IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 Crl.Rev.Pet.No. 1536 of 2010() ------------------------------ CRA.46/2008 of ADDL. SESSIONS COURT, (ADHOC I ), PALAKKAD ST.3375/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------------- NASARUDDIN, S/O. BADARUDDIN, AGED 43 YEARS,KAMBRATHALLA, PAZHAYAPATHA, MUTHALAMADA, CHITTUR TALUK. BY ADVS. SRI.BINOY VASUDEVAN, SMT.P.G.BABITHA RESPONDENT(S): RESPONDENTS:STATE: --------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, PALAKKAD. 2. MURALEEDHARAN, S/O. KRISHNAN, POTHANPADAM HOUSE, MUTHALAMADA, CHITTUR, PALAKKAD DIST. R1 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA R2 BY ADV. SRI.A.ANILKUMAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1536 of 2010 ------------------------------- Dated this the 20th day of May, 2010. O R D E R The accused in a prosecution for the offence punishable u/s.138 of Negotiable Instruments Act is the revision petitioner who challenge his conviction and sentence imposed by the courts below, in this revision petition. 2. The case against the revision petitioner is that, he had borrowed a sum of Rs.30,000/- from the complainant and towards the discharge of the said liability he issued a cheque dated 20.7.2006, which when presented for encashment dishonoured and thereby committed the offence punishable u/s.138 of Negotiable Instruments Act. During the course of the trial, the complainant himself, who was examined as PW1, mounted to the box and gave evidence in support of the allegation of the complaint and produced Exts.P1 to P5. From the side of the defence, DW1 was examined and no documentary evidence adduced. On the basis of the available Crl. R.P.No.1536 of 2010 2 materials and evidence, the trial court found that the accused is guilty and accordingly he is convicted u/s.138 of Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of 3 months and also ordered to pay a compensation of Rs.35,000/- to the complainant u/s.357(3) of Cr.P.C. Though the above conviction and sentence and order of compensation challenged by the accused/revision petitioner, by preferring Crl.Appeal No.46/2008, by judgment dated 24.8.2009 of the Court of the Addl. Sessions Judge, Adhoc Court No.I, Palakkad, dismissed the appeal confirming the conviction and sentence and also the order of compensation. The present revision petition is filed against the above judgments. 3. The learned counsel for the revision petitioner submitted that, both the trial court as well as the lower appellate court failed to consider the evidence on record in its two perspectives and miserably failed to found that the cheque in question was allegedly issued for the discharge of legally Crl. R.P.No.1536 of 2010 3 enforceable debt. It is also the contention of the learned counsel that, the complainant has miserably failed to establish that, the revision petitioner was liable to pay any amount to the complainant. Thus according to the learned counsel, the finding arrived on by the courts below are required to be interfered with. 4. Going by the judgments of the trial court as well as the lower appellate court, it can be seen that the complainant/respondent by adducing oral as well as the documentary evidence, substantiated his case and especially producing the cheque in question signed by the revision petitioner, from the possession of the complainant. From the judgments of the courts below, it can be seen that the accused has no case that, he never executed and issued the cheque to the complainant and he is also not disputing the transaction claimed by the complainant. The only contention advanced by the accused to the effect that, he had availed a hand loan of Rs.10,000/- only from the complainant and the said amount was repaid to him. It is also the case of the accused that at the time Crl. R.P.No.1536 of 2010 4 of receiving the said amount he had issued a cheque as a security for the said transaction and the cheque which entrusted with the complainant as a security, was not returned to the accused even though the amount was paid off. The trial court found that, though the accused has advanced such a contention, the same was not substantiated and not even probabilised the defence version. According to me, when the transaction is admitted and also when the execution and issuance of the cheque admitted, it is heavily upon the accused to convince the courts by adducing acceptable and cogent evidence, to show that he had received only Rs.10,000/- from the complainant and the same is repaid. On consideration of the case of the defence, the same need not be proved beyond reasonable doubt, as in the case of the complainant. But mere denial of the transaction is not sufficient. It is the duty of the accused to establish the defence version atleast probabilising the story put forward by him. In the present case, the accused miserably failed to discharge the burden of rebutting the Crl. R.P.No.1536 of 2010 5 presumptions which available to the complainant. In the light of the above facts and circumstances, I am of the opinion that there is no merit in the revision petition. 5. The learned counsel for the revision petitioner submitted that, some breathing time may be granted to receive the sentence and to make the payment. According to me, the said prayer can be considered in favour of the revision petitioner. But it is to be noted that the cheque in question pertain to the year 2006. The compensation amount fixed by the trial court is only Rs.35,000/-, whereas the cheque amount is Rs.30,000/-. Therefore, while granting time to the revision petitioner to make the payment of compensation, the amount can be enhanced considering the above facts also. In the result, this revision petition is disposed of confirming the conviction recorded by the trial court as well as the lower appellate court against the revision petition u/s.138 of the Negotiable Instruments Act. The sentence of imprisonment awarded by the lower appellate court that, till the raising of the Crl. R.P.No.1536 of 2010 6 court, against the simple imprisonment of 3 months imposed by the trial court, is confirmed, whereas compensation fixed by the trial court as well as lower appellate court is enhanced to the tune of Rs.40,000/- u/s.357(3) of Cr.P.C., failing which the revision petitioner is directed to undergo simple imprisonment for a period of 3 months. Accordingly, the revision petitioner is directed to appear before the trial court on 20.8.2010 to receive the sentence and to make the payment of compensation as fixed above. If there is any failure on the part of the revision petitioner, in appearing before the trial court and making the payment, the trial court is free to take coercive steps for procuring the presence of the revision petitioner and to execute the sentence and to realise the compensation amount. V.K.MOHANAN, Judge. ami/