IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 16TH DECEMBER 2009 / 25TH AGRAHAYANA 1931 Crl.Rev.Pet.No.3944 of 2007 -------------------------------- CRA.385/2006 of SESSIONS COURT, ERNAKULAM CC.1611/2003 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER/APPELLANT BEFORE THE SC AND ACCUSED IN CC 1611/03 : ----------------------------------------------------- JOSHY SKARIA, AGED 40, S/O. P.Y.SKARIA, PARAKKAL HOUSE, KANJOOR P.O., ERNAKULAM DISTRICT. BY MR.VARGHESE C.KURIAKOSE, ADVOCATE. MR.PRAVEEN K. JOY, ADVOCATE. MR.E.M.MURUGAN, ADVOCATE. RESPONDENTS/R1 IN THE CRL.APPL. BEFORE THE SC AND COMPLAINANT : ---------------------------------------------------------------- 1. GEORGE JASHIL P.C., AGED 38 YEARS, S/O. P.C.KITER, PUTHIYAVEETTIL HOUSE, DOCTOR'S LANE, ALUVA. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY MR. JAYAKRISHNAN, PUBLIC PROSECUTOR. MR.M.A.JOSEPH MANAVALAN, ADVOCATE, FOR R1. MR.SOORAJ T.ELENJICKAL, ADVOCATE, FOR R1. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN,J. ========================== Crl.R.P.No.3944 of 2007 ========================== Dated this the 16th day of December, 2009 ORDER Judicial Magistrate of the First Class-I, Kochi in C.C.No.1611/2003 by judgment dated 19.04.2006, found the revision petitioner guilty for offence under Section 138 of the Negotiable Instruments Act. He was convicted and sentenced to simple imprisonment for three months and to pay Rs.2,00,000/- (Rupees two lakh only) as compensation to the first respondent who prosecuted the revision petitioner before the trial court. In Crl.Appeal No.385/2006, the first Addl. Sessions Judge, Ernakulam, by judgment dated 08.08.2007, confirmed the conviction and reduced the substantive sentence to imprisonment till rising of the court. The order to pay compensation with default sentence of simple imprisonment for three months was sustained. 2. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition was filed. 3. Having heard either side and perusing the records, I find that the first respondent who was examined as PW1 had succeeded to establish that the revision petitioner owed a sum of Crl.R.P.No.3944/2007 2 Rs.2,00,000/- (Rupees two lakh only) to the first respondent and in discharge of that liability Ext.P1 cheque dated 10.01.2003 for the said amount drawn on South Indian Bank LTD, Angamaly Branch was issued and that when presented for collection through the State Bank of Travancore, Perumanoor Branch Ext.P1 was returned bounced for insufficient fund. Though the first respondent issued a lawyer notice demanding discharge of liability and it was acknowledged by the revision petitioner as evidenced by Ext.P5, the liability was not discharged. 4. The revision petitioner took up defence of total denial. In fact no effective cross-examination was made on PW1 regarding the liability and the delivery of cheque. It was suggested that no amount was due and that Ext.P1 cheque was issued as security. It is pertinent to note that the revision petitioner remained silent after the receipt of notice demanding discharge of the liability. Had the defence now set up been true the revision petitioner would have retorted to the notice. The silence after the acknowledgment of the notice demanding discharge of liability would show that in fact the revision petitioner had no good defence. The learned counsel for the Crl.R.P.No.3944/2007 3 revision petitioner advanced a contention that the notice demanding discharge of liability was caused out of time. Ext.P6 would show that the cheque was in fact returned on 21.1.2003. Notice was caused on 1.2.2003. So, it could not be said that the notice was not within the time. As against Ext.P6, a contention was taken that it was brought in evidence during the re- examination. Once a document is brought into evidence, regard should be given to it irrespective of the fact as to whether it was brought during chief examination or re-examination. The crucial aspect to be considered is that as to whether the opposite party was given an opportunity to cross-examine with reference to the document. The revision petitioner has no case he did not get an opportunity to cross-examine the witness with reference to Ext.P6. Due opportunity was given to the revision petitioner to challenge Ext.P6 and the evidence of PW1 regarding Ext.P6. But no material was disclosed to reject Ext.P6. So the date of dishonour as borne out by Ext.P6 is to be accepted. Since the notice was issued on 1.2.03 it is within the time limit prescribed by Section 138(b) of the Negotiable Instruments Act. Such being the materials on record in the absence of any evidence regarding Crl.R.P.No.3944/2007 4 the execution of the cheque by the revision petitioner, the evidence of PW1 remains uncontraverted. There is no reason to disbelieve PW1. The evidence of PW1 is further supported by the presumptions under Sections 118 and 139 of the Negotiable Instruments Act. The conviction is based upon the cogent evidence. 5. The Appellate court was very lenient in reducing the sentence to imprisonment till rising of the court. The order to pay compensation is quite appropriate. No interference with the sentence is warranted. The revision petition is devoid of merit. Accordingly it is dismissed. The revision petitioner is granted one months time to remit the compensation. P.S.GOPINATHAN, JUDGE. dvs