IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 Crl.Rev.Pet.No. 323 of 2010() ----------------------------- CRA.756/2008 of I ADDL. SESSIONS COURT, PALAKKAD ST.846/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- KOMALESWARAN,S/O.R.S.MANI,VALLI NIVAS, ANDIMAAM,KADUKKAMKUNNU,PALAKKAD DISTRICT. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. NISSAR,S/O.NAVIRU,BISMILLA HOUSE, UMMINI,DHONI,PALAKKAD. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI.HRITHIWICK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.323 of 2010 ------------------------------- Dated this the 28th day of January, 2010 ORDER This revision petition is prefrred against the judgment dated 29.10.2009 in Crl.A.756/2008 of the Sessions Court, Palakkad by which the conviction and the sentence, passed by the Judicial First Class Magistrate Court-III, Palakkad, against the revision petition under Section 138 of the Negotiable Instruments Act, were confirmed. 2. The case of the complainant is that the revision petitioner/accused borrowed an amount of Rs.30,000/- from him and towards the discharge of the said liability, a cheque dated 3.1.2007 for an amount of Rs.30,000/-, was given to the complainant, which when presented for encashment has dishonoured for want of fund in the account maintained by the accused. Thus according to the complainant, the accused has committed the offence punishable under Section 138 of the Negotiable Instruments Act. 3. During the trial of the case an affidavit was filed by the complainant, but he was not cross examined. Apart from the affidavit Exts.P1 to P5 documents were produced during the trial. No evidence either documentary or oral were adduced by the accused. On the basis of the available materials, the trial court found that the accused is guilty of the offence charged. Accordingly, the trial court convicted the accused under Section 138 of the Negotiable Instruments Act and 2 sentenced him to pay a fine of Rs.30,000/- and the default sentence was fixed as one month. It is ordered that the fine amount if realised shall be given to the complainant. Though the accused/revision petitioner has filed Crl.A.756/2008 before the Sessions Court, the order of conviction and sentence passed by the trial court is confirmed in the appeal and accordingly the appeal was dismissed. 4. The learned counsel for the revision petitioner submitted that the petitioner could not cross examine the complainant and therefore, the case may be remanded to the trial court for cross examining the complainant. In view of the facts and circumstances involved in the case, I find no reason to interfere with the orders of the court below. It is a fact beyond dispute that on receiving the memo from the bank about dishonour of cheque, the complainant had sent a statutory notice to the accused which was received by him as evidenced by the documents produced. But the accused/revision petitioner did not care even to send a reply to the said notice. Though the complainant filed a detailed affidavit elaborating the transaction and the liability of the accused, the accused did not cross examine the complainant. The learned counsel for the petitioner submits that the complainant could not be cross examined because the accused was absent. The above submission cannot be entertained even for a moment. The accused was defended by the counsel and for cross examining the complainant 3 atleast based upon the available facts which are within the knowledge of the counsel for the accused, the presence of the accused not at all necessary. It is also pertinent to note that, no list of witness was produced and no documents are also produced by the defence to substantiate the plea, if any. Only at the stage of 313, the accused set up a plea that the accused had no acquaintance with the complainant and the case was filed misusing the cheque given, when a sum of Rs.5,000/- was borrowed. From the above case of the defence itself it is clear that, there is no dispute regarding handing over of the cheque which bearing the signature of the accused. Of course, regarding the amount, there is a dispute. But the complainant has established his case by producing relevant documentary evidence and by filing an affidavit and the contents of the affidavit remain as uncontroverted. In this juncture, it is also relevant to note that the statutory notice sent by the complainant was received by the accused on 16.2.2007, but no reply was given. No evidence whatsoever was adduced to substantiate the defence eventhough such plea was feeble and unacceptable. It is under the above circumstances, the trial court as well as lower appellate court found that the complainant has established the case against the accused beyond doubt. 5. As per the averments in the complaint and the materials on record, the cheque in question was dishonoured on 27.1.2007 and 4 accordingly, the trial court found that the accused is guilty of the offence under Section 138 of the Negotiable Instruments Act and passed the judgment as early as on 12.11.2008. It is also relevant to note that, inspite of such finding no sentence of imprisonment was awarded but only a fine of Rs.30,000/- was imposed, because the cheque in question was for an amount of Rs.30,000/-. Suffice to say no sentence of imprisonment was awarded. The default sentence is only for one month. The appellate court has also found that the sentence imposed against the accused/revision petitioner is not heavier or excessive. 6. In the light of the above facts and circumstances of the case, I find no reason to interfere with the orders of the court below and accordingly, the conviction and sentence passed by the court below are confronted. Revision Petition is accordingly dismissed. V.K.Mohanan, Judge cms