IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 Crl.Rev.Pet.No. 1146 of 2011() ------------------------------ CRA.255/2010 of ADDL.SESSIONS COURT, (ADHOC I), ERNAKULAM CC.121/2008 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- GOPALAKRISHNA PILLAI, 58 YEARS, VAZHAPPANEL HOUSE, MEENACHAL P.O., PALA, KOTTAYAM DISTRICT. BY ADVS. SRI.SOORAJ T.ELENJICKAL, SRI.K.NIRMALAN. RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE: -------------------------------------------------------------------------------------- 1. SAJEEV ISSAC, NEDUMPILLIL HOUSE, NELLIMATTOM P.O., KOTHAMANGALAM - 686 691. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1146 OF 2011 ----------------------------------------- Dated this the 10th day of August 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 the plea of not guilty canvassed by the accused, the trial Magistrate, on his conviction, sentenced him to undergo imprisonment for one day, till the rising of the court, and to pay a fine of `1,95,000/- with default term of imprisonment for four months. The learned Sessions Judge, affirming the conviction and sentence turned down his appeal. Feeling aggrieved, the accused has preferred this revision. 2. I heard the learned counsel for the revision petitioner/accused. There was total misappreciation of the evidence in as much as the defence canvassed by the accused that he had no transaction with the complainant company, disputing the execution of the cheque and passing of consideration thereunder, was not looked into and considered by the court below though such defence was supported by the sworn testimony of the accused examined as DW1, is the submission of the counsel. Complainant examined as PW1 has deposed that he had Crl.R.P No.1146 OF 2011 - 2 - conducted sale of 20 - 25 vehicles to the accused, but, he could not remember the transaction in respect of which vehicle the cheque involved in the case was issued, submits the counsel. According to the counsel, one among the four cheques collected by a hire purchase company in blank form towards security from the accused over a transaction relating to the purchase of a lorry from that company, was misused by the complainant in collusion with the hire purchase company. Conviction of the accused, in the aforesaid circumstance, concurrently, by both the courts below without appreciating the defence pleaded in the facts and circumstances of the case, is unsustainable and it is liable to be interfered with, is the further submission of the counsel. 3. Going through the judgments rendered by the trial Magistrate and also that of the learned Sessions Judge, I find no merit in the submissions made by the counsel. The learned Magistrate, who had the opportunity to examine and record the testimonies of PW1/complainant and DW1/accused, found the testimony of the former reliable, convincing and trustworthy and that of the latter, the accused, unworthy of any merit. It is also seen that a statutory notice was issued on dishonour of the cheque, which after receipt remained unresponded even with a reply. The belated defence canvassed by the accused disputing the transaction with the complainant, necessarily, has to be appreciated in the background that the accused has not cared to send a Crl.R.P No.1146 OF 2011 - 3 - reply even after acknowledging the statutory notice. Other than the evidence of the complainant examined as PW1, nothing more has been brought on record to substantiate the case pleaded to prove the transaction with the accused, which was disputed contending that the cheque was issued in blank form to another. There is no rule that when the execution of a cheque is denied by the drawer, the testimony of the complainant cannot be accepted and acted upon even if it is found reliable and evidencing. Corroboration after all is a rule of prudence and not of evidence. The learned Magistrate, having found merit in the sworn testimony of the complainant accepted his case, which on reappraisal of the evidence found approval with the learned Sessions Judge as well. Having regard to the limitations in exercise of revisional jurisdiction, where a finding on fact entered by the inferior court is not liable to be interfered with unless it is shown to be perverse, I find no merit in the challenges now raised to assail the conviction. 4. So far as the sentence imposed, it is seen, both the courts have shown sufficient leniency in imposing punishment against the accused. At this stage, the learned counsel for the accused pleaded for further period of six months time to pay the cheque amount and, thus, avoid the default term of imprisonment provided for nonpayment of the fine. Cheque in the case is seen dated 22-12-2005. When that be the case, there is no merit in the plea made for further extension of time. Crl.R.P No.1146 OF 2011 - 4 - However, taking into account the submissions made by the counsel, the Magistrate concerned is directed to keep in abeyance the execution of sentence against the petitioner for a period of six weeks from today to enable him to pay the fine. 5. Petitioner is directed to appear before the Magistrate on 10-10-2011 to serve out the substantive term of imprisonment for one day, till the rising of the court, and to report payment of the fine. In default of his appearance and nonpayment of the fine, 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