IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 25TH MARCH, 2011 / 4TH CHAITHRA, 1933 Crl.Rev.Pet.No. 557 of 2011 ----------------------------------- (CRA.592/2007 of Ist ADDL. SESSIONS COURT, TRIVANDRUM ST.127/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT-VI) .................... REVN. PETITIONER(S): PETITIONER/APPALLANT/ACCUSED -------------------------------- M.CHINNAYAN NADAR, AGED 73, S/O. MUTHUSWAMY, KRISHNABHAVAN, CHOOZHATTUKOTTA, MALAYAM.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.A.B.MOHANAKUMAR RESPONDENTS(S): COMPLAINANT AND STATE -------------------------- 1. E.MOHANAN, MANEESH BHAVAN, VATTAVILA, PAYATTUVILA.P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.V.TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSIONON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ----------------------------------------------------- Crl.R.P.No. 557 of 2011 ----------------------------------------------------- Dated this the 25th day of March,2011 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the first respondent/complainant against the revision petitioner/accused is that towards the discharge of the liability due to the complainant, the accused issued two cheques Ext.P1 dated 15.8.2002 for a sum of `.50,000/- and Ext.P1(a) dated 17.8.2002 for a sum of `.80,000/- which, when presented for encashment, were dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amounts, even though he was requested for the same by issuing a statutory notice. With the said allegation, initially the complainant approached the Additional Crl.R.P.No.557 of 2011 :-2-: Chief Judicial Magistrate Court, Thiruvananthapuram wherein S.T.No.375 of 2003 was instituted on taking cognizance for the offence under Section 138 of the N.I.Act. Subsequently, it was made over to the Judicial First Class Magistrate Court-VI, Thiruvananthapuram wherein the case is renumbered as S.T.No. 127 of 2006. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P7 and the oral evidence of himself as PW1. From the side of the defence, DWs.1 and 2 were examined, but no documentary evidence was produced. On the basis of the available materials and evidence on record, the trial court has found that the cheques in question were issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus, accordingly, the court held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. Crl.R.P.No.557 of 2011 :-3-: On such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for two months and also directed to pay an amount of `.1,30,000/- as compensation to the complainant under Section 357(3) of the Cr.P.C.and the default sentence is fixed as one month simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, as per judgment dated 29.11.2010 in Crl.A.No.592 of 2007, the court of the Ist Additional Sessions Judge, Thiruvananthapuram allowed the appeal only in part and thus, while confirming the conviction, the sentence of imprisonment is modified and reduced and accordingly, the revision petitioner is sentenced to undergo simple imprisonment till the rising of the court and to pay compensation of `.1,30,000/- to the complainant under Section 357(3) of the Cr.P.C. and the default sentence is fixed as simple imprisonment for a period of 13 days. It is the above conviction, sentence and direction to pay the compensation, challenged in this Crl.R.P. Crl.R.P.No.557 of 2011 :-4-: 4. I have heard learned counsel appearing for the revision petitioner Sri.A.B.Mohana Kumar and also perused the judgments of the courts below. 5. Learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to establish the execution and issuance of the cheque and the transaction claimed by him. According to the learned counsel, the trial court as well as the appellate court have miserably failed to consider those aspects and came to a wrong conclusion that the revision petitioner is guilty under Section 138 of the N.I.Act. Reiterating the contention taken by the accused during the trial and in the appellate stage, the learned counsel submitted that absolutely, there was no transaction between the first respondent/ the complainant and the revision petitioner and the cheques in question were forcibly taken from the possession of the revision petitioner and the above defence is not properly appreciated by the courts below. According to the learned counsel, the accused succeeded in establishing his defence by Crl.R.P.No.557 of 2011 :-5-: adducing evidence through the depositions of DWs.1 and 2 and also through the evidence brought during the cross-examination of PW1. Learned counsel has pointed out that regarding the execution of the cheques, issuance of the same and the transaction, absolutely there are no allegations and materials either in the lawyer notice or in the complaint and even PW1 failed to state anything regarding those aspects during his cross-examination. Learned counsel also pointed out that a casual perusal of Exts.P1 and P1(a) would show that the endorsements contained therein are not that of the revision petitioner. These aspects were also omitted to be considered by the courts below. Thus, according to the learned counsel, the revision petitioner is entitled to get an acquittal. 