IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 Crl.Rev.Pet.No. 1940 of 2010() ------------------------------ CRA.750/2008 of ADDL.SESSIONS COURT, KOZHIKODE ST.1305/2007 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE. .................... REVISION PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------------------------------- SHEENA.M.P., W/O.SANTHOSH KUMAR, AGED 38 YEARS, UPASANA, POTTAM PARAMBU, KOTTITHAZHAM, NEELLIKODE P.O., KOZHIKODE-6. BY ADVS. SRI.M.M.SHERIFF, SRI.SASIDHARAN KOLATHAYI. RESPONDENT(S): COMPLAINANTS- STATE: ----------------------------------------------------------------- 1. AJITHA KUMARI.N., W/O.PADMANABHAN, AGED 40 YEARS, "ANGLES GARDEN", THEKKEPPATTIL PARAMBA, GOVINDAPURAM P.O., KOZHIKODE. 2. STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.1940 of 2010 ------------------------------- Dated this the 23rd day of July, 2010. O R D E R This revision petition is preferred by an accused who stand convicted and sentenced for an offence punishable u/s.138 of Negotiable Instruments Act. 2. The case of the complainant is that, the complainant and the accused are known to each other for more than 4 years and the accused borrowed a sum of Rs.3 lakhs from the complainant for the purpose of maintenance of the house of the accused and towards the discharge of the said liability, the accused issued a cheque dated 12.9.2007 for an amount of Rs.3 lakhs and when the cheque presented for encashment it was dishonoured for want of sufficient fund in the account maintained by the accused and consequently a statutory notice was caused to send to the accused and though she received the same, the amount covered by the dishonoured cheque was paid and therefore according to the complainant the accused has committed the offence punishable u/s.138 of NI Act. With the Crl.R.P.No.1940 of 2010 2 said allegation, the complainant approached the Spcl. Judicial First Class Magistrate Court (Marad cases), Kozhikode, by filing a compliant, where upon cognizance was taken u/s.138 of NI Act and instituted S.T.No.1305/07. During the trial of the case the complainant herself mounted to the box and gave evidence as PW1. Beside the above evidence she had also produced Exts.P1 to P4 documents. From the side of the defence, the accused herself was mounted to the box and she deposed as DW1 and produced Ext.D1 document. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question issued by the revision petitioner/accused was for the purpose of discharging her debt due to the complainant. Thus, accordingly the court has held that, the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the revision petitioner is sentenced to undergo simple imprisonment for 3 months and to pay a sum of Rs.3 lakhs as compensation to the complainant Crl.R.P.No.1940 of 2010 3 u/s.357(3) of Cr.P.C. and in default to undergo simple imprisonment for one month. 3. Though an appeal was filed, by judgment dated 4.1.2010, in Crl.A.No.750/08, the Court of Session, Kozhikode Division, the appeal is allowed only in part, confirming the conviction. The sentence awarded by the trial court was modified and reduced to till the rising of the court and it is also directed to pay a fine of Rs.3 lakhs and on realisation of the same, the entire amount ordered to pay to the complainant u/s.357(1) of Cr.P.C. and the default sentence is fixed as 3 months simple imprisonment. It is the above judgments and order of conviction and sentence challenged in this revision petition. 4. Though this matter was heard elaborately, the learned counsel miserably failed to point out any circumstances either legal or factual to interfere with the concurrent findings of the trial court as well as the lower appellate court. In the above revision petition, the petitioner has filed Crl.M.A.6163/10, with a prayer to accept Annexure-I document, which would show Crl.R.P.No.1940 of 2010 4 that the revision petitioner was working as Community Organizer (honorarium) in Kudumba Sree mission, a project of corporation of Calicut and her monthly honorarium is only Rs.1,500/-. It is also the contention of the learned counsel that though the revision petitioner is a Kudumba Sree Organizer, she was getting only Rs.1,500/- per month. But the trial court in its judgment has held that the revision petitioner is working as a CEO. So according to the learned counsel, the said observation or finding of the trial court is not correct. 5. The above submission and the document produced by the learned counsel is nothing to do with the findings of the courts below, upon the issue involved in the present case. Going by the judgments of the courts below and the materials referred to by the courts below, which manifest from their judgments, it can be seen that the only defence taken by the accused is to the effect that, she had availed a sum of Rs.15,000/- from the complainant and towards the said liability she issued a signed blank cheque. Even though such a plea was taken during the trial, the same was not established so far. Crl.R.P.No.1940 of 2010 5 In this juncture it is relevant to note that, before filing the complaint, the complainant had caused to sent a lawyer notice, informing the dishonour of the cheque and demanding the cheque amount but the accused did not care to send any reply. When the accused was examined u/s.313, she had stated that the complainant has no capacity to part-with such a huge amount and therefore the transaction, claimed by the complainant is false and baseless. In this case, it is relevant to note that when PW1 was examined, she had deposed her source regarding the amount and she had specifically stated that she had received a sum of Rs.2,30,000/- on selling her right in the family property. Apart from that, it is also deposed by her that she had garment business and her husband is a retired govt. employee. Thus she had also income from the business and thus she gave the amount so raised by her. 6. Re-appreciating the evidence on record, the lower appellate court also observed that PW1 has sufficient financial capacity to advance the amount to the accused. The appellate court also observed that the evidence of DW1, namely the Crl.R.P.No.1940 of 2010 6 accused/revision petitioner would show that she is not aware as to whether PW1 was having a very good business in textile or she is not aware as to whether PW1 was getting an income of Rs.15,000/- per month from her business. It is also observed that, “Admittedly, the husband of PW1 is a retired govt. servant. Having meticulously gone through the evidence of PW1 in the light of the evidence of DW1 and Ext.D1, the lower appellate court has opined that, PW1 is having sufficient capacity to advance the amount to the accused.” The lower appellate court has further observed that when PW1 was cross examined, no specific question was put to PW1 challenging her capacity to advance the amount to the accused. The lower appellate court also held that DW1, the accused, did not stated that PW1 had no capacity to advance money to the accused, even though DW1 stated with the aid of Ext.D1 that, an amount of Rs.3 lakhs alone was received as consideration in the sale of her family property. So regarding the arguments advanced by the learned counsel for the revision petitioner, about the financial capacity of the complainant to gave an amount of Rs.3 Crl.R.P.No.1940 of 2010 7 lakhs to the accused fails. 7. When the accused admitted that she had transaction with the complainant and she had issued the cheque in question, then the burden of the accused is heavily on her to establish that the cheque in question was issued connected with the transaction, which she claimed. But except the bare allegation or claim, no evidence is adduced by the defence. Ofcourse in every cases the defence is not expected to disprove the case of the complainant and need not adduce positive evidence. As rightly observed by the lower appellate court on the strength of the decision of the Apex court in, Krishna Janardhan Bhat Vs. Dattatraya Hegde reported in 2008(1) KLT 425 (SC), the accused can make use of the defence or materials or evidence relied on by the complainant or prosecution, to develop or to establish the plea of the defence so as to rebut the presumption. But in the present case, no such effective attempt was made and the defence miserably failed to rebut the presumption. All these facts are properly appreciated by the courts below and the learned counsel for Crl.R.P.No.1940 of 2010 8 the revision petitioner has no case that, any of the courts below failed to consider any materials or evidence which are in favour of the accused or over looked such a materials or evidence. In the result, in the light of the above facts and discussions, I find no merit in the revision petition and accordingly the same is dismissed. V.K.MOHANAN, Judge. ami/