IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH FEBRUARY 2011 / 5TH PHALGUNA 1932 Crl.Rev.Pet.No. 539 of 2011(B) ------------------------------------------ [CRL.A.NO.875/2008 OF SESSIONS COURT, THRISSUR, ST.NO.3408/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR] .................... REVISION PETITIONER/APPELLANT/ACCUSED: ------------------------------------------------------------------- PRAKASAN.N.V., S/O.NADUVILPURAKKAL VASU, PADOOR P.O., MULLASSERY, THIRSSUR DISTRICT. BY ADV. SRI.K.A.SATHEESA BABU. RESPONDENT/COMPLAINANT: --------------------------------------------- 1. M/S.MANAPPURAM GENERAL FINANCE AND LEASING LTD., MANAPPURAM HOUSE, VALAPAD P.O., THRISSUR DISTRICT, REPRESENTED BY JUNIOR ASSISTANT A.V.UNNIKRISHNAN, PIN – 680 001. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. R2 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/02/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.539 OF 2011 --------------------------------------------------- Dated this the 24th day of February, 2011. ORDER The challenge in this Crl.R.P. is against the conviction and sentence imposed on the revision petitioner who is the accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act. 2. The contention of the learned counsel for the revision petitioner is that PW1 has admitted regarding the payment of 8 instalments and also the receipt of certain other amount. It is also the contention of the learned counsel that the vehicle was subsequently repossessed by the complainant and the same was sold for an amount of Rs.60,000/-. Thus according to him, no liabilities due to the complainant. According to the learned counsel the above vital aspect was not properly considered by the trial court as well as the appellate court. The another point raised by the learned counsel is that who was PW1 examined on behalf of the complainant has no direct knowledge with the transaction and therefore, according to the learned counsel complainant miserably failed to establish the case. It is also the submission of the learned counsel that no document was Crl.R.P.NO.539 OF 2011 2 produced in support of the case of the complainant. 3. I am unable to sustain the above contention. The trial court as well as the appellate court has found that the revision petitioner had admitted the availing of loan from the complainant and there was default from the part of the revision petitioner in paying the loan amount in terms of the agreement connected with the higher purchase agreement. According to PW1, as observed by the trial court the revision petitioner has to pay the amount in 36 instalments but he had paid only 8 instalments. According to the findings of the courts below PW1 has also admitted that due to the failure on the part of the revision petitioner in paying the instalments particularly after the payment of 8 instalments, the vehicle was repossessed and sold for Rs.60,000/-. It is also on evidence as observed by the trial court as well as the appellate court as per the evidence which referred to by the learned trial Magistrate, PW1 has deposed that the accused along with his wife approached the company and for a loan and loan was availed as per agreement dated 31-05-2004. According to PW1 as on 20-04-2005 the accused had to pay a sum of Rs.38,341/- to the company and towards the discharge of the said liability the accused issued Crl.R.P.NO.539 OF 2011 3 Ext.P1 cheque Rs.38,341/- and the said cheque was dishonoured when present for encashment. Though PW1 was deposed the reason for issuance of Ext.P2 cheque and the liability due to the company etc., there is no effective cross examination on those aspects and courts below accepted the evidence of PW1. So according to me the trial court as well as the appellate court right in holding that Ext.P2 cheque was issued towards the discharge of the liability due to the complainant connected with the higher purchase agreement entered into by the revision petitioner with the complainant company. When the transaction regarding the higher purchase agreement is admitted, unless sufficient materials, either by way of defence evidence, or the evidence, that may be helpful to the defence, which elicited from the evidence of PW1, it cannot be said that the accused has succeeded in rebutting the presumption. Thus, according to me, there is no reason to interfere with the concurrent findings entered into by the courts below. Therefore, the conviction recorded by the courts below requires no interference. 4. Regarding the sentence it is to be noted that though the trial court after recording the conviction, sentenced the revision petitioner to undergo simple imprisonment for a period of three Crl.R.P.NO.539 OF 2011 4 months and to pay compensation of Rs.39,000/-, the appellate court while confirming the conviction reduced substantial sentence to one day simple imprisonment and the direction to pay compensation approved. 5. Therefore, I find no reason to interfere with the sentence also. In the result, this revision petition is devoid of any merit and accordingly, dismissed. V.K.MOHANAN, JUDGE pm