IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 Crl.Rev.Pet.No. 2585 of 2010() ------------------------------ CRA.770/2008 of II ADDL. SESSIONS COURT, TRIVANDRUM ST.1847/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT II,VARKALA. .................... REVISION PETITIONER(S): (APPELLANT/ACCUSED): ------------------------------------------------------------------------ MRITHYUNJAYAN NAIR, S/O. KESAVA PILLAI, M.L.SILK PALACE, KALLAMBALAM, THIRUVANANTHAPURAM. BY ADVS. SRI.M.R.RAJESH, SMT.A.K.PREETHA, SRI.K.M.ALEXANDER. RESPONDENT(S): (RESPONDENTS/COMPLAINANT AND STATE): ----------------------------------------------------------------------------------------------- 1. JANANAN, S/O. GOVINDAN, GOVINDA BHAVAN, EDAVA VILLAGE, VENKULAM DESOM, THIRUVANANTHAPURAM, PIN-695 311. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 31. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 2585 of 2010 ---------------------------------------- Dated the 31st August, 2010 ORDER Challenging the concurrent findings of the trial court as well as the lower appellate court against the revision petitioner who is the accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act and the conviction and sentence imposed against him, preferred this Crl.Revision Petition. 2. The case of the complainant is that the accused borrowed an amount of Rs.1,85,000/- from him and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 20.7.2006 for Rs.1,85,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to send demanding him to pay the amount covered by the cheque, and as no amount was paid, the revision petitioner committed the offence under section 138 of the NI Act. With the above allegation, initially, the complainant approached Crl.R.P.No.2585/10 -:2:- the court of Judicial First Class Magistrate-I, Varkala by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted S.T.No.1847/2006, which was subsequently transferred to the trial court. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P6 as documentary evidence. Though no witness was examined from the side of the defence, Ext.D1 reply notice was got marked. The trial court, after consideration of the entire materials and evidence on record, found that the complainant has established the allegation against the accused beyond doubt and thus Section 138 of the N.I.Act is attracted against the revision petitioner. On such finding, the trial court convicted the revision petitioner under section 138 of the Act and sentenced him to undergo simple imprisonment for 4 months and also sentenced to pay a fine of Rs.1,90,000/-. The default sentence is fixed as two month's simple imprisonment. It is also ordered that on realisaiton of the fie amount, a sum of Rs. 1,85,000/- shall be paid to the complainant as compensation. Aggrieved by the Crl.R.P.No.2585/10 -:3:- above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 21.6.2010 in Crl.A.No.770/2008, the court of Addl. Sessions Judge-II, Thiruvananthapuram allowed the appeal only in part and thus while confirming the conviction of the revision petitioner under section 138 of the NI Act, the sentence of imprisonment ordered by the trial court is modified and reduced to imprisonment till rising of the court. While confirming the sentence of fine, the lower appellate court enhanced the fine amount to the tune of Rs.1,95,000/- and the default sentence fixed as 4 months simple imprisonment. It is also ordered that on realisation of the fine amount as revised and refixed by the appellate court, the entire amount shall be paid to the complainant as compensation and accordingly, the revision petitioner was directed to appear before the trial court on 13.8.2010 to serve the modified sentence. It is the above conviction and order of sentence challenged in this Crl.R.P. 3. I have heard Sri M.R.Rajesh, the learned counsel appearing for the revision petitioner and also perused the Crl.R.P.No.2585/10 -:4:- judgments of the trial court as well as the lower appellate court. 4. The learned counsel for the revision petitioner vehemently argued that the complainant has miserably failed to establish the execution of the cheque in question and the parting of consideration. The learned counsel pointed out the defect in the evidence of PW1 regarding the transaction. It is also the submission of the learned counsel that the complainant had already admitted the transaction between the complainant and the accused with respect to Rs.80,000/- which was an amount borrowed by the accused from the complainant on 21.4.2001. It is also the case of the learned counsel that though the accused has a case that he had borrowed certain other amounts on three occasions during the year 2002 and the said amounts were already paid to the complainant, the complainant has not admitted the said version of the accused. It is the specific contention of the learned counsel that when PW1 was cross examined regarding the source for the amount claimed to have been given by the complainant to the accused, though the Crl.R.P.No.2585/10 -:5:- complainant has admitted to produce documents regarding the source for which he raised fund that given to the accused, the complainant has not fulfilled that undertaking and therefore, according to the learned counsel, the transaction claimed by the complainant is absolutely false, baseless and the same has not been proved beyond reasonable doubt. 