IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 Crl.Rev.Pet.No. 1559 of 2010() ------------------------------ CRA.200/2009 of IST ADDL.SESSIONS COURT, KOZHIKODE ST.1934/2006 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE .................... REVN. PETITIONER: APPELLANT IN CRL.APPEAL/ACCUSED IN S.T. ------------------------------------------------------------ SURENDRAN, AGED 43 YEARS, S/O.SUKUMARAN, MANGATT AGENCIES, C/O.MANGATT TILE DEPOT, MADURAMMADOM BUILDING, KUREEKKADU.P.O, THIRUVANKULAM, ERNAKULAM DISTRICT. BY ADV. SRI.LITTO VARGHESE PALATHINKAL SRI.PRAMOD KUMAR SMT.P.K.GIGIMOLE RESPONDENT: RESPONDENT IN CRL.APPEAL/COMPLAINANT IN S.T. ----------------------------------------------------------- 1. ASHIQUE EXPORTS PVT.LTD., 13/750, ANNIE HALL CROSS ROAD, CALICUT, REPRESENTED BY MANAGER AND THE POWER OF ATTORNEY HOLDER A.G.MUHAMMED RAFEEQUE, AGED 48 YEARS, S/O.LATE G.M.ABDUL GAFOOR, M/S.ASHIQUE EXPORTS PVT. TLD., CALICUT. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. R2 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1559 & 1566 OF 2010 ---------------------------------------- Dated 19th Day of May, 2010 ORDER These two Crl.Revision Petitions arose out of a common judgment dated 2.3.2009 of the Judicial First Class Magistrate Court-I, Kozhikode in S.T.No.1934 of 2006 and 1993/2006. As the parties are same in both these Crl.Revision Petitions, and the contentions are identical, the same are heard together and being disposed of by this common order. 2. The first respondent in both these revisions is the complainant, which is a private limited company engaged in the business of Tiles. The revision petitioner/accused is the Proprietor of Mangat Agencies who manages the business of Mangat Tile Depot. According to the complainant, the accused purchased goods worth for Rs.12 lakhs from the complainant and issued post dated cheques which are marked as Exts.P3, P4, P13 and P14. Exts.P3 and P4 are for an amount of Rs.50,000/- each and Exts.P13 and 14 are for an amount of Rs.one lakh each. According to the complainant, when the above cheques were presented for encashment, Exts.P3 and P4 were dishonoured due to insufficiency of funds in the account CRL.R.P.1559/10 & 1566/10 -:2:- maintained by the accused. Exts.P13 and 14 were dishnoured as the account was closed by the accused. Thus, the complainant on receipt of the dishonour memo, caused to issue lawyer notice informing the accused regarding the dishonour of cheques and demanding him to pay the amount covered by the cheques. As there was no payment, the complainant approached the trial court after complying with the statutory formalities whereupon S.T.Nos.1934/2006 and 1993/2006 were instituted. During the course of the trial, from the side of the complainant, PWs 1 and 2 were examined and Exts.P1 to P22 were marked. From the side of the defence, DW1 was examined and Ext.D1 was marked. On the basis of the above evidence and materials and after considering the rival pleadings, the trial court has found that the complainant has established his case and accordingly found that the revision petitioner-accused is guilty of the offence charged against him. Consequently, in both the cases, the trial court imposed only sentence of imprisonment till the rising of the court and in S.T.No.1934/2006, he was directed to pay a sum of Rs.one lakh to the complainant as compensation under section 357(3) Cr.P.C and in default, to undergo simple imprisonment for two months. Whereas in S.T.No.1993/2006, he was directed to undergo simple CRL.R.P.1559/10 & 1566/10 -:3:- imprisonment till rising of the court and to pay a sum of Rs.2 lakhs to the complainant as compensation under section 357(3) Cr.P.C and in default to undergo simple imprisonment for three months. The above conviction and sentences and order of compensation though challenged by the revision petitioner-accused by preferring Crl.A. Nos.200 and 201 of 2009, both the appeals were dismissed by the lower appellate court by a common judgment dated 30.1.2010 confirming the conviction and sentence imposed against the revision petitioner by the trial court. It is the above judgments, conviction and sentence are challenged in these Crl.R.Ps. 3. I have heard the learned counsel appearing for the revision petitioner in both the cases. 4. It is submitted that the complainant has not produced acceptable and admissible evidence regarding the transaction. The amount shown in the cheques in question are exorbitant without considering the amount already paid by the revision petitioner to the complainant. The learned counsel submitted that both the courts below failed to consider the above aspect. It is further submitted that the revision petitioner-accused could not produce evidence regarding the payments made by him to the complainant and therefore, an opportunity may be given to the CRL.R.P.1559/10 & 1566/10 -:4:- revision petitioner to substantiate his claim regarding the repayment of the amount to the complainant. 5. I have carefully gone through the judgments of the trial court as well as the lower appellate court. The trial court as well as the lower appellate court has positively held that the complainant has established its case beyond reasonable doubt by adducing oral evidence as well as contemporary documentary evidence. In this juncture it is to be noted that the revision petitioner/accused had filed a statement by which he had admitted the transaction. The only contention raised in the said statement is to the effect that the revision petitioner/accused is not liable to pay that much amount shown in the cheques in question since he had already paid the amount. When the revision petitioner was examined as DW1, he had admitted the transaction and also admitted the signature that contained in the cheques in question and the execution and issuance of the same. When the revision petitioner- accused admitted the transaction, and the execution and issuance of the cheques, it is heavily upon him to substantiate his case regarding the repayment made by him towards the liability arose out of the transaction admitted by him. In this juncture it is relevant to note that before filing the complaint, the complainant had CRL.R.P.1559/10 & 1566/10 -:5:- caused to send lawyer notice to the accused demanding the cheque amount. So, the accused was fully aware of the contention of the complainant and if he had a case to the effect that no liability was existing or he had cleared off the entire debt, he should have adduced evidence to that effect. The trial court has specifically found that the accused has not given the details of the alleged payments made by him. The trial court has also found that at the same time, DW1 has deposed that he is having accounts to prove his liability towards the complainant. But those accounts were also not produced. Without making any attempt to produce any documentary evidence or any acceptable evidence, the attempt made by the accused was to the effect that he had cited employees of the complainant as witnesses and no documents were produced. Therefore, the finding arrived on by the courts below that the accused has failed to substantiate his defence regarding the repayment of the liability, is absolutely correct. Therefore, I find no reason to interfere with the concurrent finding of the trial court as well as the lower appellate court. Accordingly, the above Crl.R.Ps are dismissed. 6. The learned counsel for the revision petitioner submitted that a breathing time may be granted to pay the amount of CRL.R.P.1559/10 & 1566/10 -:6:- compensation and to receive the sentence. According to me, the said submission can be considered in favour of the revision petitioner. But it is also relevant to note that the cheques are pertained to the year 2006 and four years are over. It is also relevant to note that the substantive sentence awarded against the revision petitioner is only imprisonment till the rising of the court. Having regard to the above facts and circumstances, these Crl.Revision Petitions are dismissed directing the revision petitioner to appear before the trial court on or before 19.6.2010 to receive the sentence in both the cases which will run concurrently, and to make the payment of compensation awarded by the trial court and confirmed by the lower appellate court. If there is any failure on the part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive step to procure the presence of revision petitioner and to execute the sentence and to realise the compensation amount. V.K.MOHANAN, JUDGE kvm/- CRL.R.P.1559/10 & 1566/10 -:7:- kvm/- V.K.MOHANAN, J. O.P.No. JUDGMENT CRL.R.P.1559/10 & 1566/10 -:8:- Dated:..