IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 Crl.Rev.Pet.No. 130 of 2005(A) ------------------------------------------ [CRL.A.NO.382/1997 OF II ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM, CC.NO.18/1995 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-III, NEYYATTINKARA] .................... PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------- DHARMARAJ, S/O. NALLATHAMPY MULLUVILA VEEDU, THRIPPARAPPU, VILAVANCODE TALUK, KANNYAKUMARY DISTRICT. BY ADV. SRI.R.T.PRADEEP. RESPONDENTS/STATE & RESPONDENT/COMPLAINANT: --------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROCUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SANTHOSH S/O. NARAYANA PANICKER, SARADA VILASAM BUNGLOW, NEDUTHANNIMOODU, VELLARADA VILLAGE, NEYYATTINKARA TALUK. R1 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR, R2 BY ADV. SRI.SUMAN CHAKRAVARTHY. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/09/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. N.K.BALAKRISHNAN, J. -------------------------------- Crl.R.P. No.130 of 2005 --------------------------------- Dated this the 27th day of September 2011 O R D E R The accused is in revision. He was convicted by the learned Magistrate for offence punishable under Sec.138 of N.I.Act and he was sentenced to undergo S.I. for six months and to pay Rs.1,00,000/- as fine. In the appeal, the conviction was confirmed but the sentence was modified and reduced to imprisonment till the rising of the court and to pay Rs.75,000/- as compensation and in default to undergo S.I. for three months. 2. The learned counsel for the revision petitioner mainly argued that two cheques Ext.P1 series would show the amount in figures as Rs.25,000/- each whereas in words it was written as Rs.35,000/- each and if that be so, the offence under Sec.138 of N.I.Act will not be attracted, as the complainant says that the amount due is Rs.25,000/- Crl.R.P. No.130 of 2005 -: 2 :- each. In support of that submission the learned counsel would rely upon Sec.18 of the Act. There is no dispute regarding the fact that if the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid. 3. The learned counsel for the petitioner would submit that it was not stated in the complaint as to when the cheque was issued nor was it stated that it was a post dated cheque. When he was examined it was stated that two post dated cheques were issued by the accused on 27.2.1994, showing the date of the cheques as 31.3.1994. The fact that it was on 27.2.1994 those cheques were issued was elicited in cross examination. The fact that the date of issuance of the cheques was not mentioned in the complaint has been projected by the learned counsel for the petitioner to support his submission that the evidence given by PW1 on that point when examined in court cannot be accepted. Crl.R.P. No.130 of 2005 -: 3 :- Such a meticulous pleading cannot be excepted of, especially when the evidence shows that the complainant is not such a literate person. Had he been so literate to read what was written in words on the cheques, he would not have received the cheques showing therein the amounts payable in words and figures written differently by the accused. The evidence that the cheques were filled up by the accused was accepted by the two courts below. That concurrent finding cannot be upset by this Court sitting in revision. It was also argued by the learned counsel for the petitioner that in the complaint it was not stated why instead of Rs.35,000/- it was written in words as Rs.25,000/-. It appears that the complainant did not notice the fact that in words it was written as Rs.35,000/- instead of Rs.25,000/- especially because he was not literate enough to read and understand the same. That illiteracy cannot be taken advantage of by the accused. The petitioner wants to bank upon his own wrong to wriggle out of the liability. The Crl.R.P. No.130 of 2005 -: 4 :- courts below were not persuaded to accept the case advanced by the accused. As PW1 is an illiterate person it was not possible for him to know what was written in the cheque, in words. Had the intention been otherwise, he could have certainly contended that the total amount due from the accused was Rs.70,000/-; that means Rs.35,000/- each, covered by the two cheques. The courts below accepted the evidence given by PW1 on that aspect and found that Ext.P1 series were executed by the accused in discharge of the debt/liability due to him. The fact that stop memo was issued subsequently will not absolve his liability. All the statutory ingredients are seen satisfied. The conviction has to be thus confirmed. The learned Sessions Judge sentenced the accused to undergo imprisonment till the rising of the court and to pay Rs.75,000/- as compensation. The learned counsel for the accused/revision petitioner submits that the amount directed to be awarded is excessive. Since 17 years have elapsed from the date of Crl.R.P. No.130 of 2005 -: 5 :- the cheque, no interference is called for with regard to the sentence as well. In the result, this Crl.R.P. is dismissed confirming the conviction and sentence as stated above. The accused/revision petitioner will appear before the learned Magistrate on 16.11.2011 to undergo imprisonment till the rising of the court and to pay the sum of Rs.75,000/- as ordered by the learned Sessions Judge. It is needless to say that if the accused has deposited any amount towards the same, only the balance amount need be deposited/paid by him. N.K.BALAKRISHNAN, JUDGE. Jvt