IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH AUGUST 2011 / 14TH SRAVANA 1933 Crl.Rev.Pet.No. 1907 of 2011 ---------------------------------------- [CRL.A.NO.57/2010 OF ADDITIONAL SESSIONS COURT (FAST TRACK-II), ALAPPUZHA, CC.NO.222/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT -I, ALAPPUZHA] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- KOYACHI, AGED 55 YEARS, SON OF ABDUL RAZAKKUNJU, RAHNA MANZIL, PUNNAPRA.P.O., ALAPPUZHA. BY ADVS. SRI.PRAKASH P.GEORGE, SRI.B.PREMNATH, SRI.SADER E.REAZ. RESPONDENTS/STATE AND COMPLAINANT: ---------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.R.MURALEEDHARAN PILLAI, AGED 53, SON OF RAGHAVAN PILLAI, SREEVILASAM, STADIUM WARD, ALAPPUZHA, PIN – 688 580. R1 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.1907 OF 2011 ----------------------------------- Dated this the 5th day of August, 2011 O R D E R Revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', concurrently, by the two inferior courts. Negativing the plea of not guilty canvassed by the accused, the trial Magistrate, on his conviction, sentenced him to undergo simple imprisonment for a period of three months and to pay compensation of Rs.1,10,000/- with default term of imprisonment for a period of three months more. In appeal, affirming the conviction, the learned Additional Sessions Judge upheld the sentence without any modification. Feeling aggrieved, the revision petitioner/accused has filed this revision. 2. Before me, the learned counsel for the petitioner/accused contended that both the courts below have mis-appreciated the facts presented and also the defence canvassed of denying the execution of the cheque and also the Crl.R.P.No.1907/2011 2 transaction imputed by the 2nd respondent/complainant relating to such instrument. There was, in fact, denial of opportunity also to the accused in establishing his defence in as much as not giving a chance to examine the expert, who had conducted scientific examination over the cheque exhibited as Ext.P1 on the application of the accused and filed a report before the court, according to the counsel. The report of the expert indicated that the entries in the cheque were written in a different ink from that of the ink in the pen used by the drawer for subscribing the signature, and that, according to the counsel, would indicate that the writings in the cheque were at a different point of time, which was against the assertion of the complainant that the writings and signatures were made at the same time. Such material circumstances were totally discarded by both the courts, is the submission of the counsel to contend that there was no proper appreciation of the defence set up that a blank signed cheque alone had been given as security at an anterior point of time to the complainant and the present complaint had been filed under the circumstances stated by him after forging entries there into. Conviction of the accused, in the aforesaid Crl.R.P.No.1907/2011 3 circumstances, warrants interference, is the submission of the counsel. 3. Going through the judgments rendered by the trial Magistrate and also that of the learned Sessions Judge, I find no merit in the submissions made by the counsel to assail the conviction concurrently rendered by the courts below. First and foremost, it is to be pointed out that the trial Magistrate, who had the opportunity to watch the demeanour and deportment of the witnesses examined, including the complainant and the accused, found the testimony of the complainant examined as PW1, trustworthy, reliable and convincing and that of the accused, DW2, unworthy of any merit. Needless to state, the conclusion drawn by the trial Magistrate, who had the opportunity to record the oral evidence of the witnesses has to be given due consideration by any superior forum in adjudging the disputed issues involved in the case. More so, in exercise of the revisional jurisdiction, whereunder, a finding on fact rendered by the inferior courts is assailable only on showing in what way such finding suffers from infirmity rendering it Crl.R.P.No.1907/2011 4 unworthy of value. Finding of fact by an inferior court if not shown to be perverse, or that it could not have been formed on the materials on record or otherwise shown to be unsustainable under law, for any reason whatsoever, cannot be disturbed by the revisional court even if it finds that a different view is also possible on the materials on record. If the view taken by the inferior court is also permissible on the records, then, possibility of having a different view on scrutiny of the materials is no ground to disturb the finding of the inferior court. When such be the settled position of law, and two courts have concurrently entered a finding of guilt on the accused, after examining the materials tendered in the case meticulously, the grounds now canvassed to assail the finding of guilt and conviction by the accused are hardly sufficient for