IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 Crl.Rev.Pet.No. 2850 of 2004(A) ------------------------------------- CRA.327/2003 of ADDL. SESSIONS COURT (ADHOC), THRISSUR ST.2490/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ----------------------------------------------------- VILASINI K., W/O. RAMACHANDRAN, POMBILLIPARAMBIL HOUSE, C-22, ALL INDIA RADIO QUARTERS, RAMAVARAMAPURAM P.O., TRICHUR. BY ADVS. SRI.K.R.KURUP SRI.C.R.SYAMKUMAR SRI.K.J.ABRAHAM SRI.LAVARAJ M.G. SRI.C.R.VINOD KUMAR RESPONDENT(S) RESPONDENT/COMPLAINANT ------------------------------------------------------- 1. K.R.KOHANAN, S/O. RAGHAVAN, KOLLATTU HOUSE, P.O.MANALOOR, THRISSUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.K.N.PADMAKUMAR R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: SVS. P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P.No.2850 of 2004. = = = = = = = = = = = = Dated this the 18th day of August, 2010. O R D E R The Judicial Magistrate of the First Class-II, Thrissur in ST.No.2490/2000 convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for two months with order to pay Rs.80,000/- as compensation to the first respondent under Section 357(3) of the Crl.PC. In Crl.Appeal No.327/2003, the IIIrd Addl.Sessions Court, Adhoc-I, Thrissur, while confirming the conviction, reduced the substantive sentence to imprisonment till the rising of the court with order to pay Rs.one lakh as compensation to the first respondent. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was filed. 2. Having heard the learned counsel for the revision petitioner, who had taken me through the evidence on Crl.R.P.No.2850 of 2004. -: 2 :- record and the learned counsel for the first respondent, I find that the first respondent who was examined as Pw1 had succeeded to establish that the revision petitioner had borrowed a sum of Rs.80,000/- on 10.11.1999 and in discharge of that liability Ext.P1 cheque dated 12.6.1999 was issued and that when presented for collection the cheque was returned bounced for insufficiency of funds as evidenced by Exts.P2 and P3 memos. Demanding discharge of the liability, a lawyer notice, copy of which was marked as Ext.P4 was issued and despite the acknowledgment the same as evidenced by Ext.P6, the liability was not discharged. 3. The revision petitioner took up a defence that Ext.P1 cheque was issued blank as security for a kuri run by a firm in which the first respondent was a partner and subscribed by the revision petitioner. In support of her plea, she had examined the Manager of the firm running the kuri as well as a colleague of the revision petitioner. Exts.D1 to D6 were also marked. Both courts below on Crl.R.P.No.2850 of 2004. -: 3 :- appraisal of the evidence arrived at a conclusion that the evidence of Pw1 supported by Exts.P1 to P6 is believable. Whereas, the defence version is not believable. 4. The learned counsel for the revision petitioner relying on the decisions reported in Gopan v. Tonny Varghese (2008(1) KLT 257) and Bhaskaran Nair v. Mohanan (2009(3) KLT 580) argued that in the light of the defence advanced, the first respondent would have proved execution of the cheque as well as the delivery of the same in discharge of the liability. The burden of proof on the complaint on that aspect is the fundamental principle of criminal jurisprudence. On going through the evidence of Pw1, I find that the first respondent had succeeded to prove the same and the courts below had correctly given reliance to the evidence of Pw1 as nothing is revealed out to disbelieve him. It is pertinent to note that the revision petitioner has not caused any reply to the lawyer notice demanding discharge of the liability. According to her, the notice was entrusted to one of her colleagues, whose Crl.R.P.No.2850 of 2004. -: 4 :- husband is an Advocate and some how or other, the reply was not caused. In the absence of such evidence no reliance can be given to the defence version on that aspect. Dw1 is the Manager of the firm which was running the kuri in which the revision petitioner was said to be a subscriber. Dw1 had deposed that the revision petitioner was a subscriber to a kuri and that was closed on 16.3.1999. But it is crucial to note that the revision petitioner has not made a suggestion to Dw1 that Ext.P1 cheque was delivered as a security at the time when the prize money was received by her. In the above circumstance, the courts below were justified in discarding the defence contention that Ext.P1 was issued as a security for the kuri transaction. 5. Dw2, the colleague of the revision petitioner was examined and Exts.D2 to D6 were relied upon to bring on record that the revision petitioner was on leave from 17.5.1999 to 25.6.1999 by availing LTC. The evidence of Dw2 would show that the revision petitioner had availed the leave. But the evidence of Dw2 is not sufficient enough to Crl.R.P.No.2850 of 2004. -: 5 :- come to a conclusion that the revision petitioner had actually gone out of station after availing the leave on the date of cheque. So, the defence plea of alibi also could not be established. In the above circumstance, the courts below were right in arriving at a finding that the evidence of Pw1 regarding the execution and delivery of cheque was established by his testimony. The evidence of Pw1 is further corroborated with the presumptions under Sec.118 and 139 of the N.I.Act that Ext.P1 was drawn for valuable consideration and issued in discharge of the liability. The evidence of Dws.1 and 2 along with Exts.D1 to D6 is not sufficient enough to rebut the above presumption in support of the evidence of Pw1. In fact, the evidence of Pw1 regarding the execution of the cheque and delivery of the same remains uncontroverted. 6. The ratio of the decisions referred is not applicable to the case on hand as it is relating to a case where evidence of the complainant was disbelieved by the trial court and acquitted. Here, the trial court as well as Crl.R.P.No.2850 of 2004. -: 6 :- the appellate court disbelieved the evidence adduced by the revision petitioner. The silence of the revision petitioner after acknowledging the notice also looms large. The excuse for not causing reply is not convincing. I find that the courts below had correctly appreciated the evidence and arrived at a right conclusion of guilt. The conviction under challenge is unassailable. 7. The appellate court was very lenient in reducing the sentence to one of imprisonment till the rising of the court. Even if the appellate court had gone wrong or erred in sentencing, it is only towards leniency. There is no room for any interference. The revision petition is devoid of merits. Accordingly it is dismissed. The revision petitioner is granted two months time to remit the compensation amount. P.S.GOPINATHAN, (Judge) Kvs/-