IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 10th SEPTEMBER 2009 / 19TH BHADRA 1931 Crl.Rev.Pet.No. 233 of 2006() ----------------------------- CRA.325/2005 of I ADDL.SESSIONS COURT, ERNAKULAM CC.658/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONERS: APPELLANT/ACCUSED: --------------------------------------- 1. SREENAGESH, AGED 49 YEARS, MANAGING DIRECTOR, VARDHAN EQUIPMENTS (P) LTD., PLOT NO.9, MENON BARI, KALAMASSERY. 2. VARDHAN EQUIPMENTS (P) LTD., REGISTERED OFFICE, PLOT NO.9, MENON BARI, KALAMASSERY REP. BY 1ST PETITIONER. BY ADV. SRI.K.A.ALIYAR SRI.SHABEEB ALIYAR SRI.PRASUN.S RESPONDENTS: COMPLAINANT - STATE: ----------------------------------- 1. A. HARIDAS, S/O. ACHUKUNJU, 8/2, VIDHYABHAVAN, KALAMASSERY. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.SHAJAN JOSEPH FOR R1 PUBLIC PROSECUTOR SRI.RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------------- Crl.R.P.No.233 of 2006 -------------------------------------- Dated this the 10th day of September, 2009 ORDER The revision petitioners are the accused in C.C.No.658 of 1997 on the file of the Judicial Magistrate of the First Class-II, Aluva. The first respondent herein prosecuted the revision petitioners alleging offence under section 138 of Negotiable Instruments Act with an allegation that in discharge of a liability of Rs.4,00,000/- the revision petitioners issued Ext.P1 cheque dated 15/9/1997 for the said amount drawn on State Bank of India, Ernakulam Broad Way Branch and that when Ext.P1 was sent for collection it was returned bounced for insufficiency of funds along with Ext.P2 memo and that notice demanding discharge of the liability was returned unclaimed and that the liability was not discharged. 2. The revision petitioners pleaded not guilty to the charge when the particulars of the complaint were explained on their appearance in response to the process. Hence, they were sent for trial. The learned magistrate, after due trial, by judgment dated 9/3/2001 found in favour of the revision Crl.R.P.No.233 of 2006 2 petitioners. Consequently they were acquitted. The first respondent took up the matter in appeal and as per judgment dated 11/1/2005 in Crl.Appeal No.477 of 2001, this court allowed the appeal and the case was remanded back to the trial Court for fresh disposal. The learned Magistrate thereafter on consideration of the evidence on record arrived a finding of guilty. Consequently, the revision petitioners were convicted under section 138 of Negotiable Instruments Act and the first petitioner was sentenced to simple imprisonment for a period of 3 months. The second revision petitioner was directed to pay a sum of Rs.4 lakhs as compensation under Section 357(3) of the Code of the Criminal Procedure. Assailing the above conviction and sentence, Crl.Appeal No.325/05 was filed before the Sessions Judge, Ernakulam. The learned Additional Sessions Judge, to whom the appeal was made over, by judgment dated 19/12/2005, dismissed the appeal. 3. Assailing the legality, correctness and propriety of the above conviction and sentence, this revision petition was filed. Having heard the learned counsel appearing for the first Crl.R.P.No.233 of 2006 3 respondent who has taken me through evidence on record I find that the courts below were right in arriving a conclusion that Ext.P1 cheque was issued by the revision petitioners in discharge of a liability amounting to Rs.4 lakhs. The evidence of PW.1 is supported by the presumptions under section 118 & 139 of the Negotiable Instruments Act that it was drawn for valuable consideration and issued in discharge of the liability. The fact that the cheque was bounced for insufficient funds is established by Ext.P2. Though a lawyer notice as evidenced by Ext.P2 and Ext.P4 were caused demanding discharge of the liability, it was returned as evidenced by Ext.P5 & Ext.P6. Hence, the first respondent was justified in launching the prosecution. 4. Revision petitioners did not take up a specific defence when questioned under section 313 of the Code of Criminal Procedure. But, the wife of the first revision petitioner was examined as DW.1. She would depose that the second revision petitioner establishment was under the custody of the first respondent for some time and during that time some how he had obtained the custody of the cheque and manipulating the cheque the Crl.R.P.No.233 of 2006 4 prosecution was launched. The courts below have rightly disbelieved the evidence of DW.1 for cogent reasons. There is no whisper in the testimony of DW.1 that Ext.P1 was not signed by her husband. There is no case for the revision petitioners that they had kept blank signed cheques in the establishment. It is in that back ground the courts below disbelieved the defence version. The conviction and sentence under challenge are substantiated by the evidences of PW.1 supported by Ext.P1 to P7. I find no error, illegality or impropriety in the conviction under challenge. The sentence awarded is very moderate. There is no merit in the revision petition. Accordingly, it is dismissed. P.S.GOPINATHAN, JUDGE Skj.