6. I am unable to sustain the above contentions. The limitation of this Court, while exercising the revisional jurisdiction, does not permit me to re-appreciate the evidence on record. The trial court as well as the appellate court have concurrently found Crl.R.P.No.557 of 2011 :-6-: that the cheques in question were issued by the revision petitioner towards the discharge of the liability due to the complainant. In support of the above findings, the courts below relied upon the evidence of PW1 and Exts.P1 and P1(a) produced by the complainant from his possession. Admittedly, Exts.P1 and P1(a) bear the signature of the revision petitioner and those cheques pertained to the account maintained by the revision petitioner. There is no plausible and convincing explanation as to how the cheques in question reached in the hands of the complainant. Of course, the defence has got a version that those cheques were forcibly taken from the possession of the revision petitioner by the complainant and his henchmen, connected with the transaction between the complainant and the son of the revision petitioner. But, there is no evidence to substantiate the above version. The trial court has found that if the above fact is true, naturally, the revision petitioner would have filed a complaint before the Police, but in the present case, no evidence is adduced in this regard. Crl.R.P.No.557 of 2011 :-7-: Learned counsel for the revision petitioner submitted that though a complaint was filed before the Police, the Police did not take any action. According to me, if there is any omission on the part of the Police in taking action on the basis of the complaint which disclosed a cognizable offence, the petitioner would have left with other remedies. But, it seems that he did not take any steps in this regard. It is also relevant to note that, even according to the counsel, as evident from the reply notice, the revision petitioner has got a case that the cheques in question were forcibly taken on 15.7.2002. But, though no complaint was filed before the Police, the revision petitioner did not care to send an intimation to his banker informing and requesting the banker not to encash the cheques if the same are presented for encashment. In the absence of any materials or evidence to that effect, it is unbelievable that the cheques were taken on 15.7.2002 forcibly. Therefore, the attempt of the defence to give an account as to how the cheques reached in the hands of the complainant is failed. In the light of Crl.R.P.No.557 of 2011 :-8-: the above facts and circumstance, I find no reason to interfere with the concurrent findings of the courts below and accordingly, the conviction recorded by the courts below against the revision petitioner is confirmed. 7. As this Court is not inclined to interfere with the order of conviction, learned counsel for the revision petitioner submitted that some breathing time may be granted to the revision petitioner to pay the compensation amount. In the light of the facts and circumstances involved in the case, I am of the view that the said submission requires positive consideration. 8. It is relevant to note that the cheques in question are dated 15.8.2002 and 17.8.2002 respectively for `.50,000/- and `.80,000/-. From the findings of the courts below, which are confirmed by this Court, a sum of `.1,30,000/-, which belongs to the complainant, is with the revision petitioner for the last 8 years. If that be so, while granting time to the revision petitioner to pay the compensation amount, the interest of the complainant has also Crl.R.P.No.557 of 2011 :-9-: to be protected. Therefore, the compensation amount requires slight interference. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment as modified and fixed by the appellate court, the revision petitioner is directed to pay a sum of `.1,80,000/- (Rupees One Lakh Eighty Thousand only) to the complainant as compensation under Section 357(3) of the Cr.P.C. within three months from today and in default, the revision petitioner is directed to undergo simple imprisonment for a period of three months. Accordingly, the revision petitioner is directed to appear before the trial court on 27th June,2011 to receive the sentence and to pay the compensation amount. If there is any failure on the part of the revision petitioner to receive the sentence and to pay the compensation amount, the trial court is free to take coercive steps to secure the presence of the revision Crl.R.P.No.557 of 2011 :-10-: petitioner and to execute the sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till 27th June,2011. V.K.MOHANAN, Judge. MBS/ Crl.R.P.No.557 of 2011 :-11-: