IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 Crl.Rev.Pet.No. 2685 of 2004(A) ---------------------------- CRA.58/2003 of ADDL. SESSIONS COURT (ADHOC), KALPETTA CC.692/2001 of JUDL. FIRST CLASS MAGISTRATE COURT II, SULTHANBATHERY .................. REVISION PETITIONER / APPELLANT / ACCUSED: ----------------------------------------------------------------------- P.A. SATHYAN, PATTANMAR VALAPPIL HOUSE, UDAYAKAVALA, CHETTAPPALAM P.O., PULPALLY, WAYANAD. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT / RESPONDENT / COMPLAINANT: -------------------------------------------------------------------- 1. M.U. WILSON, S/O. UDUP, MOOLAKKATTU HOUSE, MULLANKOLLY P.O., PULPALLY, WAYANAD. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI. JIJO PAUL R2 BY PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn A.K.BASHEER J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Crl.R.P. No. 2685 of 2004 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 2nd day of July, 2010 O R D E R Petitioner who has been concurrently found guilty under section 138 of the Negotiable Instruments Act by the trial court as well as the appellate court has filed this revision petition, challenging the conviction and sentence passed against him. 2. The trial court found the petitioner guilty under section 138 of the Act and convicted and sentenced him to undergo simple imprisonment for six months and to pay compensation of Rs.1,30,000/- to the complainant under section 357(3) of the Code of Criminal Procedure and in default of payment of compensation to undergo simple imprisonment for a further period of three months. 3. In appeal, the Sessions Court while confirming the order of conviction, modified the sentence and directed the petitioner to pay a sum of Rs.5,000/- as fine and in default Crl.RP 2685/04 2 to undergo simple imprisonment for one month. He was directed to pay a sum of Rs.1,30,000/- as compensation to the complainant and in default, to undergo simple imprisonment for three months. 4. The case of the respondent No.1/complainant before the trial court was that petitioner/accused borrowed a sum of Rs.1,30,000/- and issued Ext.P1 cheque dated 2-10- 2000. But, when the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the petitioner. Though statutory notice was issued by the complainant, the liability was not discharged by the petitioner. Hence the complaint. 5. The complainant was examined as PW1 and Exts.P1 to P7 were marked on his side. There was no oral or documentary evidence on the side of the defence. 6. The definite case set up by the petitioner/accused was that he had not borrowed any amount from the complainant as alleged. According to the petitioner, he borrowed a sum of Rs.1,30,000/- from one Pious and he had Crl.RP 2685/04 3 issued Ext.P1 cheque to the said Pious as security for the loan availed of by him. The further case of the petitioner, as discernible from the suggestions put by his counsel in the cross-examination of PW1, was that he repaid Rs.99,000/- to Mr.Pious. But, as rightly noticed by the courts below, no evidence was adduced by the petitioner to substantiate the above contention. 7. It is vehemently contended by the petitioner that in the course of his cross-examination the complainant (PW1) admitted that he had availed of a loan of Rs.30,000/- from a bank in September, 2000 in order to make payment to the petitioner. But, in the complaint the petitioner stated that the transaction between him and the petitioner took place in August. It is contended by the petitioner that this vital contradiction was not properly considered by the courts below. 8. The above contention, in my view, is wholly untenable. Even, according to the petitioner, the complainant had availed of a loan of Rs.30,000/- from the Crl.RP 2685/04 4 bank and the balance amount of Rs.1,00,000/- was available with him from his pepper business. Any way even if the complainant had committed a mistake in the complaint while referring to the month of transaction, in the totality of the facts and circumstances of the case, I am satisfied that the alleged discrepancy will not in any way affect the credibility of the case of the complainant, especially since the petitioner has no case that Ext.P1 cheque did not bear his signature. 9. Ext.P1 cheque clearly revealed that it was drawn in the name of the complainant. Petitioner/accused did not dispute his signature in the said cheque. Moreover, if in fact there was any loan transaction between the petitioner and Mr. Pious, as contended by him, he should have adduced evidence in this regard. Further, if in fact, he has a case that he had repaid a sum of Rs.99,000/- to Mr. Pious, he must necessarily have obtained acknowledgment for such payment from Mr.Pious. No such document was produced. In short, there was absolutely no evidence from the side of Crl.RP 2685/04 5 the petitioner to substantiate his contention that he had had no such transaction with the complainant. 10. The courts below rightly, in my view, found that the case of the complainant was satisfactorily proved and the burden cast on the petitioner under section 139 of the Negotiable Instruments Act was not discharged at all. In that view of the matter, I do not find any reason to interfere with the concurrent order of conviction passed against the petitioner. In the matter of sentence also, I do not find any reason to interfere. Accordingly, the revision petition is dismissed A.K.BASHEER, JUDGE. mn.