IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.Rev.Pet.No. 2845 OF 2007(E) ------------------------------- CRA.1082/2005 OF IVTH ADDL.SESSIONS COURT, ERNAKULAM CC.1003/2001 OF JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- JANCY JOSEPH, W/O. JOSEPH, AGED 43 YEARS, KARAKKATT VEEDU, MORAKKALA KARA, KUMARAPURAM P.O., KUNNATHUNADU TALUK. BY ADV. SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: ------------------ 1. N.E.VARGHESE, NAMMUNNARIYIL VEEDU, MORAKKALA KARA, KUNNATHUNADU TALUK. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU FOR R2 SRI.V.RAJENDRAN (PERUMBAVOOR) FOR R1 SRI.GEORGE VARGHESE KIZHAKKAMBALAM FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2845 OF 2007 ------------------------------------------ Dated this the 23rd day of September, 2008 O R D E R The revision petitioner was concurrently convicted and sentenced for the offence under section 138 of Negotiable Instruments Act. First respondent filed the complaint contending that towards repayment of Rs.1,50,000/- borrowed by the petitioner, he issued Ext.P1 cheque drawn in his account maintained in Kumarapuram branch of Kunnathunadu Service Co-operative Bank and when the cheque was presented for encashment, it was dishonoured for want of sufficient funds, under Ext.P2, and first respondent sent Ext.P3 lawyer notice demanding the amount covered by the cheque and it was served on the petitioner on 7.7.2001 as stated in Ext.P5 letter issued by Postmaster and petitioner failed to pay the amount and thereby committed the offence under Section 138 of Negotiable Instruments Act. Petitioner pleaded not guilty. 2. First respondent was examined as PW1 and Ext.P1 to 5 were marked. The case of the petitioner when questioned CRRP2845/07 2 under section 313 of Code of Criminal Procedure was that he had no transaction with the petitioner and Ext.P1 cheque was not issued by him and it was not the cheque leaf issued to him in account No.3668 of the Kunnathunadu Service Co-operative Bank and the check leaf was forged by the first respondent after printing the same and therefore he has not committed the offence. He did not adduce any oral or documentary evidence. Learned Magistrate on the evidence found him guilty and convicted and sentenced him for the offence under section 138 of Negotiable Instruments Act to simple imprisonment for three months and a compensation of Rs.1,51,000/- and in default simple imprisonment for 45 days under section 357(3) of Code of Criminal Procedure. Petitioner challenged the conviction and sentence before Sessions Court in Criminal Appeal 1082 of 2005. Learned Additional Single Judge on re-appreciation of evidence confirmed the conviction, but modified the substantive sentence to simple imprisonment for one month confirming the compensation. This petition is filed under section 397 and 401 of Code of Criminal Procedure. 3. When the revision petition was taken up on CRRP2845/07 3 19.9.2008, there was no representation for the petitioner, though first respondent was present. When the revision was taken up today also, there was no representation for the petitioner. Hence the revision is disposed after hearing the learned counsel appearing for first respondent and on perusing the records. 4. The contention taken in the revision petition is that Courts below did not properly appreciate the evidence and sufficient opportunity was not granted to adduce defence evidence. It was contended that petitioner has specifically contended that Ext.P1 cheque was not issued in the cheque book issued to the petitioner in his account and it is a forged cheque created by first respondent after fraudulently printing the cheque book and an opportunity should have been granted to prove the case. 5. The records of the learned Magistrate show that evidence of the complainant was closed on 16.7.2005 after examination of PW1 and the case was posted for questioning the accused under section 313 of Code of Criminal Procedure and he was questioned on 9.8.2005, on which day, in addition to the CRRP2845/07 4 answers recorded by the learned Magistrate, petitioner had filed a separate written statement contending that the cheque leaf was not the one issued to him and it was fraudulently created by first respondent. The proceeding paper shows that summons was issued to the witnesses in the witness list through the petitioner and it was posted to 31.8.2005 and petitioner filed M.P.2870 of 2005 for permission to examine himself as witness, under section 315 of Code of Criminal Procedure. The proceedings on 31.8.2005 shows that petitioner submitted that he is not pressing the petition filed under section 315 of Cr.P.C. and sought time for production of the documents by the witness. The Secretary of the Co-operative Society was summoned to produce the Cheque Issue Register to show the details of the cheque book issued to the petitioner in his account in 3668. On 18.10.2005, the witness namely the Secretary in charge of the Society appeared and filed a statement before the Court to the effect that the cheque issue Register was produced in C.C.262 of 2001 and is not in the custody of the Society and therefore it cannot be produced by the witness. The records show that the case was again adjourned for petitioner to take steps and on CRRP2845/07 5 22.11.2005 evidence was closed as no further steps taken. Petitioner thereafter filed M.P.3911 of 2005 under section 311 of Code of Criminal Procedure to re-open the evidence to enable him to produce the Cheque Issue Register relating to account No.3668. Learned Magistrate dismissed the application and thereafter arguments were heard and petitioner was convicted. In such circumstances, it cannot be said that petitioner was not given sufficient opportunity to prove his case. At least when the witness filed a statement before the Court to the effect that the register was produced in C.C.262 of 2001, petitioner could have filed an application to call for the records from that case, if in fact the document is necessary to prove his case. As petitioner did not take any steps and sufficient opportunity was granted, I do not find any reason to interfere with the conviction on the ground that opportunity was not granted to him. 6. The learned Magistrate and learned Sessions Judge on appreciation of evidence of PW1 found that Ext.P1 cheque was issued towards repayment of the amount payable by the petitioner to the first respondent and it was dishonoured for want of sufficient funds. Ext.P2, the dishonour memo issued by CRRP2845/07 6 the bank shows that cheque was dishonoured for insufficient funds and not for the reason that the cheque was not the one issued in that account. If in fact Ext.P1 cheque was not issued to the petitioner in his account No.3668, as contended by the petitioner the bank would have dishonoured the cheque on that ground. The fact that Ext.P1 cheque was dishonoured only for want of sufficient funds falsify the defence case that it was not a cheque from the cheque book issued to the petitioner. The evidence establishes that no reply was also sent to the notice demanding payment. If in fact Ext.P1 cheque was not issued by petitioner and that too was not a cheque issued in the account maintained by him, at least when Ext.P3 notice was received by the petitioner, he would have sent a reply stating that it is not the cheque issued by him and it is not the cheque issued to the petitioner from the Bank and he is not liable to pay any amount. The conspicuous failure to send a reply to the notice also strengthens the case of PW1 that it was issued towards discharge of an existing liability. In such circumstances, conviction of the petitioner for the offence under section 138 is perfectly legal and warrants no interference. CRRP2845/07 7 7. Then the only question is with regard to the sentence. Learned Sessions Judge modified the sentence to simple imprisonment for one month in addition to the compensation awarded by the learned Magistrate. Interest of justice will be met if the substantive sentence is reduced to imprisonment till rising of Court and compensation is modified to a fine of Rs.1,55,000/- and in default, simple imprisonment for one month. On realisation of the fine amount, Rs.1,51,000/- is to be paid to first respondent as compensation. M. SASIDHARAN NAMBIAR, JUDGE Okb/-