IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH DAY OF DECEMBER 2011/25TH AGRAHAYANA 1933 CRRP.No. 2978 of 2011 ------------------------------ CRA.55/2011 of ADDL. DIST. COURT (ADHOC)III, PATHANAMTHITTA ST.1198/2008 of J.M.F.C.-II,PATHANAMTHITTA ..................... REVISION PETITIONER(S)/APPELLANT/ACCUSED: SHIHABUDEEN, S/O. MUHAMMED RAWTHER, KAIMALAZHIKATHU HOUSE, MANNADI P.O., ADOOR. BY ADV.SRI.M.R.JAYAPRASAD RESPONDENT(S)/STATE AND COMPLAINANT: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM, KOCHI-31. 2. MUTHOOT LEASING AND FINANCE LTD., REGISTERED OFFICE, MUTHOOT CHAMBERS BANERJY ROAD, ERNAKULAM, KOCHI-18. R1 BY PUBLIC PROSECUTOR SMT. SEENA R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VPV S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2978 OF 2011 ----------------------------------------- Dated this the 16th day of December 2011 ORDER Challenge in the revision is against the conviction of the accused for the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently by the two courts below. Sentence imposed against the accused is imprisonment till the rising of the court with direction to pay the amount covered by the cheque, a sum of `.29,900/- as compensation to the complainant, with default term of simple imprisonment for three months. 2. Ext.P2 cheque for a sum of `.29,900/- was issued by the accused towards the discharge of a legally enforceable debt due from him to the complainant, a financing company, was its case. That cheque, on presentation, was dishonoured due to insufficiency of funds and, thereupon, after issuing a statutory notice, which was acknowledged, but, not responded with reply or payment, complaint was filed to prosecute the accused for the offence under Section 138 of the NI Act. The defence raised by the accused to assail his prosecution was that the cheque was issued in a transaction in which on the hypothecation of a vehicle, financial assistance was provided Crl.R.P No.2978 OF 2011 2 by the complainant company, and later the vehicle had been repossessed by the company and sold in auction. That defence, which was attempted to be canvassed through suggestive questions, that alone, put to the witness examined on behalf of the complainant, was found nonappealing and nonacceptable to the magistrate, who, on the materials tendered, accepting the case of the complainant, entered a finding of guilt against him to found the conviction for the offence under Section 138 of the NI Act. The learned sessions judge, after reappraisal of the evidence, has affirmed the finding entered by the magistrate turning down the appeal of the accused. Before me, the learned counsel for the accused, reiterated the challenges canvassed before the courts below to contend that the conviction rendered against the accused, if upheld, would result in miscarriage of justice. Within the narrow compus covered by the revisional jurisdiction, where a finding of fact entered by the inferior court is not liable to be interfered with unless it is shown to be perverse and unsustainable under law, I find that the challenges canvassed for to assail the finding concurrently rendered by the courts below cannot be given any value. 3. Going through the judgments rendered by the magistrate and also the sessions judge, I find, the materials on record have been scrupulously analysed to reach the conclusion that the accused is guilty Crl.R.P No.2978 OF 2011 3 of the offence imputed. So far as an offence under Section 138 of the NI Act, if we go by the provisions thereof, where a cheque issued by the drawer of that instrument from an account maintained by him in a bank to another, towards discharge of a debt or liability, whole or part, its dishonour due to insufficiency of funds in his account or it exceeds the arrangement made with the bank, such drawer is culpable of the offence. True, to enable the payee or the holder in due course to file a complaint on dishonour of such instrument, certain rigours are placed by the provisions covered by the NI Act directing issue of a notice, filing of a complaint etc. within the time prescribed. Cognizance of the offence on such complaint can be taken only on satisfaction of the conditions imposed against the payee or the holder in due course as indicated above does not lead to any conclusion that the offence has not been committed by the drawer of the instrument, which on presentation has been dishonoured, of course, for the two reasons indicated above. When that be so, a defence was available to him as contended by the counsel, by itself would no way relieve him from the offence already committed. In the present case, as already indicated, whatever defence that was set up remain only as suggestive questions put to the witness of the complaint. Vague hunches and suggestions without anything more have no place in a criminal trial. Challenge against the conviction Crl.R.P No.2978 OF 2011 4 of the accused must fail. 4. Affirming the conviction and sentence, the accused is directed to appear before the magistrate on 30-01-2012 to serve out the imprisonment till the rising of the court and to report the payment of compensation. The magistrate is directed to keep in abeyance the execution of the sentence against the accused till the date fixed as above for his appearance. In default of his appearance and nonpayment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge