IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 Crl.Rev.Pet.No. 2082 of 2011() ------------------------------------------- CRA.NO.138/2010 OF ADDL.DISTRICT & SESSIONS COURT,(ADHOC-III), N. PARAVUR. S.T.NO.2746/2005 JUDICIAL FIRST CLASS MAGISTRATE COURT-III, ALUVA -------------------------------------------- REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------------------------- P.A.APPUKUTTAN, AGED 66 YEARS, VATTAPARAMBIL HOUSE, AZHAKAM P.O., ANGAMALY, ERNAKULAM DISTRICT. BY ADV. SRI.E.C.POULOSE SRI.BOBBY RAPHEAL RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE ------------------------------------------------------------------------------------------- 1. K.G.GOVINDA PILLAI, SREEBHADRA HOUSE, KONOOR NALUKETTU P.O., KORATTY, CHALAKUDY, THRISSUR DISTRICT, PIN- 680 308. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. R2 BY PUBLIC PROSECUTOR SMT.SEENA.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/11/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2082 OF 2011 ----------------------------------------- Dated this the 24th day of November 2011 ORDER Challenge in the revision is against the conviction of the accused in a cheque case, concurrently by the two courts below, for the offence under Section 138 of the Negotiable Instruments Act (for short 'NI Act'). Sentence imposed against the accused is payment of of fine of `.1,00,000/- with default term of simple imprisonment for three months. Feeling aggrieved, the accused has preferred this revision. 2. The learned counsel for the petitioner/accused reiterated before me the challenges canvassed before the courts below to assail the conviction concurrently rendered against him. The accused contended that he had issued only a blank signed cheque in respect of a liability to the complainant for a sum of `.50,000/-. He examined a mediator who is stated to have convened a meeting and recorded minutes of the proceedings of that meeting, in which nearly 100 persons, all stated to be creditors of the accused, participated. The minute so recorded with the particular entry relating to the sum payable towards the liability outstanding to the complainant was relied by the accused with reference to the evidence of the mediator examined as DW2, to substantiate the defence canvassed that a Crl.R.P No.2082 OF 2011 2 cheque in blank form with signature alone in respect of a liability for a lesser sum than what is shown under the cheque was issued to the complainant and as such the prosecution against him for the offence under Section 138 of the NI Act would not lie. The magistrate, who had the opportunity to record the evidence of the complainant, the accused and also his witness, the mediator examined as DW2, found the case of the complainant reliable, trustworthy and convincing, and the defence canvassed by the accused unworthy of any merit. The mediator examined as DW2 in his evidence unequivocally admitted that the minutes were prepared not at the meeting but at a later point of time as the meeting could not complete the proceedings smoothly as disputes arose between the participants requiring its dispersal. Whatever minutes prepared by him was not signed or acknowledged by the complainant was also brought out from his evidence. When that was the evidence tendered by him with reference to the minutes prepared by him, in which some entries are stated as to what was the amount due as liability from the accused to the complainant, the trial magistrate found that his evidence in no way assisted the accused to wriggle out of the penal consequences arising from the dishonour of the cheque, which, admittedly, arose from his account, and handed over to the complainant, whether it be for a security or for discharge of any Crl.R.P No.2082 OF 2011 3 liability. Then, the only question that is to be looked into is whether there was any merit in the defence pleaded by the accused that the cheque was issued in blank form with signature alone. Admittedly, even as per his defence version, the cheque was issued towards a liability outstanding, which, according to him was for a lessor sum of `.50,000/-. Signature subscribed in that instrument by him is also admitted. Then, as regards the entries in the cheque over the payees column, date etc if at all the accused had a case that it was done without authority, then, normally one would expect him to have a comparison of the entries made in the cheque with his admitted writings by way of a scientific examination through an expert. That was not done. Further more, as mandated by the statutory provision, a notice was issued on dishonour of the cheque intimating such dishonour and demanding the sum covered thereof. That notice was returned to the complainant. The accused has no case that that postal article was not sent in his address to which normally postal articles are delivered to him. Whatever be the reason for the returning of the postal article, this was a case where after dishonour of the cheque, at the stage of trial, the accused had put forward a defence that the cheque was issued in blank form with signature alone. That plea, which has been set up by him as a defence to resist the prosecution, on the materials placed, was Crl.R.P No.2082 OF 2011 4 found to be unworthy of consideration by the trial magistrate and also the learned Sessions Judge after reappreciating the evidence. Within the narrow compus covered by the revisional jurisdiction, the finding on fact entered by the inferior court, is not liable to be interfered with unless it is shown to be perverse. I do not find any infirmity in the conclusion concurrently formed by the courts below to repel the defence canvassed by the accused. The case of the complainant was accepted by both the courts to found a conviction against him. There is no infirmity in the finding so arrived at by the two courts below. 3. The learned counsel for the petitioner, at this stage, requested for grant of some time to pay the fine amount, submitting that a sum of `.10,000/-, while the case was pending before the magistrate and, later, another sum of `.40,000/- had been deposited towards the sum covered by the cheque. The trial magistrate has taken note of the payment made as `.10,000/- to fix the fine at `.1,00,000/- though the cheque was for a sum of `.1,10,000/-. Petitioner requires a breathing time to pay the balance sum due as fine, is the submission of the counsel. Taking note of the submissions made by the counsel, but, without expressing any opinion as regards the payments stated to have been made, which is a matter for inquiry by the magistrate, a short period as indicated Crl.R.P No.2082 OF 2011 5 hereunder is provided for payment. 4. Affirming the conviction and sentence, the petitioner/accused is granted time till 06-02-2012 to pay the amount due as fine, whatever amount is outstanding on the sum fixed by the courts below. If any amount has been deposited by the accused towards the fine, it shall be given credit to. The magistrate is directed to keep in abeyance the execution of sentence imposed against the accused till the date fixed as above to enable him to pay the fine within such period. In default of payment of the fine within such period, 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