5. I am unable to sustain the above contentions. While considering the revision Petition filed by the accused who challenged the concurrent findings of the trial court as well as the lower appellate court, it can be seen that the two courts below found that Ext.P1 cheque was issued towards the discharge of the liability that due to the complainant from the side of the accused and that the accused has no convincing explanation or probable case as to how Ext.P1 cheque reached in the hands of the complainant. As I indicated earlier, according to the accused, he had certain transaction with the complainant and connected with the transaction that took place, prior to the year 2006 and the cheque in question was issued as a security. The complainant mounted Crl.R.P.No.2585/10 -:6:- to the box and deposed before the court in terms of his allegation in the complaint and also produced Ext.P1 cheque which contained the signature of the account holder, the accused. Had the accused has got a case that he had discharged whatever liability that was due to the complainant, it is for him to establish that version and that claim. It is relevant to note that the complainant has not admitted the version given by the accused regarding the loan availed by the accused, i.e., Rs.1,00,000/- on 6.5.2002; Rs.30,000/- on 18.7.2002 and Rs.50,000/- on 5.8.2002. But the complainant has admitted that the accused borrowed a sum of Rs. 80,000/- on 21.4.2001. If that be so, it is for the accused to show that at least that amount has been paid back to the complainant and if the cheque in question was given as security connected with that transaction, it is also for the accused to show that after payment of that amount, why he had not demanded back the cheque and if the complainant had wilfully kept the cheque with him, why no action was taken for getting back that cheque and absolutely there is no convincing explanation for the same. Crl.R.P.No.2585/10 -:7:- The contention of the learned counsel regarding the capacity of the complainant to pay the amount of Rs. 1,84,000/- and his failure to produce the documents though he had undertaken at the time of evidence, according to me, there is no much relevance for the same, especially when the accused has admitted that he had availed loan from the complainant and according to him, he had borrowed a sum of Rs.80,000/- on 21.4.2001 and the same was repaid and also considering the allegation of the accused that he had availed a loan from the complainant subsequently. In the light of the above facts and circumstances, I find no reason to interfere with the concurrent finding of the trial court as well as the lower appellate court. Therefore, the conviction recorded by the courts below is approved accordingly. 6. As I am not inclined to interfere with the order of conviction, the learned counsel for the revision petitioner submitted that a breathing time may be granted to the revision petitioner to pay the fine amount especially considering the fact that though the appellate authority has disposed of the matter by judgment dated 21.6.2010, so far Crl.R.P.No.2585/10 -:8:- no appeal or revision petition is preferred by the complainant challenging the sentence on the ground of inadequacy. In the result, this Crl.R.P is disposed of confirming the conviction of the revision petitioner under section 138 of the N.I.Act recorded by the courts below and also while confirming the sentence to pay fine, the revision petitioner is granted three months time to pay the fine amount and the default sentence will be attracted and executed only in case of failure in paying the fine amount within the above stipulated time. Accordingly, the revision petitioner is directed to deposit the fine amount as fixed by the lower appellate court within three months from today. Accordingly, the revision petitioner is directed to appear before the trial court on 30.11.2010 to receive the sentence of imprisonment and to pay the fine amount. If there is any default on the part of the revision petitioner in appearing before the trial court on 30.11.2010, the trial court is free to take coercive steps to realise the fine amount. On realisation of the fine amount, the entire amount shall be Crl.R.P.No.2585/10 -:9:- paid to the complainant as compensation under section 357 (1)(b) Cr.P.C. Coercive step, if any, pending against the revision petitioner shall be kept in abeyance till 30.11.2010. This Crl.R.P is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-