IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 4476 of 2006() ------------------------------ CRA.450/2005 of ADDL.SESSIONS COURT, KOTTAYAM CC.976/2002 of JUDL. MAGISTRATE OF FIRST CLASS, VAIKOM .................... REVN. PETITIONER: PETITIONER/REVN. PETITIONER ------------------------------------------------ M.UNNIKRISHNAN NAIR, LIBRARY ASSISTANT, GURUVAYOORAPPAN COLLEGE P.O., KOZHIKODE-14. BY ADV. SRI.P.K.RAMKUMAR RESPONDENTS: RESPONDENTS --------------------------- 1. P.LAKSHMANAN PILLAI, S/O. PADMANABHAN PILLAI, SREEKUMARAN HOUSE, VAIKOM, THEKKENADA P.O., NADUVILE VILLAGE, VAIKOM TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1 SRI.PREM DOMINIC FOR R1 PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/12/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ----------------------------------- Crl.R.P.No.4476 of 2006 ----------------------------------- Dated this the 11th day of December, 2009 ORDER The first respondent filed a complaint as C.C.No.976 of 2002 before the Judicial Magistrate of the First Class-I, Vaikom against the revision petitioner alleging offence under Section 138 of the Negotiable Instruments Act with a plea that on 18/11/2001 the revision petitioner borrowed a sum of Rs.25,000/- from the first respondent and in discharge of the liability a cheque dated 18/3/2002 for the said amount drawn on State Bank of Travancore, Calicut, Palayam branch was issued and that when sent for collection, Ext.P1 was returned bounced for insufficiency of funds. Though notice demanding discharge of the liability was acknowledged by the revision petitioner, the liability was not discharged. 2. The revision petitioner pleaded not guilty. He was sent for trial. On the side of the first respondent, he was examined as PW.1 and Exts.P1 to P7 were marked. When questioned under Section 313 of the Code of Criminal Procedure, the revision petitioner denied the incriminating evidence and stated that the cheque in dispute was the one Crl.R.P.No.4476 of 2006 2 stolen by one Sasivarma, a resident of Kozhikode and misusing that stolen cheque, the first respondent, a close associate of that person, the prosecution was launched and that regarding the theft of cheque, alleging offences under Sections 379, 465, 468, 471 and 34 I.P.C, a complaint, copy of which was marked as Ext.D7, was filed before the Chief Judicial Magistrate, Kozhikode and had been pending. The revision petitioner was examined as DW.1. Manager of the Bank was examined as DW.2 and Exts.D1 to D10 were marked. On appraisal of the evidence on record, the learned magistrate arrived a conclusion in favour of the first respondent. Consequently the revision petitioner was convicted and sentenced to simple imprisonment for six months and to pay Rs.25,000/- as compensation to the first respondent with a default sentence of simple imprisonment for two months. 3. Aggrieved by the above conviction and sentence the revision petitioner filed Criminal Appeal No.450 of 2005. The Additional Sessions Judge, Kottayam, by judgment dated 14/7/2006, while confirming the conviction, reduced the substantive sentence to imprisonment till rising of the court. The order to pay compensation was sustained. As against the Crl.R.P.No.4476 of 2006 3 conviction and sentence as modified in appeal, this revision petition was filed. Having heard either side and perusing the records, I find that in Ext.D7 complaint filed by the revision petitioner before the Chief Judicial Magistrate, Kozhikode alleging theft of cheque it is specifically mentioned in paragraph 3 that cheque bearing No.392921 to 392925 were the cheques alleged to have been stolen by the close associate of the first respondent, though in Ext.D2 letter to the Bank Manager, it is mentioned that one of the cheques stolen is Ext.P1. Whereas Ext.P1 is a cheque bearing No.392926. If the averments in Ext.D7 complaint is given regard, Ext.P1 is not the stolen cheque, but the stolen cheques are with Nos.392921 to 392925. In the above circumstance, it had to be concluded that the revision petitioner has no consistent case. His story of theft is to be disbelieved. 4. The evidence of PW.1 is convincing regarding the borrowal, delivery of cheque, dishonour of the same, issuance of notice demanding discharge of the liability and failure to discharge the liability. Though PW.1 was subjected to a searching cross-examination, no material was disclosed to disbelieve him. It is in the above circumstance, the Crl.R.P.No.4476 of 2006 4 courts below disbelieved the defence theory and believed the evidence of PW.1 which is further supported by the legal presumptions under Sections 118 and 139 of the Negotiable Instruments Act. I find no error, illegality or impropriety committed by the courts below in arriving concurrent finding of guilt and conviction. The conviction is based upon cogent evidence. No interference in revision is warranted. 5. In appeal, the learned Additional Sessions Judge was very lenient in reducing the substantive sentence to imprisonment till rising of the court. The order to pay compensation is quite appropriate. No reason is there to interfere with the sentence also. In the result, this revision petition is devoid of merit. Accordingly, it is dismissed. The revision petitioner is granted two months time to pay the compensation. The amount if any already deposited shall be credit to. P.S.GOPINATHAN, JUDGE skj