IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 Crl.Rev.Pet.No. 1560 of 2010() ------------------------------ CRA.322/2008 of ADDL.SESSIONS COURT, (ADHOC-1), ERNAKULAM CC.1974/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- JOHNSON PARACKAL, AGED 43, ANN MARY'S BANK, ANGAMALY, ERNAKULAM-683572. BY ADV. SRI.E.M.MURUGAN SRI.PETER M.PAUL RESPONDENT(S): RESPONDENT/COMPLAINANT/STATE ------------------------------------------- 1. N.SURESH KUMAR, LAKSHMI VIHAR, NAYARAMBALAM, KOCHI-682509. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. M.K. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No. 1560 OF 2010 ---------------------------------------- Dated 19th Day of May, 2010 ORDER The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act is the revision petitioner who challenges the concurrent finding of the trial court as well as the lower appellate court and the conviction and sentence recorded by the above courts. 2. The case of the complainant is that the accused borrowed a sum of Rs.2 lakhs from the complainant and towards the discharge of the said liability, the accused issued a cheque dated 25.7.2003 for the said amount and when presented the above cheque for encashment, the same was dishonoured as there was no sufficient funds in the account maintained by the revision petitioner. After complying with the statutory formalities, a complaint was filed upon which cognizance was taken and C.C.No.1974/2003 was instituted in the Judicial First Class Magistrate-1, Kochi. During the course of trial, the complainant himself was examined as CRL.R.P.1560/10 -:2:- PW1 and produced Exts.P1 to P5 documents. From the side of the defence, DWs 1 to 3 were examined and produced Exts.D1 to D3. The complainant has adduced evidence in terms of the allegations contained in the complaint which was accepted by the trial court as well as the lower appellate court. The case set up by the defence is to the effect that the accused had no transaction with the complainant and according to the revision petitioner-accused, the cheque in question was entrusted with one George Jashil, who was a friend of the complainant, when he obtained certain loan from that person and the said cheque which was entrusted with him as security, later on in collusion between the complainant and George Jashil, as both of them were working under the same firm, handed over to the complainant and thereby misusing the cheque the complainant preferred this case. In paragraphs 6 to 8 of the judgment the trial court has elaborately discussed the defence version. 3. The learned counsel submitted that both the courts CRL.R.P.1560/10 -:3:- below omitted to consider the case of the defence and considered the merits of the case of the complainant. According to the learned counsel, the courts below tried to find out the loopholes of the defence and came into a conclusion that the accused failed to establish its case. 4. I have considered the contentions raised by the revision petitioner and also perused the judgments of the courts below. As rightly held by the trial court as well as the lower appellate court, the complainant has estbalished its case by producing materials and evidence, especially by producing Ext.P1 cheque from his possession. The trial court has rightly observed that the accused has not disputed the drawal of the cheque , which is pertaining to his account. The signature contained in the cheque is also not seriously disputed. The only plea advanced by the defence is to the effect that Ext.P1 cheque is the one which entrusted with one George Jashil when the revision petitioner/accused availed a loan from him and thus according to the accused, there was no transaction between himself and the complainant. The CRL.R.P.1560/10 -:4:- trial court after considering the evidence on materials and the plea of the accused, has found that the accused had not taken any step against the said George Jashil in not returning the cheque when the amount allegedly borrowed from him was repaid by the accused. It is also relevant to note that it was incumbent upon the accused to demand back the cheque given to the George Jashil as security, when the amount was paid back. On failure of said George Jashil to return back the cheque, it was for the accused to take legal action against him. But in the present case, no action was taken from the side of the defence. If he is sincere and very particular on the plea that the cheque in question was given to the said George Jashil, the accused ought to have initiated appropriate proceedings at least after receiving the lawyer notice from the complainant. But no action was taken and the version of defence is unbelievable. When the complainant has estbalished his case by producing materials, certainly, the court below can give the benefit of section 139 of the N.I.Act in favour of the complainant. If CRL.R.P.1560/10 -:5:- that be so, it was incumbent upon the revision petitioner- accused to discharge his burden of rebutting the presumption, at least by establishing a probable case. Under that count also the revision petitioner fails. Under the above circumstances, I find no merit in the Crl.R.P and I have to approve the concurrent finding arrived at by the courts below and I do so. 5. The learned counsel for the revision petitioner submitted that a lenient view may be taken in the matter of sentence and a breathing time may be granted to deposit the fine amount. The cheque in question is dated 25.7.2003 and now seven years are over. Though the trial court sentenced the revision petitioner to undergo simple imprisonment for one year, the lower appellate court reduced the same to imprisonment till the rising of the court but enhanced the fine amount to Rs.2,10,000/-. Under the above circumstances, according to me, no interference is warranted with respect to the sentence. In the result, this Crl.R.P is dismissed directing the revision petitioner to appear before the trial court on CRL.R.P.1560/10 -:6:- 19.6.2010 to receive the sentence and to deposit the fine amount. If there is any failure on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive step to procure the presence of the revision petitioner and to execute the sentence and to realise the fine amount. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.1560/10 -:7:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..