invoking the revisional jurisdiction of this Court. In the context, it is also to be pointed out that the accused had set up a defence that the cheque (Ext.P1) was issued by him in blank form with signature alone as a security in respect of a loan transaction with the complainant about 23 years before the presentation of the cheque, its dishonour and filing of the complaint. He had a further case that Crl.R.P.No.1907/2011 5 though he had discharged the aforesaid loan transaction and at his instance the complainant had advanced another loan to a different person, but, the debtor thereof had failed to discharge such loan fully and, therefore, forging false entries in the blank signed cheque, which were handed over by him earlier, the complaint was filed to prosecute him for the offence under Section 138 of the N.I.Act. To substantiate the defence pleaded, he had examined the Manager of the Bank, in which he maintained the account. Ext.D1, the application for opening of his account produced by the Bank Manager disclosed that he opened his account only in the year 1999. The falsity of the defence case canvassed by the accused thus demonstrated before the court he had developed a further defence that he had a previous account with the bank and that had been closed much earlier. No material whatsoever to substantiate the plea so canvassed belatedly during the course of the trial, was tendered. It was in this backdrop, and taking into account the materials tendered in the case, the trial Magistrate has concluded that the defence set up was nothing, but a futile attempt to wriggle out of the penal consequences arising on dishonour of the cheque Crl.R.P.No.1907/2011 6 issued by him. As already indicated, after re-appraisal of the evidence, the finding of guilt entered by the trial Magistrate was approved and upheld by the learned Sessions Judge. The accused was denied of an opportunity to examine the expert through whom, Ext.P1 cheque was subjected to scientific examination, which has been projected before me, and also in establishing his defence, in the given facts of the case, has no value at all. The best evidence was still available to the accused, but, he had not offered any explanation why such evidence was tendered in the case. He could have produced his pass book relating to the cheque (Ext.P1) if at all such cheque arose from an account maintained by him during the anterior period of time, atleast more than two decades before the filing of the complaint. It is ridiculous even to infer that the blank signed cheque issued by the accused in respect of a loan transaction with the complainant was retained by him for 28 years to prefer a complaint against him, for the reason that the loan transaction with another, who was introduced by the accused, was not settled in full as contended by the accused. In appreciating the merit of the complainant’s case, the court can safely take note of Crl.R.P.No.1907/2011 7 the proved facts and circumstances presented in the case, which, no doubt, can include the falsity of the defence canvassed by the accused. Where the evidence tendered by the complainant is found trustworthy and the defence canvassed by the accused is found to be not only unacceptable but totally false, the inescapable conclusion has to be formed that the accused is guilty of the offence imputed, provided materials on record also prove the ingredients of the offence. Concurrent finding of guilt entered by the courts below to hold the accused guilty of the offence, is found to be unassailable. 4. So far as the sentence imposed against the accused, it cannot be stated that the substantive term of imprisonment imposed is unjustified. Revision petitioner/accused is stated to be an employee of BSNL. The tenacity with which he has advanced the defence, which is shown to be false, and persisting with such defence before different forums, no doubt, is a matter to be looked into whether any leniency in the matter of punishment is called for. However, taking note of the offence involved, which has arisen from a dishonour of a cheque and also Crl.R.P.No.1907/2011 8 the submissions of the counsel, I find the substantive term of imprisonment imposed against the accused can be limited reducing it to imprisonment for a day, till the rising of the court, retaining the compensation and also the default term without any modification. Sentence is modified as indicated above. 5. Petitioner is directed to appear before the Judicial First Class Magistrate Court – I, Alappuzha on 05.09.2011 to serve out the imprisonment for a day, till the rising of the court, and to report the payment of the compensation. There will be a direction to the learned Magistrate to keep in abeyance the execution of the sentence till that date. In default of his appearance and non-payment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. With the above direction, the revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.1907/2011 9