IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 Crl.Rev.Pet.No. 2476 of 2011() ------------------------------ CRA.154/2009 of ADDL. SESSIONS COURT (ADHOC)-1, PATHANAMTHITTA ST.843/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA .................... REVN. PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------ SURENDRAN @ BALAN, NEDIYAKALAKIZHAKKETHIL, PARIYARAM P.O., ELANTHOOR, PTHANAMTHITTA. BY ADVS. SRI.M.T.SURESHKUMAR SRI.R.RANJITH RESPONDENT/RESPONDENT & STATE: ------------------------------------------------------ 1. M.LATHEEF,PAZHAYA VEEDU, KULASEKHARAPETTA, PATHANAMTHITTA 686645. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. BY PUBLIC PROSECUTR SMT. SEENA . R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK S.S.SATHEESACHANDRAN, J -------------------------------------- Crl. R.P No.2476 OF 2011 ----------------------------------------- Dated this the 21st day of October 2011 ORDER The revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently by the two courts below. Sentence imposed against the accused, as affirmed by the learned Sessions Judge in appeal, is imprisonment till the rising of the court with direction to pay compensation of `.60,000/-, to the complainant, with default term of simple imprisonment for six months. Feeling aggrieved, the accused has filed this revision. 2. The learned counsel for the petitioner/accused submitted that the defence raised, impeaching the execution of the instrument and also transaction with the complainant, was not properly appreciated by both the courts below, and it has resulted in forming wrong conclusions causing miscarriage of justice. The evidence let in by the accused, examining the Manager of the bank in which he maintained an account, who was examined as DW1, would clearly shown that long before the transaction alleged by the complainant and also the date covered by Ext.P1 cheque, his account had ceased to be operative. The cheque which was returned under Ext.P2 dishonour memo with endorsement 'refer to drawer', in the aforesaid circumstance, according to the counsel, would not in any way assist Crl. R.P No.2476 OF 2011 - 2 - the complainant in any manner to prove that such instrument had been issued towards discharge of a legally enforcible debt or liability from the accused. It is further contended that in the light of the challenge raised, denying the execution, positive evidence from the complainant proving the transaction and also the issue of the cheque to him as alleged by letting independent evidence was warranted, but none was tendered other than that of the interested version of the complainant as PW1. Both the courts have gone wrong in relying upon the evidence of the complainant to found a conviction against the accused, is the submission of the counsel. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find no merit in the submissions made by the counsel for the petitioner. Whatever be the evidence let in by DW1, the branch Manager, that the account of the accused was inoperative, evidently, the cheque presented, which arose from his account was returned with endorsement 'refer to drawer'. There was no transaction in the account over a period of time is not sufficient to hold that the account has been closed. The account was not operated by the accused and even assuming that it was closed at the point of time when the cheque was issued by him, would not relieve him from the offence covered by Section 138 of the Crl. R.P No.2476 OF 2011 - 3 - NI Act when the essential ingredients constituting such offence have been established in the case. So much so, the challenge raised that the account of the accused at the point of time when the cheque was presented remained inactive over a period of time, does not assist the accused in wriggling out of the penal consequences arising from the dishonour of the cheque provided there is positive evidence that it had been issued by him towards discharge of a debt or liability. So far as the denial of transaction and execution of Ext.P1 cheque by the accused, it is seen, on dishonour of that instrument a statutory notice was issued by the complainant, which after being acknowledged, was not responded with any reply, leave alone any payment. The accused who has denied the transaction and also execution of Ext.P1 cheque, despite production of Ext.P5 acknowledgment card, corroborating the evidence of the complainant, examined as PW1, did not mount the box to swear in support of his defence. What remained was only the challenges raised by the accused without any material in support thereof. The conclusion formed by the Magistrate relying on the evidence of the complainant examined as PW1, whose testimony was found trustworthy to hold that the transaction relating to Ext.P1 cheque and also issue of that instrument by the accused as alleged by him had been established by the materials, after Crl. R.P No.2476 OF 2011 - 4 - reappraisal of the evidence has been affirmed by the learned Sessions Judge as well. Finding on fact entered by the two inferior courts on that material question is not liable to be disturbed in exercise of revisional jurisdiction unless it is shown that such conclusion is perverse on any ground whatsoever. No such case has been made out in the revision by the accused and, so much so, I find, there is no merit in the challenges raised against his conviction. 4. So far as the sentence imposed, the default term of imprisonment fixed for a sum of `.60,000/- covered by the instrument appears to be excessive, warranting reduction. In all other respects, sentence has to be affirmed. 5. At this stage, the learned counsel for the revision petitioner/accused requested for some more time to pay the compensation awarded and, thus, avoid his incarceration in prison in default of payment. 6. Affirming the conviction, the accused is sentenced to undergo imprisonment till the rising of the court and to pay compensation of `.60,000/- with default term of simple imprisonment for two months. The accused shall appear before the Magistrate on 20-12-2011 to serve out the imprisonment till the rising of the court, and to report payment of the compensation. The learned Magistrate Crl. R.P No.2476 OF 2011 - 5 - is directed to keep in abeyance the execution of sentence against the accused till the date fixed as above for his appearance, to enable him to pay the amount within such period. In default of his appearance and nonpayment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge