IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 21ST FEBRUARY 2011 / 2ND PHALGUNA 1932 Crl.Rev.Pet.No. 526 of 2011() ----------------------------------------- CRA.745/2009 of ADDL.SESSIONS COURT-III, KOZHIKODE CC.1018/1998 of JUDICIAL MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------------- P.BALASUBRAMANYAN, DIRECTOR, METRO HABITAT PRIVATE LTD., RESIDING AT 84-F, 4TH CROSS, NEW TIPPASANDRA, HAL III STAGE, BANGALORE-560 038. BY ADV. SMT.K.V.RESHMI RESPONDENT(S): STATE & COMPLAINANT --------------------------------------------------------------- 1. R.JAYANTHI MENON, D/O.U.G.MENON, C/O.BABU, ETISALAT, SWITCHING PROJECTS (H.O), P.B.NO.1150, DUBAI, U.A.E. 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SRI.V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 526 of 2011 --------------------------------------------- Dated this the 21st 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. Learned counsel for the revision petitioner vehemently submitted that initially, by judgment dated 17.2.2001 in C.C.No.1018 of 1998, the court of the Judicial First Class Magistrate Court-I, Kozhikode acquitted the revision petitioner/accused under Section 255(1) of Cr.P.C. and against the said acquittal, the first respondent/complainant preferred Crl.A.No.471 of 2001 and by judgment dated 23.5.2008, this Court has categorically found that the revision petitioner/accused is guilty under Section 138 of the N.I.Act and recording the Crl.R.PNO. 526 of 2011 :-2-: above conviction, the matter had been remitted back to the trial court for imposing proper sentence. Thereafter, the revision petitioner/accused preferred Crl.M.P.No.1286 of 2009 under Section 311 of the Cr.P.C. for the purpose of adducing further evidence. But, the learned Magistrate dismissed that petition against which the revision petitioner approached this Court by filing Crl.R.P.No.1485 of 2009 and by judgment dated 27.7.2009, the same was dismissed stating that this Court, by the earlier judgment in appeal, convicted the revision petitioner/accused and the same became final and the remand was for the limited purpose of imposing punishment after hearing the parties and therefore, the relief sought for by the accused through such petition in the trial court is not entertainable . Thus, the learned Magistrate, by judgment dated 4.11.2009 in C.C.No.1018 of 1998, imposed the sentence against the revision petitioner till rising of the court and also sentenced him to pay fine of Rs.5,05,600/-. It is also ordered that in Crl.R.PNO. 526 of 2011 :-3-: default of payment of fine, the accused has to undergo simple imprisonment for a period of three months. It is further order that if the fine amount is realised, the entire amount shall be given to the complainant under Section 357 (1)(b) of the Cr.P.C. Challenging the above sentence, though the revision petitioner had preferred Crl.A.No.745 of 2009, by judgment dated 17.1.2011, the Court of Sessions, Kozhikode dismissed the appeal confirming the conviction and sentence imposed by the learned Magistrate. It is the above judgments of the courts below and the conviction and sentence imposed against the revision petitioner, the present revision petition is preferred. 3. I have heard Smt.Rashmi.K.V., learnd counsel appearing for the revision petitioner. The learned counsel submitted that on the grounds taken by the revision petitioner regarding the authority of the complainant to prefer such a complaint and on the ground that as the company was not made a party in the case, the complaint Crl.R.PNO. 526 of 2011 :-4-: was not sustainable and maintainable, the learned Magistrate originally acquitted the revision petitioner/ accused and thus, according to the learned counsel, the petitioner has no other grounds to be urged in this Crl.R.P. for an acquittal and also against the sentence imposed against him. 4. I have carefully considered the arguments advanced by the learned counsel and I have gone through the judgments of the court below. 5. In fact, the challenge in this revision petition is against the conviction and sentence imposed against the revision petitioner/accused and according to me, the challenge against conviction is not sustainable since any attempt to examine the correctness of the conviction recorded against the revision petitioner will amount to review which is impermissible in law since this Court by judgment dated 23.5.2008 in Crl.A.No.471 of 2001 has specifically found on appeal preferred by the complainant Crl.R.PNO. 526 of 2011 :-5-: against the order of acquittal recorded by the Magistrate that the revision petition is guilty under Section 138 of the N.I.Act. All the grounds now urged by the learned counsel were specifically referred to and considered by the learned Judge of this Court while disposing of the appeal. 6. Though the learned counsel for the revision petitioner submitted that the revision petitioner has not got any opportunity to defend the appeal against the order of acquittal, there is nothing on record to show that the judgment dated 23.5.2008 was issued without service of notice on the revision petitioner. However, as a matter of fact, the revision petitioner had attended the proceedings in the trial court in pursuance of the remand of the matter, and thus, the revision petitioner was aware of the judgment of this Court when he received notice from the trial court and when he appeared before the said court. But, at that time, no effective and proper steps were taken by the revision petitioner to challenge the judgment dated Crl.R.PNO. 526 of 2011 :-6-: 23.5.2008 in Crl.A.No.471 of 2001 of this Court and thus, the above judgment became final. It is pertinent to note that against the dismissal of C.M.P.No.1286 of 2009 which is a petition filed under Section 311 of Cr.P.C., the petitioner had approached this Court by filing Crl.R.P.No.1485 of 2009 and by judgment dated 27.7.2009 in that revision petition, another learned Judge of this Court has also held that the judgment in appeal at the instance of the complainant and against the revision petitioner became final and after referring to several findings of this Court (especially paragraph 13) in Crl.A.No.471 of 2001, in paragraph 5 of the judgment of this Court in the above Crl.R.P., it is held as “after carefully considering and evaluating the entire materials available on record, this Court was satisfied that the learned Magistrate was not justified in holding that the petitioner was not guilty and therefore, the finding of not guilty is set aside”. Under the above factual and procedural premises, this Court will not be justified in interfering with the order of Crl.R.PNO. 526 of 2011 :-7-: conviction in this Crl.R.P. 7. Regarding the sentence, it is to be noted that the learned Magistrate has imposed only the sentence of one day imprisonment till the rising of the court and the other part of the sentence is to pay a fine of Rs.5,05,600/-, an amount equal to the cheque amount. The above judgment of the trial court was passed on 4.11.2009 and the appellate court confirmed the same by judgment dated 17.1.2011. The cheque in question is dated 10.8.1998. Having regard to the above facts and circumstances of the case, I find no reason to interfere with the sentence also. Thus, there is no merit in the above Crl.R.P. and accordingly, the same is dismissed. V.K.Mohanan, Judge. MBS/ Crl.R.PNO. 526 of 2011 :-8-: V.K.MOHANAN, J. -------------------------------------------- Crl.R.PNO. 526 of 2011 :-9-: Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T DATED: -2-2010 Crl.R.PNO. 526 of 2011 :-10-: