IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933 Crl.Rev.Pet.No. 1861 of 2011() ---------------------------- CRA.115/2004 of ADDL. SESSIONS COURT (FAST TRACK COURT NO. III), PALAKKAD CC.508/2001 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR .................... REVISION PETITIONER / APPELLANT / ACCUSED: ----------------------------------------------------------------------- T.B.BABU, S/O.BAVA, THIRUNILATH HOUSE, HOUSE NO.69/ST, KORATTY P.O., THRISSUR. BY ADV. SRI.SOJAN MICHEAL RESPONDENTS / RESPONDENTS / STATE & COMPLAINANT: -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.S.SASIDHARAN, S/O.SANKARAN, CHENANGAD HOUSE, KOTTAI, ALATHUR. R1 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN R2 BY ADV. SRI.P.K.MOHANAN (PALAKKAD) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P. No.1861 OF 2011 ----------------------------------------- Dated this the 4th day of August 2011 ORDER The 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, on his conviction, the trial Magistrate sentenced him to undergo simple imprisonment for one year and to pay compensation of `1,27,000/- with default term of simple imprisonment for six months. In appeal, confirming the conviction, the learned Sessions Judge modified the substantive term of imprisonment, reducing it to imprisonment for one day, till the rising of the court, retaining the compensation awarded, but, limiting the default term of imprisonment to one month. Feeling aggrieved, the revision petitioner/accused has filed this revision. 2. The learned counsel for the revision petitioner/accused, assailing the conviction, concurrently rendered by the two courts below submitted that the defence canvassed that the cheque had been collected in blank form as contended by the accused had been established by documentary materials produced in the case. Adverting to Ext.P2, which according to the counsel contained the Crl.R.P. No.1861 OF 2011 2 endorsement as to collection of a cheque in blank form, the learned counsel submitted that when on appreciation of evidence, the courts have found that the version of the complainant, disputing the endorsement in Ext.D2, was found untenable and unacceptable, the defence version ought to have been accepted as true and correct. The claim over the cheque raised by the complainant that it was collected in discharge of a debt or liability arising out of a loan availed by the accused, it is submitted, is not supported by any independent evidence other than the interested version of the complainant examined as PW1. Both courts have misappreciated the facts, circumstances and evidence in the case and it has resulted in forming wrong conclusion, and as such, the finding of guilt entered and the conviction rendered against the accused is unsustainable, is the further submission of the counsel. 3. Going through the judgments of the learned Magistrate and also that of the learned Sessions Judge, I am not persuaded to accept the challenges raised by the counsel against the finding of guilt entered against the accused by the two courts below. Complainant was examined as PW1. His evidence was found to be credible, trustworthy and convincing to the learned Magistrate, who had the opportunity to watch his demeanour and deportment while recording his testimony. He was subjected to searching cross Crl.R.P. No.1861 OF 2011 3 examination but his testimony remained unshaken. The learned Sessions Judge, after reappraisal of the evidence, has uphold the conclusion formed by the learned Magistrate upholding the case of the complainant. Now, the challenge raised on the basis of Ext.D2, a letter, which was issued by the complainant to the accused, to contend that the cheque had been issued in blank form. The present case involves two cheques. Ext.D2, the contents of which has been read over to me by the counsel, prima facie indicates that there was a direction from the complainant to send a cheque through the bearer with whom he was returning another cheque. No doubt, there is a statement to the effect that the cheque to be handed over should be undated. That does not indicate that the name of the payee should not be stated in the cheque, which is to be transmitted through the bearer. If the name of the payee is written on the instrument, for its presentation, the payee is competent to put the date to make the instrument complete. When such be the case, the plea set up by the accused, on the basis of Ext.D2, at the most, would only indicate that the cheque to be handed over through the bearer was to be undated. That will not assist the accused in substantiating his defence that a blank cheque had been obtained by him from the complainant. Further more, the accused had the opportunity of cross examining the complainant, when he was Crl.R.P. No.1861 OF 2011 4 examined as PW1, to challenge the case presented by him for prosecuting him on the basis of the cheque, which, admittedly, arose from his account, on its dishonour on presentation before the bank. Despite setting up a plea that the cheque had been issued in blank, the accused has not mounted the box and provided an opportunity to the complainant to challenge his defence. In exercise of revisional jurisdiction, no finding on fact made by the inferior court, is liable to be interfered with unless it is shown to be perverse or it could not have been legitimately formed on the materials on record or it is erroneous and illegal. No such infirmity has been brought to my notice with respect to the finding on fact entered against the petitioner. So much so, the challenge raised against the conviction is devoid of any merit. 4. So far as the sentence imposed against the revision petitioner/accused, I find, maximum leniency has been extended by the learned Sessions Judge in modifying and reducing the substantive term of imprisonment to one day, till the rising of the court, retaining the compensation with the default term. So much so, no interference with the sentence is called for. 5. The learned counsel for the petitioner sought for indulgence of this court to provide him some more time to pay the compensation and, thus, avoid the default term of imprisonment. Crl.R.P. No.1861 OF 2011 5 Cheques involved in the case, which gave raise to the prosecution of the accused and ultimately leading to his conviction, are dated 28-03-2001. When such be the case, normally no extension can be granted to the accused to pay the compensation awarded. However, taking note of the averments made by the counsel, there will be a direction to the Magistrate concerned to keep in abeyance the execution of sentence for a period of six weeks from today. Petitioner is directed to appear before the Magistrate on 26-09-2011 to serve out the substantive term of imprisonment for a day, till the rising of the court, and to report the payment of the compensation. 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