IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 Crl.Rev.Pet.No. 1350 of 2011() ------------------------------ CRA.147/2010 of ADDL.SESSIONS COURT, (ADHOC), ERNAKULAM CC.23/2009 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------ TITUS,S/O.K.J.MICHELE,KANAPPILLY HOUSE,MUPPATHADAM,ALUVA, KOCHI. BY ADV. SRI.P.A.MARTIN ROY RESPONDENT(S): COMPLAINANT & STATE -------------------------------------------------------------- 1. SIDHIQUEL AKBER,S/O.P.K.KIDAVU, PUTHIYA PANDAROM BLOCK NO.2,KALPENI DWEEP. 2. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SMT. REKHA C. NAYAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: smt V.K. MOHANAN, J. ----------------------------- Crl.R.P.No. 1350 OF 2011 ----------------------------------- Dated this the 13th June, 2011 O R D E R Aggrieved by the order of conviction and sentence imposed against the petitioner who faced prosecution under Sec.138 of the Negotiable Instruments Act, filed this revision petition. The case of the complainant is that the accused who is an acquaintant of the complainant borrowed Rs.50,000/- from the complainant and executed a promissory note on 19.10.2007 promising to repay the said amount. Though the accused did not repay the amount as promised on demand, the accused issued cheque dated 28.11.2007 for an amount of Rs.50,000/- drawn from Syndicate bank, Willingtone Island, Kochi, which the account maintained by the accused. On dishonour of the cheque, a notice was issued informing the accused regarding the dishonour of the cheque and for demanding payment of the amount. The notice was accepted by the accused and he failed to pay the amount even after getting information about the notice and committed offence punishable under section 138 of the Negotiable Instruments Act. With the above allegation, the Crl.R.P.No. 1350 OF 2011 2 complainant had preferred a complaint, before the Court of Judicial First Class Magistrate-I, Kochi-5, based on which cognizance was taken under sec.138 of Negotiable Instruments Act and instituted C.C. No. 23/2009. During the trial of the case, the complainant himself was examined as PW1and produced Exts. P1 to P5 documents. No evidence either documentary or oral produced from the side of the defence. Based upon the materials and facts of the case, the trial court came into conclusion that the cheque in question was issued in favour of the complainant by the accused towards discharge of the liability, which due to the complainant. Accordingly the learned Magistrate found that the accused is guilty of offences punishable under sec.138 of the Negotiable Instruments Act. On the said contention, the learned Magistrate sentenced the revision petitioner/accused to undergo simple imprisonment for a period of three months and to pay a fine of Rs.50,000/- in default he is to undergo simple imprisonment for a further period of three months. It is also ordered that the fine amount, if realised, shall be paid as compensation under sec.357(1) (b) of Cr.P.C. Crl.R.P.No. 1350 OF 2011 3 2. Challenging the above conviction and sentence, the accused preferred an appeal. The appeal was allowed only in part. Thus, while confirming the conviction, the sentence of imprisonment is reduced to one day simple imprisonment that is, till the rising of the court, but the fine amount fixed by the trial court is enhanced. In default to undergo simple imprisonment for one month. The fine amount if realised, will be paid to the complainant as compensation under sec.357(1) (b) of Cr.P.C. 3. It is the above judgment, order of conviction and sentence are challenged in this revision petition. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgment of the trial court as well as the appellate court. 5. The learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to establish the transaction and particularly failed to prove the passing of consideration connected to the cheque in question. In support of the above submission learned counsel invites my attention to the deposition of PW1 during his cross-examination. Crl.R.P.No. 1350 OF 2011 4 During the cross-examination of the PW1 he deposed that as directed by the accused the complainant had deposited Rs.20,000/- in the account of one Koyamma. Thus, according to the learned counsel, there is no transaction directly between the complainant and the accused and even according to the complainant the amount deposited in the account of Koyamma is only Rs.20,000/-. Thus, on the basis of the above materials, the learned counsel submitted that the complainant has miserably failed to establish the transactions including passing of consideration. Thus, according to the learned counsel, the trial court and the appellate court committed wrong in holding that the complainant has established the offence under sec.138 of the N.I.Act against the revision petitioner. 