IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 Crl.Rev.Pet.No. 1761 of 2010() ------------------------------ CRA.356/2008 of ADDL.SESSIONS COURT, KOTTAYAM ST.70/2007 of JUDL. MAGISTRATE OF FIRST CLASS - II, CHENGANACHERRY .................... REVISION ETITIONER/APPELLANT/ACCUSED :- ------------------------------------------------------------------- SIBI JOSEPH, PROPRIETOR, PUTHENPARAMBIL TOURIST SERVICE, PUTHENPARAMBIL HOUSE, VADAKKEKARA, VEROOR P.O., CHANGANACHERRY. BY ADV. SMT.RUBY K.JOSE RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE :- -------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.SIVADAS, KURIKKATTIL HOUSE, RUBY NAGAR P.O.CHANGANACHERRY. R2 BY ADV. MR.V.PHILIP MATHEW PUBLIC PROSECUTOR MR.M.R.VENUGOPAL THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: jvt V.K.MOHANAN, J. ----------------------------- Crl.R.P.No.1761 of 2010 --------------------------------- Dated this the 15th day of June 2010 O R D E R This revision petition is preferred by the accused in a prosecution for the offence punishable under Sec.138 of the Negotiable Instruments Act. 2. The cheque in question covers an amount of Rs.1,25,000/-. After considering the materials and evidence on record and the plea set up by the defence, the trial court as well as the lower appellate court found that the complainant has established his case and also found that the accused is failed to rebut the presumption. Thus the trial court had convicted the revision petitioner and sentenced him to undergo simple imprisonment for three months and also directed to pay a fine of Rs.1,25,000/-, the Crl.R.P.No.1761 of 2010 : 2 : default sentence is fixed as one month simple imprisonment. It is also ordered that if the fine amount is realized, the same shall be given to the complainant under Sec.357(1) of Cr.P.C. In appeal, by judgment dated 13.3.2009 in Crl.A.No.356/2008, the court of Sessions, Kottayam, while confirming the conviction, reduced the sentence of imprisonment till rising of the court and maintained the sentence of fine. It is the above findings, conviction and sentence are challenged in this revision petition. 3. The learned counsel for the revision petitioner relying on Ext.D1 document submitted that, the accused has discharged his duty in rebutting the presumption. The trial court after considering Ext.D1 has held that the complainant has not admitted the execution of Ext.D1 document and also found that the signature contained in Ext.D1 is not tallying with the signature of the complainant in other documents. The trial court has further found that Crl.R.P.No.1761 of 2010 : 3 : though the accused has got a case that, there was property transaction between the accused and his brother Biju Joseph, the said Biju Joseph was not examined to substantiate the case of the defence. It is also relevant to note that when PW1 was examined, the suggestion put to him was that, the cheque in question was one which obtained from the accused as a security for the transaction between the complainant and Biju Joseph. Thus, it is clear that the defence has no consistent case as to how the cheque in question reached in the hands of the complainant. Whereas the PW1 has categorically stated that the accused who was conducting tourist taxi service, approached the complainant and received the amount as loan on condition that it will be returned within two months. The said deposition of PW1 is remained intact. On the basis of such facts and circumstances of the case, the trial court has found against the revision petitioner and accordingly convicted him under Sec.138 of the N.I.Act. I find no Crl.R.P.No.1761 of 2010 : 4 : reason to interfere with the concurrent findings of the trial court as well as the lower appellate court. In the result, there is no merit in the revision petition and accordingly the same is dismissed. V.K.MOHANAN, JUDGE. Jvt