IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 Crl.Rev.Pet.No. 1331 of 2010 ------------------------------ CRA.375/2008 of ADDL. SESSIONS COURT, ALAPPUZHA CC.689/2006 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- VINCENT, AGED 42 YEARS, S/O.CHELLAYAN NADAR, N.S.NIVAS, MULLUVILA.P.O, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE MATHEW SRI.DIPU JAMES RESPONDENT(S): RESPONDENTS/STATE & COMPLAINANT ---------------------------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. S.SAHADEVAN, PROPRIETOR, VINAYAGA DAL & FLOUR MILLS, NETHAJI JUNCTION, NORTH ARYAD.P.O, ALAPPUZHA. R1 BY P.P. SRI VENUGOPAL M.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No. 1331 of 2010 ---------------------------------------- Dated 19th Day of May, 2010 ORDER Challenging the concurrent finding of the trial court as well as the lower appellate court, the accused, in a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act, preferred this Crl. Revision Petition. 2. The allegation against the revision petitioner is that he issued a cheque dated 9.8.2006 drawn on the Nellimoodu Service Co-operative Bank for Rs.2,48,372/- towards the discharge of a debt and when the cheque presented for encashment, it was dishonoured as there was no sufficient fund in the account maintained by the revision petitioner. Hence, the complainant approached the trial court by filing a proper complaint and during the trial, the complainant himself was examined as PW1 and adduced oral evidence and also produced Exts.P1 to P5 documents to substantiate his case. From the side of the Crl.R.P. No.1331/10 -:2:- accused, DWs 1 to 3 were examined and produced Exts.D1 and D1(a). The trial court, after appreciating the evidence on record, has found that there was frequent transaction between the complainant and the accused in connection with the supply of green gram and the specific case taken by the accused is that the complainant supplied low quality green gram. It is also admitted by the accused that he had issued three signed blank cheques to the complainant. With the available materials, the trial court found that though the complainant has established his case by producing cogent and satisfactory evidence and as the transaction is admitted by the accused, it is for the accused to discharge his burden and to rebut the presumption available to the complainant under section 139 of the Act. Thus, relying upon the decision of the Apex Court in Hiten P.Dalal v. Brathindrnath Banerjee (2001(6) SCC 16), the trial court has held that the complainant has succeeded in his case and accordingly, the accused is found guilty. Though Crl.R.P. No.1331/10 -:3:- Crl.Appeal 375/2008 was filed by the accused, the lower appellate court confirmed the conviction recorded by the trial court and accordingly, the appeal was dismissed. 3. The learned counsel appearing for the revision petitioner-accused submitted that the accused had already discharged the debt due to the complainant and Ext.P1 cheque was issued, not connected with the transaction as claimed by the complainant, but it was issued during the year 2006 connected with another transaction. 4. It is seen from the judgments of the courts below that there was frequent transaction between the revision petitioner and the complainant and the main ground taken by the accused is to the effect that green gram supplied by the complainant was low quality and it was returned to the complainant himself. When the transaction between the complainant and revision petitioner is admitted, especially, the drawing, execution and issuance of the cheque, it is heavily upon the revision petitioner to clearly establish his defence. Thus, though Crl.R.P. No.1331/10 -:4:- the revision petitioner/accused disputed the transaction claimed by the complainant, no acceptable and satisfactory evidence was adduced to substantiate the case of the revision petitioner and thus, the revision petitioner miserably failed to discharge the burden of rebutting the presumption available in favour of the complainant under section 139 of the Act. Therefore, I find no reason to interfere with the concurrent finding of the courts below in exercise of the revisional Jurisdiction of this Court. Accordingly, this Crl.R.P is dismissed as there is no merit. V.K.MOHANAN, JUDGE kvm/- Crl.R.P. No.1331/10 -:5:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..