IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 Crl.Rev.Pet.No. 2024 of 2011() ------------------------------ CRA.799/2008 of ADDL. SESSIONS COURT, VADAKARA ST.1758/2005 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------- SANTHOSH KUMAR, S/O.GOPALAN, AGED 44 YEARS, KAMPRATH HOUSE, P.O.CHIRAKKAL, KANNUR DISTRICT. BY ADV. SRI.K.RAJESH SUKUMARAN RESPONDENT(S)/ RESPONDENTS/COMPLAINANT: -------------------------------------- 1. T.JAYADASAN, S/O.T.NARAYANAN, AMOOLYA HOUSE, AGED 61 YEARS, PUTHUPPANAM P.O., MANAGING PARTNER, M/S.AQUILA FINANCE PVT.LTD., VATAKARA, REP. BY POWER OF ATTORNEY HOLDER, K.T.RAMESAN, S/O.KRISHNAN, AGED 35 YEARS, KADAYAM THOTTATHIL(H) VADAKARA AMSOM DESOM. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.REKHA C. NAIR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.2024 OF 2011 ----------------------------------- Dated this the 22nd day of August, 2011 O R D E R Revision is filed by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', concurrently, by the two inferior courts. Negativing the plea of not guilty canvassed by the accused, on his conviction, the learned Magistrate sentenced him to undergo simple imprisonment for three months and to pay compensation of Rs.73,121/- to the complainant with default term of further imprisonment for three months. Confirming the conviction, the learned Sessions Judge modified the sentence to one of fine directing payment of a sum of Rs.75,000/- as fine, with default term of imprisonment for three months, turning down his appeal. Feeling aggrieved, the accused has preferred this revision. 2. The learned counsel for the revision petitioner/accused assailed the conviction rendered concurrently against him by the Crl.R.P.No.2024/2011 2 two courts solely on the basis of Ext.D1, an overdue list issued by the complainant bank, which, according to the counsel, was not properly appreciated and taken note of by both the courts below. Cheque involved in the case is dated 25.09.2001. Ext.D1 list produced by the accused, which had been obtained from the complainant company showed that on the above date the outstanding liability was only about Rs.36,000/-. Excess amount shown in the instrument (cheque) clearly demonstrate that there was merit in the contention of the accused that a blank signed cheque with signature alone had been obtained when the loan was provided to him, submits the case. The defence canvassed based on Ext.D1, was brushed aside by both the courts, is the submission of the counsel to contend that the conviction entered against the accused suffers from serious infirmity. 3. Going through the judgments rendered by both the courts, it is seen, there is no dispute that the accused had availed a loan of Rs.60,000/- from the complainant company agreeing to repay it at the rate of Rs.3,350/- each in 24 monthly instalments, Crl.R.P.No.2024/2011 3 and, thus, discharge the liability under the loan transaction. Both the courts have found, more particularly, the learned Sessions Judge, after examining the materials that the accused had only paid three instalments and the rest of the amount covered by the loan was in arrears. The judgments would also show that though the complaint was filed in 2001, on its dishonour and issue of the statutory notice, it could not be proceeded with much later since the accused had remained at large. After including the case in the long pending cases, it seems, it was again taken up after his presence was secured, most probably, after taking coercive steps by the court. Banking upon Ext.D1, which appears to have been obtained by the accused in 2004, which is stated to be a computer printed statement from the company, the defence was set up that the amount due as on the date shown in the cheque, the liability which the accused had, over the loan transaction, was much less. The fact remains that the amount paid towards discharge of the loan availed was only at the rate of Rs.3,350/- each. The learned Sessions Judge, after meticulously considering the materials Crl.R.P.No.2024/2011 4 tendered, found the explanation offered by the representative of the company, examined as PW1, with respect to the entries shown in Ext.D1 reliable and acceptable. After going through the discussion over the challenge raised by the accused on the basis of Ext.D1, as reflected in the judgment of the learned Sessions Judge, I find no reason to hold that it suffers from any infirmity. The liability of the accused was much more than what is stated in Ext.D1 statement on the relevant date, stands undisputed. When such be the case, the defence raised, pursued and persisted with in revision, to assail the conviction cannot be given any merit. Conviction of the accused, it is seen, was based on the legal evidence tendered, over which, both courts were fully satisfied to enter a finding of guilty against the accused. Statutory notice issued to the accused remained not responded with any payment or any reply is also a circumstance to be looked into to consider the merit of the belated defence canvassed in trial based on Ext.D1. I do not find any merit in the challenge so raised to assail the conviction rendered against the accused. Crl.R.P.No.2024/2011 5 4. So far as the sentence imposed also, it is seen, the learned Sessions Judge has vacated the substantive term of imprisonment, and converted the compensation awarded to one of fine, but, enhancing it to Rs.75,000/- with default term of three months simple imprisonment. No interference with the sentence is also called for. 5. At this stage, the learned counsel for the petitioner requested for some time to pay the fine fixed, to avoid the default term. Prosecution has commenced over a cheque issued as early in 2001, and it is continued even now, is a matter to be considered in examining the merit of the request for further time. Part payment of Rs.25,000/- has already been made is also canvassed by the counsel to seek further time, to pay the balance amount due as fine. I find this is not a fit case where further extension of time can be granted to the accused for payment of the fine. Still, having regard to the submissions made by the counsel, one month's time can be granted for remitting the fine. Crl.R.P.No.2024/2011 6 6. The learned Magistrate is directed to keep in abeyance execution of default term of imprisonment imposed for one month from today, to enable the accused to pay the amount due as fine and, thus, avoid his imprisonment. In default of payment of tine, the learned Magistrate shall take steps forthwith to execute the sentence. Revision is dismissed, subject to the directions as above. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.2024/2011 7