IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 1ST DECEMBER 2009 / 10TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 3462 of 2009() ------------------------------ CRA.189/2008 of SESSIONS COURT, PATHANAMTHITTA CC.1540/2006 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- P.K.SUGATHAN, S/O.KOCHUKUNJU, PERATHRAYIL HOUSE, PUNNAKKADU P.O., MALLAPPUZHASSERY VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.SIBY MATHEW SRI.PHILIP J.VETTICKATTU RESPONDENTS: RESPONDENTS/COMPLIANT & STATE -------------------------------------------- 1. GEORGE JOSEPH, KUZHIYIL HOUSE, VETTIPURAM MURI, PATHANAMTHITTA DISTRICT. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ----------------------------------- Crl.R.P.No3462 of 2009 ---------------------------------- Dated this the 1st day of December, 2009 ORDER The revision petitioner owed a sum of Rs.15,00,000/- to the first respondent. In discharge of the liability Ext.P1 cheque dated 1/7/2006 for the said amount drawn on Federal Bank Kozenchery Branch was issued. When Ext.P1 was presented for collection it was returned bounced for insufficiency of funds. Though the first respondent caused a notice demanding discharge, the liability was not discharged. With these pleadings the first respondent prosecuted the revision petitioner before the Judicial Magistrate of the First Class-I, Pathanamthitta in C.C.No.1540 of 2006. 2. The revision petitioner pleaded not guilty. He was sent for trial. On the side of the first respondent, he was examined as PW1 and Exts.P1 to P5 were marked. When questioned under Section 313 of the Code of Criminal Procedure, the revision petitioner denied the incriminating evidence. He took up a defence of discharge. In support of the plea of discharge, two witnesses were examined as DWs.1 and 2. The revision petitioner was examined as DW.3 and Exts.D1 to D3 were marked. The trial court on appraisal of the evidence Crl.R.P.No3462 of 2009 2 arrived a finding against the revision petitioner. Consequently, he was convicted and sentenced to simple imprisonment for one year and a fine of Rs.15,00,000/- with a default sentence of simple imprisonment for three months. 3. Being aggrieved, he preferred Criminal Appeal No.189 of 2008. The learned Sessions Judge by judgment dated 17/7/2009 concurred with the trial court. The conviction was confirmed. In sentencing, the Sessions Judge took a lenient view. The substantive sentence was reduced to imprisonment till rising of the court. In suppression of the fine, the revision petitioner was ordered to pay Rs.15,00,000/- as compensation to the first respondent under Section 357(3) of the Code of Criminal Procedure with a default sentence of simple imprisonment for three months. Now this revision. 4. Either side was heard. The judgments of the courts below were perused. The evidence of PW.1 supported by Ext.P1 would show that the revision petitioner owed a sum of Rupees fifteen lakhs and it is in discharge of the liability Ext.P1 cheque was delivered to the first respondent. In fact, the liability was not disputed. The revision petitioner had a case that Ext.P1 was drawn as a security and was entrusted to DW.1 who is a Crl.R.P.No3462 of 2009 3 lawyer. It is in support of that contention DW.1 was examined. But DW.1 denied the entrustment of cheque to him as security. Not only that DW.1 supported the liability that the revision petitioner owed to the first respondent. DWs.1 and 2 were also examined by the revision petitioner in support of his plea for discharge. DW.1 denied the so-called discharge pleaded by the revision petitioner. Of course, he deposed that there was some payment towards interest. But DW.2 supported the plea of discharge. According to DW.2 he along with revision petitioner went to ICICI bank, Kumbanadu branch, withdrew Rs.6,45,000/-, went to the house of the first respondent and paid the amount. Curiously the revision petitioner did not obtain any receipt and didn't adduce any evidence even regarding the withdrawal of the amount from ICICI Bank, Kumbanadu branch. In the above circumstance, the trial court arrived a conclusion that DW.2 is a hired witness and is not reliable. The appellate court also concurred with the trial court in disbelieving DW.2. I find no reason to interfere. So the plea of partial discharge could not be established by the revision petitioner. The revision petitioner as DW.3 had deposed that the balance Rs.8,55,000/- was paid by various occasions. But there is no bit of paper to show the Crl.R.P.No3462 of 2009 4 discharge. 5. It is also pertinent to note that the preliminary talks of transaction were done in the presence of DW.1, a lawyer with whom both parties had confidence. It was also revealed that a promissory note was also executed. According to PW.1 at the time when Ext.P1 was issued, the promissory note was torn. However, it is pertinent to note that for the amount due to the first respondent there was documentary evidence. In the above circumstance, it is rather difficult to believe that huge amounts were paid by the revision petitioner in discharge without any document. It is pertinent to note that for discharge, payment should have been made either by Demand Draft or cheque. If it was so, even if no receipt was obtained, there would have been documents regarding discharge. But, for the best reason known to the revision petitioner such a cause was not adopted and had come forward with a plea of discharge with no bit of document. In the above circumstance, the plea of discharge was correctly disbelieved by the courts below. The liability, the delivery of cheque, dishonour of cheque for want of sufficient funds, demanding discharge and failure to discharge the liability were all proved by the testimony of PW.1. There is compliance of the Crl.R.P.No3462 of 2009 5 statutory procedures before launching the prosecution. The revision petitioner who had advanced a plea of discharge could not succeed to establish the same. 6. According to the learned counsel for the revision petitioner, DW.1 had admitted in cross-examination that he knew that there are some payments towards interest. On the same time according to the learned counsel, there is no case for the first respondent that he had received any money towards the interest. Regarding the liability to pay interest or payment of interest either party had not adduced any evidence. Such a question was not put to the first respondent while he was in the box. Prosecution is not for non-payment of interest. So even if any amount towards the interest was paid that would not amount to discharge of the liability to exonerate the revision petitioner from the prosecution. The courts below had correctly appreciated the evidence and arrived a conclusion of guilt. The conviction under challenge is unassailable. It is based upon cogent evidence. 7. The appellate court was very lenient in reducing the sentence to one of imprisonment till rising of the court. Even if he had erred, it is only towards leniency. I find no reason to Crl.R.P.No3462 of 2009 6 interfere with the sentence also. In the result, this revision petition is devoid of merit. Accordingly, it is dismissed. The revision petitioner is granted six months time to pay the compensation. Till then, the bail bond executed by him shall remain in force. P.S.GOPINATHAN, JUDGE skj.