IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 1152 of 2007() ------------------------------ CRA.625/2004 of ADDL.SESSIONS COURT (FAST TRACK-I), ALAPPUZHA CC.127/2002 of JUDL.MAGISTRATE OF FIRST CLASS-II(MOBILE), ALAPPUZHA .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------- K.M.PAREED, AGED 55 YEARS, S/O. MOHAMMED, PROPRIETOR, UNION SAW MILLS, MANAKKAT, ERATTUPETTA. BY MR.K.S.HARIHARAPUTHRAN,ADVOCATE MR.GEORGE MATHEW, ADVOCATE MR.A.V.TELLES,ADVOCATE RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------------------------------------------------------ 1. M.N.MURALEEDHARAN NAIR, PROPRIETOR, PARAYIL TIMBERS, EXCHANGE ROAD, ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SMT.ELIZABETH MATHAI IDICULLA, ADVOCATE FOR R1 MR.MOHAN IDICULLA ABRAHAM,ADVOCATE FOR R1 MR.MARTIN D.ALUMKARA,ADVOCATE FOR R1 SMT.PUSHPY B.MURICKEN,ADVOCATE FOR R1 PUBLIC PROSECUTOR MR.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/12/2009 , ALONG WITH CRRP NO. 1153 OF 2007 & CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN,J. ============================= Crl.R.P.Nos.1152, 1153,1159 & 1161 of 2007 ============================= Dated this the 17th day of December, 2009 ORDER These revision petitions were filed assailing the common judgment in Crl.Appeal Nos.625, 626, 627 & 628/ 2004 on the file of the Addl. Session Judge (Fast Track-I) Alappuzha. Hence these revision petitions are disposed by a common order. Parties are the same in all the cases. The first respondent herein prosecuted the revision petitioners for offence under Section 138 of the Negotiable Instruments Act in C.C.Nos.127/2002, 36/2003, 37/2003 and 38/2003, on the file of the Judicial Magistrate of First Class-II, Alappuzha. All the cases were tried jointly. The trial court found the revision petitioner guilty in all cases, convicted and sentenced to simple imprisonment for three months and to pay Rs.1,50,000/- to the first respondent as compensation under Section 357(3) of Cr.P.C. in all cases. He was further directed to pay Rs.2,000/- each as costs. Assailing the conviction and sentence, earlier mentioned appeals were filed. The revision petitioner was not successful. Now these revisions. Crl.R.P.Nos.1152, 1153,1159 & 1161 of 2007 2 2. Having heard either side and perusing the records, I find that the first respondent who was examined as PW1 supported by Exts.P1, P2, P3, P4, P5 & P6 had succeeded to establish that the revision petitioner and the first respondent entered into Ext.P1 agreement regarding timber transaction and in pursuance of Ext.P1 the revision petitioner had received Rs.7,50,000/- from the first respondent. Rs.6,00,000/- were paid by a demand draft and the remaining Rs.1,50,000/- were paid in cash for which Ext.P2 receipt was obtained. Ext.P1 is dated 10.10.2001. The agreement was to supply timber within one month. But the revision petitioner failed to supply the timber as agreed by Ext.P1. In return of money Exts.P3 to P6 cheques each for Rs.1,50,000/- dated 20.12.2001, 31.1.2002, 20.2.2002 and 30.3.2002 respectively were delivered to the first respondent. When sent for collection Exts.P3 to P6 were returned bounced for insufficient funds as evidenced by Exts.P7, P8, P12, P13, P17, P18, P22 & P23 memos. Demanding discharge of liability four separate notices were issued, one on 3.07.2002 and other three on 5.8.2002. Exts.P9, P14, P19 and P24 are the copies of the notices. Though the revision petitioner Crl.R.P.Nos.1152, 1153,1159 & 1161 of 2007 3 acknowledged the notices as evidenced by Exts.P11, P16, P21 and P26, the liability was not discharged. 3. The revision petitioner took up a defence that the cheques were issued as security and later he supplied timber worth Rs.5,74,653/-. The revision petitioner was examined as DW1. In support of his plea regarding the supply of timber DWs. 2 to 5 were also examined. It is not disputed that the so called supply of the timber is after the launching of prosecution. The plea of discharge itself is an admission of existence of liability. The evidence of PW1 coupled with Exts.P1 to P6 would show that there was outstanding liability. The evidence of the revision petitioner as DW1 is not at all convincing to come to a conclusion that Exts.P3 to P6 were issued as a security. The consistant evidence of PW1 is that Exts.P3 to P6 were issued in discharge of the liability. The evidence of DW1 is not at all sufficient to reject the evidence of PW1. Neither the case advanced by the revision petitioner appears to be probable. The evidence of PW1 regarding liability, delivery of cheque, dishonour for want of funds, demand to discharge liability and failure to discharge liability are convincing. Courts below had rightly arrived a Crl.R.P.Nos.1152, 1153,1159 & 1161 of 2007 4 concurrent finding. So, offence u/s.138 of the Negotiable Instruments Act is established. Subsequent discharge, even if it is true wouldn't entitle the revision petitioner to get an order of acquittal. Subsequent discharge after launching prosecution may be a relevant factor to determine the compensation. In the above circumstances, I find that the concurrent finding of conviction is not liable to be interfered in revision. 