6. I am unable to accept the above contention. The specific case of the complainant is that the complainant as well as the accused are one previous acquaintance and out of that friendship, the accused requested a sum of Rs.50,000/- on 14.10.2007 and thus the complainant paid him a sum of Rs.50,000/- on 19.10.2007 and in receipt of that amount the Crl.R.P.No. 1350 OF 2011 5 accused executed Ext. P1 promissory note dated 19.10.2007. According to the complainant, it is thereafter towards the repayment of the amount the accused issued Ext.P2 cheque dated 28.11.2007. The other document produced by the complainant further established that the complainant has presented Ext. P2 cheque on 19.05.2008, which was dishonoured for want of sufficient funds in the account maintained by the accused. 7. The trial court as well as the appellate court, on the basis of the materials and evidence, came to the conclusion that on a perusal of Ext.P1 promissory note would show that the sum is borrowed and the same is executed by the accused in favour of the complainant, promising to repay the sum of Rs.50,000/- borrowing by the accused from the complainant on 19.10.2007. The trial court has also proved that the signature of the accused appeared in the Ext.P2 cheque acknowledged in the correction made therein. Thus, both the trial court as well as the appellate court is of the opinion that the complainant has established a prima facie case and there by he is entitled to get the Crl.R.P.No. 1350 OF 2011 6 presumptions under sec. 139 of the N.I. Act. 8. Regarding Ext.P1 promissory note and Ext.P2 cheque, there is no convincing explanation as to how the said documents duly executed by the accused and reached in the possession of the complainant. During the hearing, the learned counsel for the petitioner submitted that actually there was a transaction between one Justine and accused. Exts.P1 and P2 documents are the one which entrusted with the said Justine during availed the amount from him and according to the learned counsel, the said liability was already discharged. 9. It is true that during the cross-examination of PW1, he had deposed before the court as directed by the accused. He had deposited Rs.20,000/- in the account of one Koyamma simply because a statement during the cross-examination, that itself is not sufficient to demolish the case established by the complainant as per the documents which executed by the accused. The trial court has specifically found that Ext.P1 promissory note is executed and in the hand writing of the accused that too in the name of the PW1, the complainant. Crl.R.P.No. 1350 OF 2011 7 Nothing forthcoming from the accused as to why and how Ext.P1 pro-note was executed in favour of the complainant is? There is absolutely no transaction between the complainant and the accused. Ext.P2 cheque is also signed after correction by the accused that too in favour of the complainant. 10. In the light of the above, the contemporary documents like Exts.P1 pro note and P2 cheque which both are in favour of the complainant. I am of the view that the learned Magistrate has absolutely correct in holding that the statement of PW1, during the cross-examination that he had remitted Rs.20,000/- in the account of one Koyamma as instructed by the accused is not sufficient to get presumption under sec.139 of the N.I. Act. 11. Therefore, in the light of the above facts and circumstance and materials referred to above, I am of the view that the trial court as well as the appellate court is correctly found that the accused is issued Ext.P2 cheque towards the discharge of the liability due to the complainant and I found no reason to interfere such concurrent finding. Therefore, the conviction recorded by the trial as well as appellate court is only Crl.R.P.No. 1350 OF 2011 8 to be proved and I do so. Though the trial court was imposed 3 months of simple imprisonment, the appellate court reduces the same to till the rising of the court and also fixed fine amount as Rs.60,000/- and the default sentence is also modified and fixed as one month simple imprisonment. Though the cheque in question is dated 28.11.2007, no amount is seen paid till date in the above legal and factual background. In the result, the revision petition fails and accordingly the same is dismissed. The counsel for the petitioner submitted that a breathing time may be granted to pay the fine amount. Having regard to the facts and circumstances,one month time from to day is granted to the revision petitioner to pay the fine amount fixed by the appellate court and to receive the modified sentence of imprisonment fixed by the appellate court. Subject to the above extension of time, the revision petition is dismissed. V.K. MOHANAN, JUDGE smt