IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 27TH AUGUST 2010 / 5TH BHADRA 1932 Crl.Rev.Pet.No. 1047 of 2010() ------------------------------ CRA.116/2008 of SESSIONS COURT, KALPETTA STC.409/2006 of JUDICIAL MAGISTRATE OF FIRST CLASS - I, KALPETTA. .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- P.A.YOOSUF, S/O.ALI, PALIYATH HOUSE, SULTHAN BATHERY POST, WAYANAD DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): / RESPONDENT /COMPLAINANT & STATE: ----------------------------------- 1. KHADEEJA, AGED 46 YEARS, D/O.UNNIMOYIN, KALATHINGAL HOUSE, MUTTIL POST, VYTHIRI TALUK, WAYANAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.BENNY VARGHESE THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------ Crl.R.P.No.1047 OF 2010 -------------------------------------- Dated this the 27th day of August, 2010 ORDER The Judicial Magistrate of the First Class, Kalpetta in S.T.No.409/2006, convicted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act and sentenced to simple imprisonment for three months. He was further ordered to pay Rs.2,00,000/- as compensation to the 1st respondent, who prosecuted the revision petitioner. In Crl.Appeal No.116/2008, the conviction and sentence were confirmed. Now, this revision petition. 2. When the revision petition came up for admission before another Judge, the learned Judge ordered to call for the records. Accordingly, the records were called for. Having heard the learned counsel for the revision petitioner, I find that the 1st respondent, who was examined as PW1 had succeeded to establish that the revision petitioner owed a sum of Rs.2,00,000/- to the 1st respondent and in discharge of that liability Ext.P1 cheque dated 23.8.2004 drawn on Catholic Syrian Bank, Sulthan Bathery branch was issued and that when Ext.P1 was presented for collection, the same was Crl.R.P. No.1047 OF 2010 : 2 : returned dishonoured for insufficient funds. The 1st respondent had sent Ext.P3 lawyer notice to the revision petitioner, which was returned unclaimed. Going by Ext.P5 returned notice, it is seen that the notice was duly addressed and sufficiently stamped. The intimation of the notice was seen communicated by the mail deliver to the revision petitioner on 16.9.2004. But he didn't care to accept it. Therefore it was returned. There is no case for the revision petitioner that the address shown in Ext.P5 is not that of the revision petitioner or that the notice was returned at the instance of the 1st respondent. So, it has to be presumed that the notice was returned as refused by the revision petitioner knowing its contents and there is constructive notice. Despite that the liability was not discharged. Though PW1 was subjected to aggressive cross examination, no material was disclosed to disbelieve her. During the course of cross examination, she had stated that as requested by the brother- in-law of the revision petitioner, she had advanced the amount to the revision petitioner. The brother-in-law of the revision petitioner was examined on defence side. He had not Crl.R.P. No.1047 OF 2010 : 3 : supported the evidence adduced by PW1. But it remains a fact that the revision petitioner could not account as to how the 1st respondent got possession of Ext.P1 cheque. He had vaguely stated that a blank cheque was obtained by the husband of the 1st respondent and somehow or other it was manipulated and prosecution was launched. Except this suggestion, there is no supporting evidence to establish the defence. The cross examination of PW1 would reveal that the 1st respondent as well as her husband were employed abroad and she has got sufficient means to advance the amount. The evidence of DW1 is not a reason to disbelieve the evidence of PW1. 3. The learned counsel for the revision petitioner relying upon Ext.P6 passport argued that the entries in Ext.P6 would not support the evidence of PW1 regarding her journey abroad as spoken by PW1. Going by Ext.P6, it is seen that the same expired in 2003, ie; long before the transaction in this case. It appears that it was renewed. But the renewed passport was not produced. Non production of current passport was much commented by the learned counsel. According to the learned counsel, the passport was produced Crl.R.P. No.1047 OF 2010 : 4 : in pursuance to the undertaking given by PW1 during the course of cross examination and the old passport was produced to suppress the truth. However, there is no request by the revision petitioner to produce the renewed passport. Ext.P6 was voluntarily produced by the 1st respondent. There is no material on record to show that the production of passport would anyway benefit to the revision petitioner. It is pertinent to note that the passport of the 1st respondent is not at all relevant since the revision petitioner has no case that the 1st respondent was abroad as on the date of transaction. All questions in cross examination relating to her journey abroad are on experimental basis and irrelevant. So the non production of the current passport or the production of the old passport is not a reason to disbelieve PW1. Going the evidence on record I find that, the courts below had considered the evidence in the correct perspective and arrived at correct finding on fact regarding the existence of the liability as well as the issuance of the cheque. The evidence of PW1 is supported by presumptions under Section 118 and 139 of the Negotiable Instruments Act that Ext.P1 was drawn for Crl.R.P. No.1047 OF 2010 : 5 : valuable consideration and issued in discharge of the liability. The revision petitioner is searching for some defence or otherwise. He has not succeeded to impeach the evidence of PW1 as to rebut the legal presumptions in favour of the 1st respondent. In the above circumstance, I find that the conviction is based upon cogent evidence and requires no interference. 4. Taking note that the prosecution arose out of an ordinary money transaction, I find that the revision petitioner is entitled to a little leniency and a sentence of imprisonment till the rising of the court with a fine of Rs.2,05,000/- (Rupees Two Lakhs and Five Thousand only) would meet the ends of justice. 5. In the result, this revision petition is allowed in part. While confirming the conviction, the sentence, is reduced to imprisonment till the rising of the court and a fine of Rs.2,05,000/- (Rupees Two Lakhs and Five Thousand only). In default of payment of fine, the revision petitioner shall undergo simple imprisonment for five months. Out of the fine amount, if realised, Rs.2,00,000/- (Rupees Two Lakhs only) Crl.R.P. No.1047 OF 2010 : 6 : shall be paid to the 1st respondent as compensation under Section 357(1) of the Code of Criminal Procedure. The revision petitioner is granted two months time to remit the fine amount. P.S.GOPINATHAN, JUDGE dmb