IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 Crl.Rev.Pet.No. 378 of 2002() ----------------------------- CRA.139/1999 of SESSIONS COURT, THRISSUR CC.449/1996 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVISION PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------------------------------------------- M.S.SUBRAMANIAN, AGED 49 YEARS, MECHERY VALAPPIL HOUSE, CHOORAKATTUKARA, P.O.AMALA NAGAR, THRISSUR DISTRICT. BY ADV.MR.M.V.BOSE RESPONDENT(S): RESPONDENTS/COMPLAINANT: --------------------------------------------------------------------------- 1. K.K.SHEKARAN, S/O.KUNJUMON, REJI ENGINEERING WORKS, II/741,CHOWANNUR PANCHAYAT, THRISSUR DISTRICT. 2. KERALA STATE, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV. MR.T.M.CHANDRAN R2 BY PUBLIC PROSECUTOR SMT. M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.2652/2002 IN CRRP.NO.378/2002 DISMISSED 1/04/2009 SD/- S.S.SATHEESACHANDRAN,JUDGE /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.378 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 1st April, 2009 ORDER Challenge in the revision is against the concurrent verdict of guilty rendered against the revision petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act'). The first respondent, hereinafter referred to as the complainant, filed a complaint to prosecute the accused for the offence under Section 138 of the N.I.Act. Negativing the plea of not guilty raised by the accused, the learned Magistrate, after trial, found him guilty and convicted and, sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs.51,000/- with default term of simple imprisonment for three months more. Out of the fine amount, if realised, Rs.50,000/- was directed to be paid as compensation to the complainant. The learned Sessions Judge in revision confirmed the conviction, but modified the sentence retaining the substantive term of simple imprisonment for three months directing the accused to pay compensation of Rs.50,000/- to the complainant under Section 357(3) of the Cr.P.C. Aggrieved by the conviction and sentence, the accused has preferred this revision questioning its legality, propriety and correctness. Crl.R.P.No.378/02 - 2 - 2. The case of the complainant in brief is that the accused towards discharge of a loan issued Ext.P1 cheque for a sum of Rs.50,000/- promising its encashment on presentation in due course. The cheque when presented was dishonoured due to insufficiency of funds in the account of the accused. Statutory notice issued intimating dishonour and demanding the sum covered by the cheque was acknowledged, but not responded with reply or payment. The complainant thereupon launched prosecution against the accused under Section 138 of the N.I.Act. 3. The accused, on appearance, pleaded not guilty when the particulars of the offence were made known. Complainant examined two witnesses, P.Ws.1 and 2 and got marked Exts.P1 to P7 to prove the case. The accused questioned under Section 313 of the Cr.P.C. maintained his innocence. He examined one witness as D.W.1. 4. I heard the learned counsel for the revision petitioner/accused and also the learned counsel for the complainant. Learned counsel for the accused assailing the conviction contended that the complainant had not let in any evidence to prove that Ext.P1 cheque had been issued in discharge of a debt or liability due from the accused. The evidence of D.W.1 who witnessed the transaction over the cheque, as admitted by the complainant, it is submitted, Crl.R.P.No.378/02 - 3 - runs contrary to the evidence of the complainant that the cheque was received in the month of September, 1996. D.W.1 in his evidence has stated that the transaction took place in January, 1996 and two months later the cheque was issued to the complainant at the house of the accused. Since the version of the complainant over the transaction is found not established and further disproved by the evidence of D.W.1, it is the submission of the counsel that better evidence on the transaction leading to the issue of Ext.P1 cheque was required to sustain the prosecution under Section 138 of the N.I.Act. On the other hand, learned counsel for the complainant submitted that there is no merit in the challenges raised against the conviction of the accused, which, according to the counsel, is fully supported by the legal evidence. It is further submitted that D.W.1, the witness examined by the accused also supported the version of the complainant that the cheque had been handed over by the accused towards discharge of a liability arising out of a loan transaction. 5. I have perused the records of the case giving consideration to the submissions made by the counsel on both sides. First of all, it has to be pointed out revisional jurisdiction is supervisory in character and intended to avoid failure of justice. Concurrent finding entered by the two inferior courts is not liable to be interfered with in revision Crl.R.P.No.378/02 - 4 - unless it is shown such finding is so perverse and not supported by the materials tendered in the case. Even if a different view on the materials produced is permissible, the revisional court cannot supplement its view as different from the view taken by the inferior courts. The learned Magistrate who had the opportunity to watch the demeanour and deportment of the complainant examined as P.W.2, found his testimony reliable, trustworthy and credible. Perusing the evidence of P.W.2, I find no reason to take a different view. Further more, it is seen, during his cross examination, the accused had no definite defence to impeach his assertion that the cheque had been issued in discharge of liability arising out of a loan advanced to him. This has to be viewed in the backdrop that despite receiving statutory notice intimating dishonour of the cheque, no reply was given. Other than contending that the accused had not received any loan from the complainant, the defence projected was that he had handed over Ext.P1 cheque as security to a chitty company. He had no information how the complainant had collected the cheque from the chitty company or any explanation how the cheque landed in the hands of the complainant. While giving evidence P.W.2 stated that the transaction was witnessed by one Sankaranarayanan. Though the accused had not advanced any specific defence other than putting Crl.R.P.No.378/02 - 5 - forth some suggestive questions to the complainant, during his cross examination, not even when he was questioned under Section 313 when his attention was invited to the incriminating circumstances appearing in the prosecution evidence, he proceeded to examine the person named by the complainant, who was stated as present when the transaction between them took place. The witness examined by the accused as D.W.1, it is seen, supported the case of the complainant. Of course, there is some discrepancy in his evidence as regards the date when the cheque was handed over, which in the given facts of the case, has got only innocuous value. On the materials produced in the case, the conviction founded against the accused for the offence under Section 138 of the N.I.Act is not liable to be interfered with as it is found fully supported by legal evidence. Conviction of the accused is only to be upheld and I do so. Now, considering the sentence imposed against the accused, it is true that normally incarceration of an offender found guilty of the offence under Section 138 of the N.I.Act for a term in prison is not warranted to meet the ends of justice. Accused is stated to be an Executive Officer in Panchayat Department. Having regard to the post held by him as a public servant which command respect in the society, it cannot be stated that the courts below have erred in awarding a Crl.R.P.No.378/02 - 6 - deterrent punishment directing him to undergo substantive term of imprisonment for three months. Learned counsel for the accused, however, made a fervent plea for avoiding the prison term on the ground that he had already retired from service. Having regard to the facts involved and the submissions made, sentence imposed against the accused is modified directing him to undergo imprisonment till the rising of the court and to pay compensation of Rs.55,000/- to the complainant under Section 357(3) of the Cr.P.C. within two months from the date of this order. In default of payment of compensation within the stipulated time as directed, the accused shall undergo simple imprisonment for two months. The accused shall appear and his sureties shall produce him before the Judicial First Class Magistrate, Kunnamkulam on 1st June, 2009 and the learned Magistrate shall execute the sentence as directed. Revision is disposed of as above. srd S.S. SATHEESACHANDRAN, JUDGE