IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 Crl.Rev.Pet.No. 2586 of 2004(C) -------------------------------------------- CC.602/1997 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA CRA.173/2000 of ADDL. DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT II, PATHANAMTHITTA. .................... PETITIONER(S): APPELLANT/ACCUSED: -------------------------------------------------------- T.G. RAMACHANDRAN, APSARA BHAVAN, ETHITHANAM P.O., CHANGANACHERRY. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENT(S): COMPLAINANT & STATE: ---------------------------------------------------------------- 1. JACOB CHERIYAN, KOCHUPURACKAL HOUSE, KARAKKAL P.O., PERINGARA VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.JACOB MATHEW MANALIL, SRI.G.G.MANOJ. R2 BY PUBLIC PROSECUTOR SRI.I.V.PRAMOD THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss N.K.BALAKRISHNAN, J. ----------------------------------- Crl.R.P No. 2586 OF 2004 ----------------------------------- Dated this the 2nd day of August, 2011. O R D E R The accused in a case filed against him under Section 138 of the Negotiable Instruments Act challenges the conviction and sentence passed against him. The learned counsel for the revision petitioner would submit that the courts below have not appreciated the evidence of PW1. It is further argued that going by the evidence of PW1 it can only be found that Ext.P1 was handed over to the complainant only as a security for the amount which was earlier due from him to the complainant and that Ext.P1 was not issued in discharge of a legally enforceable debt or liability. This contention has been stoutly resisted by the learned counsel for the complainant. 2. Learned Magistrate has analysed the evidence given by the complainant and the accused(as DW1) and also the Crl.R.P No. 2586 OF 2004 2 documentary evidence, Exts.P1 to P4. It was found that the statutory notice was sent in the correct address of the accused but it was returned unclaimed and so it has to be presumed that the accused knew that the contents of the notice was against his interest and that was why it was not received. The contention to the contrary advanced by the accused was not accepted by the learned Sessions Judge. 3. Regarding the execution of Ext.P1 there is the evidence given by PW1. Though counter evidence was given by the accused as DW1, the fact that Ext.P1 was signed and issued by him to the complainant could not be properly assailed by him. The evidence would show that there were transactions between the complainant and the accused. There is also evidence to show that the bus which belonged to the complainant was sold to the accused. It appears, for sometime the vehicle could not be plied because it required some repairs. It was contended that the loan could not be availed of from the bank as the complainant did not render Crl.R.P No. 2586 OF 2004 3 necessary assistance as promised by him. But no action was taken by the accused with regard to the same. Hence it can safely be concluded that Ext.P1 was issued in discharge of a legally enforceable debt or liability. All statutory formalities are seen complied with. Hence conviction is confirmed. The learned Sessions Judge altered the sentence to a fine of Rs.1,10,000/- with a default sentence of six months. It requires no interference. Hence the sentence imposed by the appellate court stands confirmed. It is submitted by both sides that portion of the fine amount was deposited before the learned Magistrate. That amount, shall be released to the complainant. The accused/revision petitioner is granted three months time to pay the balance amount. Revision is disposed of as above. N.K.BALAKRISHNAN, JUDGE mns