months time for the payment of fine. Trial court shall see the execution of sentence and report compliance. P.S.GOPINATHAN, JUDGE. ds