IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933 Crl.Rev.Pet.No. 2258 of 2005 ------------------------------ CRA.429/2003 & CRL.R.P.NO.38/2003 of SESSIONS COURT, PATHANAMTHITTA CC.333/2002 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... REVN. PETITIONER: APPELLANT/ACCUSED. --------------------------------------- SUDHESSAN NAIR, SREE NILAYAM HOUSE, OMALLOOR VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA. BY ADV. SRI.M.P.PRAKASH RESPONDENTS: /COMPLAINANT. ------------------------------------- 1. T.S.SUNDARESAN, S/O.SUDHAKARA PANCIKER, DEVAMANA HOUSE, PAZHUMPARA MURI, VADASSERIKKARA, RANNI TALUK. 2. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.K.SAJEEV FOR R1 R2 BY PUBLIC PROSECUTORSMT. ANEY PAUL THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/3/2011 THE COURT ON 24/6/2011 PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P.NO. 2258 OF 2005 ======================= Dated this the 24th day of June 2011 ORDER The revision petitioner is the accused in C.C.No.333 of 2002 on the file of the Court of Chief Judicial Magistrate, Pathanamthitta, who is challenging the concurrent finding against him for the offence under Section 138 of the Negotiable Instruments Act. The courts below found the accused guilty and convicted him thereunder. The trial court after considering the evidence convicted the accused for the said offence and sentenced him to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for thirty days vide judgment dated 15/11/2003 in C.C.No.333/2002. 2. The accused preferred appeal numbered as Crl.A.No.429/2003 before the Court of Sessions, Pathanamthitta. CRRP 2258/2005 -2- The complainant also preferred Crl.R.P.No.38/2003 seeking to enhance the sentence. Both the Crl. appeal and the Crl.revision petition were disposed of by the learned Sessions Judge together vide judgment dated 3/6/2005. The appeal was dismissed confirming the conviction. But,the Crl. revision petition was allowed and the sentence was altered to undergo simple imprisonment for two months and to pay compensation of Rs.80,000/-under Section 357(3)Cr.P.C. and in default to undergo simple imprisonment for two months more. This has been challenged by the revision petitioner/accused in this revision petition. 3. Heard the learned counsel for the revision petitioner and the learned counsel for the first respondent. Heard the learned Public prosecutor also. 4. It is argued by the learned counsel for the revision petitioner that the sentence imposed on the revision petitioner by the trial court was implemented by the Government authorities by invoking the provisions of revenue recovery and the revision petitioner had compelled to remit an amount of Rs.10,000/- as fine on 16/8/2005. The trial court imposed the CRRP 2258/2005 -3- fine of Rs.10,000/- against the revision petitioner on the finding that a civil suit was pending between the parties and the discretion exercised by the trial court cannot be interfered by the appellate court. It is also argued by the learned counsel for the revision petitioner that there was no legally enforceable debt and no offence has been committed by the revision petitioner. The case of the first respondent/complainant was vague and the complainant has not proved the details of debt, the allegation of borrowal of the amount etc. and no sufficient opportunity has been given to the revision petitioner to prove his case that the cheques were lost and were misused by the first respondent. The imposition of compensation under Section 357(3)Cr.P.C. with a default clause by the appellate court is illegal for which an interference of this Court is prayed for. 5. The case set up by the defence before the trial court during cross examination of PW1 and during S.313 Cr.P.C. questioning was that the accused did not borrow any amount from the complainant and he was seeing the complainant for the first time from the court and that the complainant had foisted a case against him by misusing the cheques which were lost from CRRP 2258/2005 -4- the accused. According to the learned counsel for the first respondent, Exts.P1 and P3 cheques dated 20/1/2002 and 20/5/2002 for Rs.50,000/- and 25,000/-respectively issued by the accused which were drawn in his account towards the discharge of legally enforceable debt due to the complainant and when the same were presented for collection before the Bank, those were dishonoured due to insufficiency of funds. To prove the case of the complainant, he was examined as PW1. Nothing has been elicited in the cross examination of PW1 to discredit his version in support of the complaint. Even after receipt of lawyer notice by the accused, no reply has been sent disputing allegations raised therein. The revision petitioner/accused did not mount the witness box to substantiate his defence. After considering the evidence adduced from the side of the complainant, the trial court as well as the appellate court have found the accused guilty of offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced him thereunder. In these circumstances, I found that the courts below were fully justified in rejecting the defence of the revision petitioner. Sufficient opportunities were given by the trial court CRRP 2258/2005 -5- to adduce evidence on the part of the defence which was not availed of by the accused. Under Section 139 of the Negotiable Instruments Act, there is legal presumption that the cheque was issued for discharging antecedal liability and that presumption can be rebutted by the drawer of the cheque. In the present case, no valid and acceptable evidence whatsoever has been adduced by the accused to rebut that presumption available to the complainant under Section 139 of the Negotiable Instruments Act. 6. The jurisdiction of revision is essentially the power and duty of superintendence and correction. The crucial question is whether the findings of fact rendered by the trial court as well as by the appellate court are so grossly erroneous or perverse as to warrant revisional interference. I do not find any error, illegality or impropriety in the finding so recorded concurrently by the courts below. The conviction was thus rightly entered against the revision petitioner. 7. What now survives for consideration is the question as to whether an improper sentence has been imposed on the revision petitioner. Having regard to the facts and circumstances CRRP 2258/2005 -6- of the case, I am, however, inclined to modify the sentence imposed on the revision petitioner. Accordingly, if the revision petitioner pays/deposits Rs.80,000/- to the first respondent/complainant by way of compensation under Section 357(3)Cr.P.C. as ordered by the court below in Criminal revision petition No.38/2003 within three months from today, then he need to undergo only imprisonment till the rising of the court. If the revision petitioner commits default to pay/deposit the amount as aforesaid, he shall undergo simple imprisonment for three months by way of default sentence. In case of deposit, the complainant can withdraw the amount on filing proper application. The revision petitioner shall appear and his sureties shall produce him before the learned Magistrate on 24-09-2011 for execution of the sentence. This Crl.revision petition is disposed of confirming the conviction but modifying the sentence as above. M.C. HARI RANI JUDGE ks.