IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 3RD FEBRUARY, 2010 / 14TH MAGHA, 1931 Crl.Rev.Pet.No. 395 of 2010 -------------------------------------- (CRA.162/2008 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA ST.47/2008 of JUDL. MAGI. OF FIRST CLASS-I (FOREST OFFENCES), THODUPUZHA) .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- C.K.AZIZ, S/O. KARIM, AGED 35 YEARS, CHUDUKATTIL HOUSE, ELAMDESOM P.O., THODUPUZHA. BY ADV. SRI.PEEYUS A.KOTTAM. RESPONDENT(S): RESPONDENT/COMPLAINANT AND STATE: --------------------------------------------------------------------------------------- 1. SHAJI V.M., AGED 45 YEARS, VELIYATHU HOUSE, THODUPUZHA KARA AND VILLAGE, THODUPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, KOTHAMANGALAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. R2 BY PUBLIC PROSECUTOR SRI.C.S.HRITHIK. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 03/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 395 of 2010 --------------------------------------------- Dated this the 3rd day of February, 2010 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') is the revision petitioner herein who challenges his conviction and sentence and the direction for payment of compensation ordered by the courts below. 2. The first respondent is the complainant. The case of the complainant is that on 11.4.2007, the accused had borrowed a sum of Rs.50,000/- and towards the discharge of the said liability, the accused issued a cheque dated 22.6.2007 which, when presented for encashment, was dishonoured and thus, alleging the commission of offence under Section 138 of the N.I.Act, the complainant approached the trial court wherein S.T.No.47 of 2008 was instituted. During the course of trial, PW1 was examined from the side of the Crl.R.PNO.395 of 2010 :-2-: complainant and Exts.P1 to P6 were marked. From the side of the defence, DW1 was examined and Ext.D1 was marked. The trial court, after appreciating the evidence on record and examination of the case of the complainant, found that the revision petitioner/accused is guilty and accordingly, he is sentenced to undergo simple imprisonment for three months and to pay compensation of Rs.60,000/- to the complainant under Section 357(3) of the Cr.P.C. 3. Aggrieved by the above order of conviction, sentence and order for compensation, the revision petitioner/accused preferred an appeal as Crl.A.No.162 of 2008 before the Court of 3rd Additional District and Sessions Judge, Adhoc-I, Thodupuzha and by judgment dated 2.11.2009, the said appeal was disposed of allowing the appeal in part and confirming the conviction ordered by the court below. With respect to the sentence, certain modifications were made and reduced the same from three Crl.R.PNO.395 of 2010 :-3-: months to imprisonment till the rising of the court. The lower appellate court, while maintaining the direction issued by the trial court under Section 357(3) of the Cr.P.C., fixed the default sentence as one month simple imprisonment. The revision petitioner/accused was accordingly directed to appear before the trial court on 2.2.2010. Challenging the above conviction, sentence, the direction and the findings in the judgments of the courts below, the accused has preferred this Crl.R.P. 4. Heard the learned counsel appearing for the revision petitioner. After hearing learned counsel and on perusal of the impugned judgments, it can be seen that the accused has no dispute that he did not issue the cheque in question and the same contained his signature. The specific case set up by the accused is to the effect that he had borrowed only a sum of Rs.25,000/- from the complainant and he had issued Ext.P1 cheque in blank after putting his signature and the said cheque was given as a security for Crl.R.PNO.395 of 2010 :-4-: the said transaction. It is also the case of the accused that he had paid of the entire amount by regular instalments i.e, Rs.250/- per day. According to him, when he demanded for the return of the cheque after the payment, the complainant refused to give the same and asked him to discharge the debt which was due to the complainant from the brother of the accused viz., Jaffir. The trial court as well as the lower appellate court found that such plea was not substantiated. 5. It can be seen from the orders of the courts below that when PW1 was examined, he had adduced evidence in support of his case in the complaint and though PW1 was cross-examined extensively, nothing is elucidated from him to disbelieve his evidence. Though a contention was taken that no proper notice was served on the revision petitioner, the courts below found that such a plea was not sustainable. It is brought on record that the address shown in Ext.P6 notice is that of shown in Ext.D1 which is the ration card. It is further established that the revision petitioner/accused Crl.R.PNO.395 of 2010 :-5-: was not prepared to receive the notice and as evidenced by Exts.P5 and P6, the notice sent to him was returned as unclaimed. So I find no reason to disturb the finding of the courts below regarding the service of statutory notice on the revision petitioner/accused. Therefore, it is to be held that the complainant has established his case with adequate evidence and materials. If that be so, certainly, the statutory presumption as envisaged by Sections 118A and 139 of the N.I.Act are available in favour of the complainant. 6. Now let us see whether the revision petitioner/accused has succeeded in rebutting the above presumption. It is an admitted case of the revision petitioner that there was a transaction between himself and the complainant and his admitted case is that he borrowed only a sum of Rs.25,000/-, not a sum of Rs.50,000/- as alleged by the complainant and towards the discharge of the said liability of Rs.25,000/-, he had issued a blank cheque putting his signature and such cheque leaf was issued from Crl.R.PNO.395 of 2010 :-6-: the account maintained by him. If that be so, it is up to the accused to substantiate the said claim. But, no evidence was adduced to show that he had received or borrowed only Rs.25,000/-. The further case of the defence is that he had paid of the entire amount for which also there is no evidence. Therefore, the findings of the trial court as well as the lower appellate court require no further scrutiny. Therefore, no reason is made out to interfere with the order of conviction passed by the courts below and the revision petition is liable to be dismissed. 7. Learned counsel for the revision petitioner submitted that the revision petitioner is ready to pay the amount and some time may be granted enabling him to make the payment. 8. Having regard to the facts and circumstances of the case, I am of the view that such request can be considered favourably. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision Crl.R.PNO.395 of 2010 :-7-: petitioner under Section 138 of the N.I.Act and the sentence of imprisonment as fixed by the lower appellate court and also confirming the order of direction to pay compensation of Rs.60,000/- to the complainant under Section 357(3) of the Cr.P.C. Thus, accordingly, the revision petitioner is directed to appear before the trial court on 19.3.2010 to receive the sentence of imprisonment and to make the payment of compensation of Rs.60,000/- as directed. If there is any default on the part of the revision petitioner in appearing before the court below and making the payment as directed, the trial court is free to issue coercive steps for securing the presence of the revision petitioner and to execute the sentence and to realise the compensation amount. sd/- V.K.Mohanan, Judge MBS/ -true copy- P.A.TO JUDGE Crl.R.PNO.395 of 2010 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.P.NO. OF 200 ------------------------------------ -------- Crl.R.PNO.395 of 2010 :-9-: O R D E R DATED: -10-2009 Crl.R.PNO.395 of 2010 :-10-: