IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 Crl.Rev.Pet.No. 3502 of 2010() ------------------------------ (CRL. APPEAL.830/2008 of ADDL.SESSIONS COURT-II, KOZHIKODE ST.1295/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT (MARAD CASES) KOZHIKODE). .................... REVN. PETITIONER/APPELLANT/ACCUSED --------------------------------------------------------------- ABDUL MAJEED.P.M., S/O.USSAN KOYA, AGED 55 YEARS, PROPRIETOR UNIVERSAL TRADERS, OPP: P.P. ASSOCIATES, NEAR OVER BRIDGE, BIG BAZAR, KOZHIKODE-1, RESIDING AT SUPRIYA, V.K.K. MENON ROAD, KALLAI.P.O. BY ADVS. SRI.JOSEPH A.VADAKKEL SRI.GEORGE K. VARGHESE SRI.JOSE KURIAKOSE (VILANGATTIL) RESPONDENT/COMPLAINANT/COMPLAINANT AND STATE ------------------------------------------------------------------------------------- 1. P.PRASANNA KUMAR, S/O. GOPALAN, AGED 53 YEARS, DIAMOND TIMBER CO. RESIDING AT "ISWARYA" NELLICODE.P.O., KOZHIKODE-15. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR, SRI.V.TEK CHAND SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK P.S.GOPINATHAN, J ----------------------------------- CR.R.P.NO.3502 OF 2010 --------------------------------------- Dated this the 15th day of December, 2010 ORDER The revision petitioner is the accused in S.T.No.1295/2007 on the file of the Judicial Magistrate of the First Class (Marad cases) Kozhikode. The revision petitioner was found guilty for offence under Section 138 of the Negotiable Instruments Act, convicted and sentenced to simple imprisonment for three months with direction to pay Rs.2,00,000/- as compensation to the first respondent who prosecuted the revision petitioner. The revision petitioner pleaded not guilty. Hence he was sent for trial. During the course of the trial, the first respondent was examined as PW1 and Exts.P1 to P5 were marked. The revision petitioner took up a plea that he borrowed a sum of Rs.50,000/- and as a security Ext.P1 cheque was issued. In support of that plea his son was examined as DW1. The learned Magistrate, on appraisal of the evidence on record, arrived at a conclusion of guilt. Consequently, the revision petitioner was convicted and sentenced as above. Aggrieved by the above conviction and sentence, Crl.A.No.830/2008 was filed. The 2nd Additional Sessions Judge, Kozhikode to whom the appeal was made CR.R.P.NO.3502 OF 2010 2 over, by judgment dated 13-07-2010 concurred with the trial court. However, the appellate court was very lenient in reducing the substantive sentence to imprisonment till the rising of the court . Assailing the legality, correctness and propriety of the above conviction and sentence as reduced in appeal, this revision petition was preferred. Having heard Sri.Jose Kuriakose, learned counsel appearing for the revision petitioner and perusing the judgment impugned as well as the judgment of the trial court, I find that the first respondent who was examined as PW1 had succeeded in establishing that the revision petitioner owed to him a sum of Rs.2,00,000/-. In discharge of that liability Ext.P1 cheque dated 24-09-2007 drawn on UCO Bank, Palayam Branch, Kozhikode was issued and that when Ext.P1 was sent for collection through the State Bank of Travancore, Mavoor Road Branch, Kozhikode, it was returned dishonoured for insufficiency of funds along with Ext.p2 memo. Despite notice demanding discharge, the liability was not cleared. Instead, the revision petitioner caused Ext.P5 reply. According to the learned counsel for the revision petitioner the cheque issued was a blank one and even the request of the revision petitioner to send the cheque for expert opinion regarding CR.R.P.NO.3502 OF 2010 3 the signature was declined by the courts below. So, according to the learned counsel, the revision petitioner was denied the right to prove his defence. Going by the evidence of PW1, I find that there is not any suggestion that the signature contained in Ext.P1 is not that of the revision petitioner. There is also no suggestion that the first respondent was familiar with the signature of the revision petitioner so as to fabricate the signature or that the signature in Ext.P1 is a forged one. Ext.P2 would show that the cheque was dishonored only for want of sufficient funds. The Bank has no doubt about the genuineness of the signature. Such being the evidence on record, there is no merit in the contention that the cheque was not sent for expert opinion. Expert opinion on the signature is relevant only if the signature is disputed. Here, there is no dispute regarding the signature. The dispute is that Ext.P1 was issued as security to another person. In support of that plea, there is no reliable evidence. In the above circumstances, I find no reason to disbelieve the first respondent who withstood the cross examination. Evidence of PW1 is corroborated by the presumption under Sections 118 and 139 of the Negotiable Instruments Act that Ext.P1 was drawn for valuable consideration and issued in discharge of the liability. The revision petitioner had not succeeded to rebut the CR.R.P.NO.3502 OF 2010 4 legal presumptions. The evidence of DW1 is not sufficient to rebut the presumptions in favour of the first respondent. The courts below rightly disbelieved DW1. In the above circumstances, I find that the courts below had correctly appreciated the evidence and their conclusions regarding guilt is based upon cogent evidence. The Appellate Court was very lenient in reducing the sentence to imprisonment till the raising of the court. The direction to pay compensation is also just and no interference is called for. In the result, the revision petition is devoid of merit and it is accordingly dismissed. The revision petitioner is granted six months time to remit the compensation amount. In the event the revision petitioner had made any payment direct to the first respondent with proper acknowledgment that shall be given credit to. P.S.GOPINATHAN,JUDGE pm