IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 7TH FEBRUARY 2011 / 18TH MAGHA 1932 Crl.Rev.Pet.No. 3183 of 2010() ------------------------------ CRA.683/2009 of SESSIONS COURT, THRISSUR CC.75/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVISION PETITIONER(S): ---------------------------------------- A.M.MUHAMMAD YUSUF, KAISEE INDUSTRIAL, NITHIN NIVAS, UMAYANALLOR, KOLLAM DISTRICT, (A.M.MUHAMMED YUSUF, PROPRIETOR, KAISEE INDUSTRIES, MAIN ROAD, KOLLAM). BY ADV. SRI.G.SUDHEER RESPONDENT(S): ----------------------------- 1. VICTORY PRESS LTD REPRESENTED BY IT'S SALES ASSISTANT, T.N.LAZAR S/O MATHEW, THOLATH HOUSE, KURUKKANPARA, KUNNAMKULAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 3183 of 2010 --------------------------------------------- Dated this the 7th day of February, 2011 O R D E R The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') approached this Court by preferring the above revision petition challenging his conviction and sentence, imposed as per judgments of the trial court as well as the lower appellate court. 2. The case of the first respondent/complainant against the revision petitioner/accused is that the accused purchased goods from the company of the complainant on credit basis and towards the discharge of the liability due to the complainant, the accused issued a cheque dated 18.6.2006 for a sum of Rs.3 lakhs which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. Crl.R.PNO.3183 of 2010 :-2-: With the said allegation, the complainant approached the Judicial First Class Magistrate Court, Kunnamkulam whereupon C.C.No.75 of 2007 was instituted taking cognizance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P11 and the oral evidence of himself as PW1. No evidence either oral or documentary was adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus, accordingly, the court held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court imposed a sentence to pay fine of Crl.R.PNO.3183 of 2010 :-3-: Rs.3,00,000/- and the default sentence is fixed as three months simple imprisonment. It was also ordered that on realisation of the fine amount, the entire amount shall be given to the complainant as compensation under Section 357(1)of Cr.P.C. 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, as per judgment dated 30.7.2010 in Crl.A.No. 683 of 2009, the court of the Sessions Judge, Thrissur dismissed the appeal confirming the conviction and sentence imposed by the trial court. The present revision petition is preferred against the above order of conviction and sentence. 4. I have heard learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. Learned counsel for the revision petitioner vehemently submitted that the findings of the courts below are absurd and illegal since the complainant has not Crl.R.PNO.3183 of 2010 :-4-: established the allegation against the revision petitioner. Learned counsel submitted that PW1, who was examined for and on behalf of the complainant, has no direct knowledge regarding the transaction and therefore, there is no reliable evidence in terms of the allegations of the complainant. It is also the submission of the learned counsel that in the absence of any evidence in support of the claim of the complainant, it cannot be said that the complainant has established its case and the complainant is not entitled to get a presumption under Section 139 of the N.I.Act. 6. I am unable to sustain the above contention. Admittedly, the revision petitioner/accused had transaction with the complainant/company and towards the discharge of the liability arising out of such transaction, the revision petitioner entrusted blank signed cheques with the company. According to the complainant, on the basis of the documentary evidence produced by the complainant, Crl.R.PNO.3183 of 2010 :-5-: especially as per Ext.P11 copy of the minutes, the revision petitioner/accused is liable to pay the amount covered by the cheque and towards the discharge of the said liability, the accused issued the cheque in question. Learned counsel appearing for the revision petitioner read over to me the contents of the affidavit filed in lieu of chief examination and also his cross-examination. From the above deposition, it appears to me that the trial court as well as the appellate court have rightly held that the cheque in question was issued towards the discharge of the liability out of the transaction alleged by the complainant in Ext.P4 notice as well as the complaint. When the revision petitioner admits that there were transactions between the revision petitioner and the complainant, it is for him to show that no liability is due to the complainant and he had discharged all the liabilities. But, in the present case, though on behalf of the complainant, PW1 has deposed regarding the transaction and liability and the complainant Crl.R.PNO.3183 of 2010 :-6-: has produced Ext.P11 series of copies of bills, no evidence is adduced from the side of the defence to establish the case of the defence to rebut the presumption which is otherwise available in favour of the complainant. Therefore, I find no reason to interfere with the concurrent finding of the courts below. In the result, this Criminal Revision Petition fails and accordingly, the same is dismissed. V.K.Mohanan, Judge. MBS/ Crl.R.PNO.3183 of 2010 :-7-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T Crl.R.PNO.3183 of 2010 :-8-: DATED: -2-2010 Crl.R.PNO.3183 of 2010 :-9-: