IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 Crl.Rev.Pet.No. 1564 of 2011() ------------------------------------ CRA.6/2010 of ADDL.SESSIONS COURT, KOTTAYAM ST.99/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT- III, KANJIRAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------ SHERLY THOMAS, CHIRACKAL HOUSE, KARINILAM P.O., MUNDAKAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S):RESPONDENTS/COMPLAINANT & STATE ------------------------------------------------------------------- 1. THE KOTTAYAM DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY THE BRANCH MANAGER, MUNDAKAYAM EVENING BRANCH, K.P.THOMAS, S/O.PHILIP, KUREEKATTU CHITTADI P.O., MUNDAKAYAM, KOTTAYAM. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.T.A.SHAJI R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1564 OF 2011 -------------------------------- Dated this the 24th day of July 2011 ORDER Revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently, by the two inferior courts. Negativing his plea of not guilty, on his conviction, the learned Magistrate sentenced him to undergo simple imprisonment for six months and to pay compensation of Rs.49,500/- with default term of imprisonment for three months. In appeal, the learned Sessions Judge, after reappraisal of the evidence, affirmed the conviction, but, modified the sentence limiting the substantive term of imprisonment to one day, till the rising of the court, retaining the compensation awarded with the default term fixed. Feeling aggrieved, the accused has preferred this revision. 2. The learned counsel for the petitioner/accused assailed the finding of guilt entered against the accused, concurrently, by the two courts contending that the entries in Ext.P14, the extract of loan ledger, would belie the case advanced by the complainant that the cheque was executed and handed over in the manner alleged, in the complaint, which was also sought to be established in evidence. The entries in Ext.P14 would indicate, according to the counsel, that the Crl.R.P No.1564/2011 - 2 - amount on the date of issue of the cheque was much less than what was due as liability under the loan transaction towards the complainant, a co-operative society. Both the courts below have failed to examine the entries in Ext.P14 ledger extract, to consider the merit of the case of the complainant despite the challenge raised by the accused disputing even the execution of the cheque contending that the instrument in blank form with signature alone was handed over when an adalath was conducted by the complainant Society. 3. Per contra, the learned counsel for the complainant Society would submit that the challenge now canvassed in revision was not set forth to impeach the case of the complainant before both the courts below and, further, within the limited scope of revisional jurisdiction such a challenge to assail the finding of guilt concurrently entered is not available to the accused. Conviction of the accused is based on unimpeachable legal evidence, is the further submission of the learned counsel. 4. Perusing the judgments rendered by the learned Magistrate and also the learned Sessions Judge, and also looking into Ext.P14 ledger extract, certified copy of which was handed over to me for perusal by the learned counsel for the accused, I find no merit in the challenge pressed into service to impeach and Crl.R.P No.1564/2011 - 3 - assail the conviction rendered against the accused. Scope of revision is much limited and circumscribed; any challenge in revision could be only with respect to the legality, propriety and correctness of the finding or order or regularity of the proceedings of the inferior court. Challenge so raised, must satisfactorily show that the decision of the inferior court suffers from grave infirmity, and then, require the exercise of supervisory jurisdiction, to advance the ends of justice. A finding of fact concurrently entered, whatever challenge there be, normally is not assailable in revision, without showing that disputed fact had been addressed before the court below and attention of such court invited thereto. It is seen that whatever be the defence set up by the accused in trial, complaint was filed after issuing him a statutory notice on dishonour of the cheque. After acknowledgment of such notice, it was not responded with payment or reply. The belated plea canvassed in trial, denying the execution of the cheque, has been found to be meritless by both the courts. Challenge against the finding of guilt banking upon an entry in the ledger extract of the complainant Society, that alone, showing that the liability due to the bank at the point of time the cheque was stated to have been issued was much less, if at all available, should have been canvassed for at least Crl.R.P No.1564/2011 - 4 - during the trial of the case. Whatever that be, after perusing Ext.P14 ledger extract, I find that even in 2006 the account was suspended, recording the amount due. That amount alone, with interest, has been claimed by the complainant society on the basis of the cheque. True, there is a subsequent entry stating the outstanding liability with a date in 2009. On that entry alone, it cannot be concluded that the amount claimed in the cheque was much less on the date when it was issued. I do not find any merit int that line of attack canvassed by the counsel to assail the conviction. As no other point has been canvassed for, and, further the judgments rendered by both the courts unmistakably disclose that both courts were satisfied with the legal evidence tendered to enter a finding of guilt against the accused, over which I find no legal infirmity at all, conviction of the accused is unassailable. 5. So far as the sentence imposed also, sufficient leniency has been extended to the accused by the modification of the substantive term of imprisonment by the learned Sessions Judge and that also does not warrants any further modification. 6. At this stage, the learned counsel for the petitioner/accused requested for some more time to pay the balance amount due on the compensation awarded, submitting Crl.R.P No.1564/2011 - 5 - that substantial portion of the amount has already been paid during the pendency of the case before the lower appellate court and also by the conditional order passed by this court for suspending the sentence. Cheque involved in the case is dated 22-01-2008. Having regard to the fact that a sum of `.25,000/- has been paid out of the compensation awarded, I find, the request of the counsel for some more time to pay the balance amount can be considered. 7. Affirming the conviction and sentence of the accused, he is directed to appear before the learned Magistrate on 10-10-2011 to serve out the substantive term of imprisonment for a day, till the rising of the court, and to report the payment of compensation, whatever amount outstanding. Till the date fixed as above for his appearance, the learned Magistrate is directed to keep in abeyance the execution of sentence to enable him to pay the balance amount due on the compensation within such time. In default of his appearance and nonpayment of the compensation, the learned 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