IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 Crl.Rev.Pet.No. 3019 of 2006() ------------------------------ CRA.601/2004 of ADDL. SESSIONS COURT FAST TRACK (ADHOC), MAVELIKKARA CC.664/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHENGANNUR .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- SUVARNA SURENDRAN, W/O.SURENDRAN, AGED 42, M/S SOORAJ STORES, EDAYARNAMULA PO, KOTTAKKAKAM, ARANMULA. BY ADV. SRI.K.P.SREEKUMAR SRI.R.GIREESH VARMA SRI.P.M.SATHEESH RESPONDENTS: RESPONDENTS/COMPLAINANT ------------------------------------- 1. BOBY ANTONY, AGED 31, MANAGING PARTNER, M/S.GENERAL TRADING COMPANY, GOVT. HOSPITAL JUNCTION, CHENGANNUR. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.JAYARAJ FOR R1 PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. = = = = = = = = = = = = Crl.R.P. No.3019 OF 2006 = = = = = = = = = = = = DATED THIS THE 7TH DAY OF FEBRUARY, 2011 O R D E R The revision petitioner is the accused in CC.No.664/2002 on the file of the Judicial Magistrate of the 1st Class-I Chengannur. The 1st respondent herein prosecuted the revision petitioner for offence under Section 138 of the Negotiable Instruments Act with an allegation that the revision petitioner purchased provision goods from the 1st respondent on credit and as on 5.8.2002 a sum of Rs.28,787/- was outstanding and in discharge of the liability Ext.P1 cheque dated 5.8.2002 drawn on Catholic Syrian Bank, Mulakuzha Branch, was issued and that when sent for collection through the State Bank of Travancore, Chengannur Branch, it was returned dishonoured with endorsement 'Exceeds Arrangements'. Though notice was caused demanding discharge, the liability was not discharged. 2. Responding to the process issued, the revision petitioner entered appearance and pleaded not guilty when the particulars of the offence were read over and explained. So, she was sent for trial. 1st respondent was examined as PW1 and Exts.P1 to P8 were marked on his side. After closing the evidence, the revision petitioner was questioned CRL. R.P. 3019/2006 2 under Section 313(1)(b) of the Code of the Criminal Procedure. The revision petitioner took up a defence that though she had purchased goods on credit from the 1st respondent, it was discharged and that the cheque, which was issued as security was not returned inspite of the discharge of the liability. However, no defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a conclusion of guilt. Consequently, the appellant was convicted and sentenced to simple imprisonment for two months and to pay Rs.30,000/- as compensation to the 1st respondent. Aggrieved by the above conviction and sentence, the revision petitioner filed Crl.A.601/2004. Additional Sessions Judge, (Adhoc) Mavelikkara, by judgment dated 21.3.2006 while confirming the conviction, reduced the sentence to imprisonment till the rising of the court and the order to pay compensation was sustained. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this Revision Petition was filed. 3. I heard the learned counsel appearing for the revision petitioner and perused the judgments of the courts below. 4. Having heard either side and perusing the judgments of the courts below, I find that the first respondent who was examined as PW.1 had given evidence in support of the liability and the issuance of Ext.P1 cheque in CRL. R.P. 3019/2006 3 discharge of the liability. So also, he has given evidence regarding the dishonour of the cheque for the reason 'Exceeds Arrangements'. Exts.P2 and P3 corroborate the evidence of PW.1 on that aspect. The evidence of PW.1 also would show that demanding discharge of the liability a lawyer notice, copy of which was marked as Ext.P4, was issued. After acknowledging the notice as evidenced by Ext.P6, Ext.P7 reply was caused by the revision petitioner. The defence version is that in 2000 there was some transaction between the revision petitioner and the first respondent and a sum of Rs. 8,000/- was due. As a security for that amount, Ext.P1 cheque was issued. According to the learned counsel for the revision petitioner, that liability was subsequently discharged; but the cheque was not returned. Regarding the discharge, no evidence was let in. So also, the revision petitioner had not cared to adduce any evidence to show that the liability was anything less than the amount covered by Ext.P1. According to the learned counsel for the revision petitioner, in cross examination PW.1 had admitted that the liability outstanding against the revision petitioner would be borne out by the ledger and balance sheet and that though the revision petitioner filed a petition as Criminal M.P. 2184 of 2004 that was dismissed by the trial court with no good reason and thus, the revision petitioner was denied opportunity to rebut the legal presumption under CRL. R.P. 3019/2006 4 Sections 118 and 139 of the Negotiable Instruments Act. The learned counsel had taken me through the said petition and the order of the trial court. In the petition, it is not specifically mentioned that the document was called for to substantiate the defence advanced. Whatever may be that, it is revealed that the revision petitioner was running a retail store by name 'Sooraj Stores' and goods were purchased from the first respondent on credit for the purpose of the business. In the normal course, the revision petitioner should have been maintaining an account. In the event the plea of discharge is true, there should have been entries in the account book regarding the discharge. So also, there was no difficulty for discharging the amount by making payment through cheque, especially when the first respondent was cautious enough to get Ext.P1 cheque as a security if the defence story is true. In this view of the matter, I find that the revision petitioner could have adduced her own evidence in support of the plea of discharge and the contention that the amount due was anything lesser than the amount covered by Ext.P1. For the best reason known to the revision petitioner, no such document in her custody was produced. According to the learned counsel, the shop run by the revision petitioner is too small to maintain an account and that in 2002 she closed the shop. The reason stated by the learned counsel does not appear to be convincing. The revision petitioner has not CRL. R.P. 3019/2006 5 shown any good reason for demanding back Ext.P1 cheque in the event there was any discharge as pleaded by the revision petitioner. In the above factual background, I find no reason to disbelieve PW.1 or to interfere with the concurrent finding of the courts below regarding the liability, issuance of cheque and dishonour of the same for insufficiency of fund. The conviction under challenge is based upon cogent evidence and requiries no interference. The appellate court was very lenient in reducing the sentence to imprisonment till the rising of the court. If at all the appellate court went wrong in awarding sentence, it is only towards leniency. There is no reason to interfere with the sentence. In the result, the revision petition fails. It is dismissed. The revision petitioner is granted three months time to deposit the compensation amount. If any amount is already in deposit, that shall be given credit to. P.S. GOPINATHAN, (JUDGE) Knc/-