IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 Crl.Rev.Pet.No. 1725 of 2011() ------------------------------------------- CRA.NO. 623/2010 of ADDL.SESSIONS COURT, (ADHOC-1), ERNAKULAM ST.NO. 202/2007 of JUDL. MAGISTRATE OF FIRST CLASS-III, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------- M.K.VENUGOPAL, CLERK, AGED 58 YEARS, M/S.STATE BANK OF INDIA, AMBALAMEDU P.O. BY ADV. SRI.P.V.ANILKUMAR SMT.SURYA SHINE RESPONDENT(S): COMPLAINANT & STATE: --------------------------------------------------------------- 1. C.VELAYUDHAN, PRANAVAM, CHENNATH ROAD, MUNAPARAMBU, MALAPPURAM DEPUTY MANAGER, STATE BANK OF INDIA, ANGAMALY BRANCH, ANGAMALY. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.SHIJU VARGHEESE SRIPRAMOJ ABRAHAM SRI.RENDEEP PREM R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P. No.1725 OF 2011 ----------------------------------------- Dated this the 5th day of August 2011 ORDER The revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently by the two inferior courts. Negativing his plea of not guilty, on his conviction, the trial Magistrate sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs75,000/- with default term of simple imprisonment for three months more. In appeal, confirming the conviction, the learned Sessions Judge modified the substantive term of imprisonment reducing it to imprisonment for one day, till the rising of the court, retaining the compensation awarded, but limiting the default term of imprisonment to one month. Feeling aggrieved, the revision petitioner/accused has filed this revision. 2. I heard the counsel on both sides. Conviction imposed against the revision petitioner/accused is assailed by his counsel contending that both the courts have failed to appreciate the defence taken by the accused denying the execution of the cheque and also disputing the transaction alleged by the complainant with respect to the cheque involved in the case. Both the accused and complainant Crl.R.P. No.1725 OF 2011 2 were employed in the same branch of a Nationalised Bank and the accused had kept in his drawer 13 cheque leaves, of which one of them was taken and misused by the complainant, the Assistant Manager of the bank, surreptitiously, making entries as to the name of the payee and also forging his signature, was the defence canvassed by the accused. The complainant was examined as PW1 and Exts.P1 to P6 were marked on his side. The accused also got himself examined as DW1. Two documents summoned at the instance of the accused, from the bank, were exhibited in evidence as Exts.X1 and X2. On the materials placed by both sides as aforesaid, the trial Magistrate found the testimony of the complainant credible, trustworthy and convincing and that of the accused examined as DW1 unworthy of any merit. 3. The essential ingredients to constitute the offence under Section 138 of the NI Act have not been established in the case in as much as there was no evidence to prove the execution of Exts.P1 cheque by the accused when it stood disputed by the accused, is the submission of the learned counsel for the accused. In the context, it is seen from the judgment rendered by the trial Magistrate that on dishonour of the cheque, a notice as contemplated under Section 138(b) of the NI Act was issued to the accused. Notice was acknowledged, but, no reply was sent. When examined before the Crl.R.P. No.1725 OF 2011 3 court as DW1, as shown from the judgment of the trial Magistrate, the reason for nonsending a reply was explained stating that after receiving the notice he met the complainant and then he was told no complaint would be filed. Whatever be the merits of the defence canvassed by the accused, despite receiving a notice on dishonour of the cheque, which, admittedly, arose from his account, he did not even intimate his employer that he had lost any cheque. That has to be taken note with the added fact that the accused, a bank employee, is expected to be fully aware of the validity of banking transaction by use of cheque and also the sanctity attached to such instrument in commercial transactions with the penal provisions incorporated under the NI Act, in the event of its dishonour. Without even sending a reply to the notice he had set up a defence during the trial of the case disputing the transaction with the complainant and also denying execution of the cheque. The fact that Ext.P1 cheque arose from his account is not under challenge. If at all he had any challenge over the signature appearing in the instrument, as not subscribed by him, especially, where he is a bank employee, he is expected to take steps for scientific examination of that instrument through an expert. Evidently, no such steps were taken while the case was pending before the Magistrate. Submissions made by the learned counsel for the accused would indicate that an Crl.R.P. No.1725 OF 2011 4 application under Section 311 of the Code of Criminal Procedure was filed to produce some documents from the bank, which were later exhibited as Exts.X1 and X2. He did not take any steps to prove that the cheque which admittedly arose from his account was not executed by him and the signature in that instrument, on which the prosecution was launched against him after its dishonour, was not subscribed by him. In that back drop, the learned trial Magistrate, after meticulous scrutiny of the materials tendered, and especially where the testimony of the complainant was found credible and convincing, concluded that the defence set up by the accused was totally devoid of any merit. The finding of guilt entered against the accused by the trial Magistrate, after reappraisal of the evidence, has been upheld and approved by the learned Sessions Judge. I do not find any infirmity in the conclusion so reached, concurrently by the two inferior courts. In exercise of revisional jurisdiction, a finding on fact entered by an inferior court is not open to interference unless it is shown to be perverse or it could not have been formed on the materials on record or it is unsustainable under law or such other reason. That being the position, I find, the challenges now raised to assail the conviction of the accused by way of revision is devoid of any merit. So far as the sentence imposed, it is seen, maximum leniency has been shown by the learned Sessions Judge in imposing Crl.R.P. No.1725 OF 2011 5 the punishment, by which the substantive term of imprisonment has been reduced to imprisonment for one day, till the rising of the court. At this stage, the learned counsel for the petitioner submitted that he has already deposited `13,500/- pursuant to directions issued by the Sessions Court for suspending the sentence. Amount, if any, deposited by the petitioner/accused shall be given credit to in the compensation fixed. 4. The petitioner is directed to appear before the Magistrate concerned on 19-09-2011 to serve out the substantive term of imprisonment for one day, till the rising of the court, and to report payment of the compensation awarded. Till then, the learned Magistrate is directed to keep in abeyance the execution of sentence against the revision petitioner/accused. In default of his appearace and nonpayment of the compensation, the Magistrate shall execute the sentence taking appropriate steps in accordance with law. There is no merit in the revision, and it is dismissed, but, subject to the directions as above. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge