IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 Crl.Rev.Pet.No. 1492 of 2011() ------------------------------ CRA.260/2010 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA ST.997/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... REVN. PETITIONER(S): --------------------- K.S.MOHAMMED IBRAHIM S/O.SAIDU MUHAMMED RAWTHER, KARAKKAD HOUSE,P.O.NADACKAL, ERATTUPETTA NOW RESIDING AT C/O.LAWRENCE CHAYIKODATH (H) MASJID ROAD,DRA-68, CHALIKAVATTAM, ERNAKUALM BY ADV. SRI.TITUS MANI SRI.VINO JOSE RESPONDENT(S): --------------- 1. MAS ENTERPRISES LTD, VANDANMEDU REP.BY ITS GENERAL MANAGER RAJAN SATHI P.V, 2. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J ----------------------------- Crl.R.P.No.1492 of 2011 ---------------------------------------- Dated this the 13th day of June, 2011 ORDER The accused in a prosecution for the offence Under Section 138 of the NI Act is the revision petitioner. The challenge is against his conviction and sentence for the said offence. 2. The case of the complainant is that the complainant company engaged in the business like authorized cardamom auctioners, cardamom exporters, suppliers of fertilizers etc. and the accused being a cardamom planter, was one of the customers of the company and regular buyer of fertilizers and chemicals for the last several years. Thus, according to the complainant the accused issued Ext.P2 to P5 cheques which when presented for encashment, dishonoured due to the insufficiency of funds in the account of the accused and thus, Rs.2,06,000/- due to the complainant and no amount was paid inspite of Ext.P10 notice. The trial court as well as the appellate court accepted the contention and claim of the complainant and found that the accused is guilty under Section 138 of the NI Act and accordingly, he is convicted. 3. The learned counsel for the petitioner submitted that there is no transaction between the petitioner and the Crl.R.P.No.1492 of 2011 2 complainant after 2002 and according to the counsel for the petitioner, the transaction between the complainant and the accused were only up to 2002 and all liabilities that arose out of the transaction for the period prior to 2002 were discharged. Thus, according to the learned counsel for the petitioner, there is no liability till 2002 and therefore, the findings of the court below is liable to be set aside. 4. I am unable to accept the above contention. In this juncture, it is relevant to note that though Ext.P10 notice was issued as contemplated by Section 138 of the NI Act, no reply was given by the accused and the accused returned the notice as unclaimed. As per the very version of the defence that though after 2002, there was no transaction between the revision petitioner and the complainant, he admits the transaction prior to 2002. It is also the further case of the defence that although the liability that arose out of transaction prior to 2002 has discharged, no evidence is adduced by the defence to prove the case of discharge. The accused is not specific in his claim regarding the discharge. The details as to when was the cheques given, which was the transaction and when was the discharge etc. there is no pleadings. When the accused admits Crl.R.P.No.1492 of 2011 3 the transaction, though not as claimed by the complainant, it is for the accused to establish or prove the admitted transaction. In the absence of any proof atleast for the admitted transaction, the case of the defence regarding the discharge has to be rejected. Vague and mere explanation is sufficient to discharge the burden of presumption under Section 139 of NI Act. The trial court as well as the appellate court after an elaborate consideration of the evidence and materials on record and after considering the case of the defence came into the conclusion that the story put forward by the accused cannot be believed. In the light of the above facts and circumstances, I find no reason to interfere with the concurrent findings arrived on by the court below. 5. With regard to the sentence, it is relevant to note that, though the trial court sentenced the revision petitioner to undergo 6 months simple imprisonment and to pay compensation of Rs.2,06,000/- the appellate court reduced the sentence of imprisonment till the rising of the court and confirmed the direction to pay compensation. Accordingly, the revision petitioner was directed to appear before the trial court on 17.5.2011 to receive the modified sentence and to pay Crl.R.P.No.1492 of 2011 4 compensation amount. In the light of the above order of the appellate court, I find no reason to interfere with the sentence also. The revision petitioner shall appear before the trial court on 18.7.2011 to receive the modified sentence and to pay the compensation amount, failing which the trial court is free to take coercive steps for the execution of the sentence and for realisation of the compensation amount. Subject to the above extension of time, this revision petition is dismissed. V.K.MOHANAN, JUDGE pm/