4. It is in support of the plea of the supply of timber after launching prosecution Dws. 4 and 5, two lorry drivers were examined. Exts.D1(a), D1(b) and D1(c) are the carbon copies of the bills said to have been issued by the revision petitioner. Exts. D2(a), D2(b) and D3(a) goods vehicle records were also marked in support of the plea of the delivery of the timber which the first respondent had denied. DWs.4 and 5 had deposed that they delivered the timber at the yard of the complainant. Curiously they did not obtain signature in acknowledgment of the timber. The revision petitioner or his witnesses have no good explanation for not obtaining the acknowledgment of the timber either from the first respondent or from his employees, if any. In the absence of acknowledgment regarding delivery of Crl.R.P.Nos.1152, 1153,1159 & 1161 of 2007 5 timber, no credibility can be given to the oral testimony. 5. The learned counsel for the revision petitioner argued that Exts.P27 to P32, three copies of the bills and three copies of the GVR produced from the office of the Sales Tax Officer, Alappuzha, where PW2 was working as Sales Tax Officer were brought at the instance of the first respondent and those documents would prove the delivery of the timber at the yard of the first respondent. It is pertinent to note that Exts.P27 to P32 are carbon copies. Adding to that PW2 is not in a position to explain as to how he got those documents. He has no case that those documents were produced by the first respondent. The materials on record would show that the first respondent requested to reopen the evidence and to summon PW2 to produce the copy of the documents in the light of the evidence adduced by the revision petitioner. Though, Exts.P27 to P32 would show that certain timbers were transported to the yard of the first respondent no reliance can be given to those documents to disbelieve PW1 since those documents also did not contain acknowledgment by the first respondent. PW2 is not in a position to say as to from where those documents were received. Crl.R.P.Nos.1152, 1153,1159 & 1161 of 2007 6 PW2 had deposed that those documents might have been sent to his office by post. That being the testimony of PW2, the authenticity of Exts.P27 to 32 could not be established. According to the learned counsel for the revision petitioner, Exts.P27 to P32 are corresponding to Exts.D1 to D3. For that reason alone no reliance can be given to Exts.P27 to P32. It is also pertinent to note that the so called supply of timber was after the launching of the prosecution. In the normal course the revision petitioner would have obtained some receipt for the supply. But no any such receipt obtained. In the above circumstances, the courts below were right in rejecting the plea of delivery of timber. Such being the evidence on record, I find that the plea of discharge is also devoid of truth. 6. It is submitted by the learned counsel for the revision petitioner that the revision petitioner is an acute diabetic patient and now hospitalised and had been undergoing treatment. Taking into account of that aspect and that the prosecution arose out of business transaction, I find that the revision petitioner is entitled to a little leniency in sentence and that a sentence of imprisonment till rising of the court with direction to pay the Crl.R.P.Nos.1152, 1153,1159 & 1161 of 2007 7 compensation as ordered by the trial court would meet the ends of justice. The order to pay separate cost is not sustainable. In the result, the revision petition is allowed in part. While confirming the conviction, the sentence is reduced to imprisonment till rising of the court. The order to pay compensation is sustained with a default sentence of simple imprisonment for six months in each case. The order to pay separate costs is set aside. The revision petitioner is granted one month time to remit the compensation. P.S.GOPINATHAN, JUDGE. dvs