IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 Crl.Rev.Pet.No. 2821 of 2004 -------------------------------------- CRA.330/1998 of SESSIONS COURT, THALASSERY CC.265/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, KANNUR .................... REVISION PETITIONER / APPELLANT / ACCUSED :- -------------------------------------------------------------------------- PONMANI GANESHAN, MAVILA VAYAL HOUSE, NEAR CHIRAKKAL RAILWAY GATE, CHIRAKKAL P.O., KANNUR. BY ADVS. SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP RESPONDENTS / RESPONDENTS / COMPLAINANT AND STATE : - -------------------------------------------------------------------------------------------- 1. K. PREMARAJAN, S/O.K. KELU, KURIKKALAKATH HOUSE, P.O.PALLIKKUNNU, KANNUR. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADVS. SRI.V.R.KESAVA KAIMAL FOR R1 SRI.N.M.MADHU FOR R1 PUBLIC PROSECUTOR SRI. T.R. RAJESH FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DMR/- S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2821 OF 2004 ----------------------------------------- Dated this the 4th day of November 2011 ORDER Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently, by the two courts below. Sentence imposed against the accused, as modified by the learned Sessions Judge in appeal, is imprisonment till the rising of the court with direction to pay compensation of `.22,000/- with default term of simple imprisonment for two months. Feeling aggrieved, the accused has filed this revision. 2. Notice given, the 1st respondent/complainant has entered appearance. I heard the counsel on both sides. 3. The learned counsel for the petitioner/accused contended that the defence canvassed by the accused that the cheque had been issued as a security has not been properly appreciated by both the courts below and without positive evidence from the complainant, establishing due execution of the cheque, a conviction has been founded against him for the offence under Section 138 of the NI Act. That conviction suffers from serious infirmity as there is no convincing evidence proving the transaction in relation to the Crl. R.P No.2821 OF 2004 2 cheque with the complainant, is the further submission of the counsel. Reliance is also placed on Ext.D1 receipt produced by the accused to contend whatever liability that he had over the transaction with the complainant was discharged by payment. Evidentiary value of Ext.D1 receipt produced by the accused was not properly taken note of by both the courts and on mere surmises conviction has been founded against him, is the challenge raised. 4. Going through the judgments rendered by the magistrate and also the sessions Judge in appeal, I do not find any merit in any of the challenges canvassed by the counsel to assail the conviction of the accused. Cheque, according to the accused, was issued as a security in blank form with signature alone in relation to a transaction, which, admittedly, he had with the complainant. But, on dishonour of the cheque on presentation, when a statutory notice was issued, after acknowledgment it was not even responded by a reply by the accused. The defence taken belatedly in trial that the cheque was issued as a security necessarily has to be appreciated in the back drop that there was no reply when a notice was issued on dishonour of the instrument. Further more, the accused who had contended that the cheque was issued in blank form with signature alone did not take any steps to show that the entries filled up in Crl. R.P No.2821 OF 2004 3 such instrument were by a different hand. Going through the materials produced in the case, it is also seen that after setting up a plea that the cheque was issued as a security, a further defence was canvassed that whatever liability he had in respect of the transaction with the complainant, was discharged by payment. Ext.D1 receipt was also produced to show that there was such discharge. The liability under the transaction continued much later to Ext.D1 receipt, which was of the year 1990, is borne out by the materials tendered in the case. Complainant, to substantiate his case, has produced Ext.P6 agreement containing various endorsements as to the part payments made by the accused from time to time towards the outstanding liability due to him, which was fixed after intervention of third parties as mediators. When Ext.P6 agreement was produced and accepted in evidence, it is seen the only challenge made by the accused to dispute its validity was that blank stamp papers obtained by him had made use of for preparing such an agreement. He did not challenge his signatures subscribed on various endorsements covered under Ext.P6 agreement as not having been put by him. The aforesaid circumstances clearly spell out that false pleas had been raised by the accused to wriggle out from the penal consequences arising from the dishonour of the Crl. R.P No.2821 OF 2004 4 cheque issued to the complainant in respect of a transaction which he had with him. The magistrate who recorded the evidence of the complainant found his testimony reliable, convincing and trustworthy. The learned sessions Judge, after reappreciating the evidence, has affirmed the conclusion so formed by the magistrate, to sustain the conviction imposed against the accused. I do not find any infirmity in the concurrent finding of guilt entered against the accused by the two courts below to found his conviction under Section 138 of the NI Act. 5. Affirming the conviction and sentence, petitioner is directed to appear before the magistrate on 02-12-2011 to serve out the imprisonment till the rising of the court, and to report the payment of compensation. The magistrate is directed to keep in abeyance the execution of sentence till the date fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and nonpayment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge