IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 689 of 2006() ------------------------------------- CRA.1101/2003 of II ADDL.SESSIONS COURT, ERNAKULAM CC.959/1999 of ADDL.CHIEF JUDICIAL MAGISTRATE, ERNAKULAM .................... REVN. PETITIONER/APPELLANT/ACCUSED : ----------------------------------------------------- C.V.SHAJAN, AGED 35 YEARS, S/O.VELAYUDHAN, CHAKKUNGAPPADI, VAIKARA KARAYIL, RAYAMANGALAM, KUNNATHUNADU TALUK. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE : -------------------------------------------------------------------------- 1. P.P.KARIM, PHED COLONY, KATHRIKADAVU, KALOOR PO, KOCHI 682 017. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING : Crl.Rev.Pet.No. 689 of 2006 ORDER ON CRL.M.A.NO.1916 OF 2006 IN CRL.R.P.NO.689 OF 2006 DISMISSED 13.11.2008 SD/- M.N.KRISHNAN, JUDGE -TRUE COPY- P.A. TO JUDGE pac M.N. KRISHNAN, J ----------------------- CRL. R.P.No. 689 OF 2006 --------------------------------- Dated this the 13th day of November, 2008 ORDER This Revision Petition is preferred against the judgment in Crl. Appeal No. 1101/2003 of the District and Sessions Judge, Ernakulam. The said appeal was preferred against the conviction and sentence passed by the Additional Chief Judicial Magistrate, Ernakulam in C.C. No. 959/99. The Trial Court convicted the accused under Section 138 of the Negotiable Instrument Act and sentenced him to undergo Simple Imprisonment for one month and to pay fine of Rs. 65,000/-, which on appeal was modified into one day till rising of the court and to pay a fine of Rs. 50,000/- It was against that decision the accused has come up before this court. 2. The case of the complainant is that the accused has borrowed a sum of Rs. 40,000/- and towards the discharge of the liability had issued a cheque which when presented for encashment returned for insufficiency of funds. In spite of notice, the amount was not paid and hence the prosecution. On the other hand, the accused contended that there was some transaction in connection with an autorickshaw. At that time he has issued blank cheques in CRL. R.P.No. 689 OF 2006 2 favour of the complainant and complainant promised to return the cheque within one month. In spite of the same he had utilised that cheque for filing a complaint. In the trial court PW1 and DW1 were examined , Exts. P1 to P6 and D1 to D4 were marked. On analysing the evidence, the court below found the accused guilty and convicted him thereunder. The learned counsel for the revision petitioner would contend that both the trial court as well as appellate court had committed serious error in not properly looking into Exhibits D3 and D4 which would indicate the proof of discharge set up by the defendants. It is also contended that after the closure of the evidence, an application under Section 311 of Criminal Procedure Code was filed to recall and examine PW1 with respect to D3 and D4. Appellate Court had not seen the application in the file. Nothing is there to show that such a petition has been filed. Even then the courts considered Exts. D3 and D4 documents . It appears, according to the revision petitioner, that the complainant had issued those receipts. The trial court found that when PW1 was in the box no question was put to him with respect to this discharge and no documents were tendered to confront him at the time of cross examination. Notice has been sent before initiation of the CRL. R.P.No. 689 OF 2006 3 proceedings for which no reply has been sent. So taking into consideration all these facts and even the ignorance of the revision petitioner regarding the place in which the documents were typed, the court below found that Exts. D3 and D4 are documents of suspicious nature which shall not be entertained. Then it analysed PW1 and other documents and arrived at a decision that PW1 has succeeded in proving execution of the cheque as well as the dishonour of the cheque and found the accused guilty of the offence under Section 138 of N.I. Act. I do not find any perversity, illegality of irregularity which requires interference under the revisionary jurisdiction. So far as sentence is concerned, the trial court convicted him to undergo Simple Imprisonment for one month and to pay a fine of Rs. 65,000/- which was reduced to that of one day, that is till the rising of court and to pay a sum of Rs. 50,000/-. I feel some leniency can be shown by reducing the amount, converting 357(3) in to that of fine of Rs. 45,000/- In the result, Criminal Revision Petition is disposed of as follows: 1. Conviction under Section 138 is sustained. 2. The revision petitioner is sentenced to undergo Simple CRL. R.P.No. 689 OF 2006 4 Imprisonment for one day that is till the rising of the Court and to pay a fine of Rs. 45,000/- which on realisation shall be disbursed to the complainant and in default of payment of fine, revision petitioner shall undergo Simple Imprisonment for two months. 3. The revision petitioner shall present himself before the Trial Court on 12.2.2009 to receive the sentence and to pay the fine failing which the trial court shall execute the sentence. The Crl. Revision Petition is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm