IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 Crl.Rev.Pet.No. 339 of 2004(B) ------------------------------ AGAINST JUDGMENT IN CRL.APPEAL 341/02 OF SESSIONS JUDGE, THRISSUR IN CC.NO.373/98 OF JFCM-III, THRISSUR REVN. PETITIONER(S): PETITIONER/PETITIONER ------------------------------------------ PUSHPANGADHAN, S/O.KANDUKUTTY, POONAMPARA HOUSE, KALATHODE, OLLUKKARA, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENT(S): RESPONDENTS -------------------------- 1. ABDUL RAFFIK.K.A., S/O.ABOOBACKER, KIZHUVELLIPARAMBIL HOUSE, KALATHODE, OLLUKARA, THRISSUR TALUK, THRISSUR DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.C.A.CHACKO FOR R1 PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ``````````````````````````````````````````````````````` Crl.R.P. No. 339 of 2004 B ``````````````````````````````````````````````````````` Dated this the 4th day of August, 2010 O R D E R Revision petitioner is challenging the conviction and sentence for the offence under Section 138 of the Negotiable Instruments Act in C.C.No.373/1998 on the file of Judicial First Class Magistrate-III, Thrissur as confirmed in Criminal Appeal No.341/2002 by Sessions Judge, Thrissur. First respondent is the complainant. He lodged the complaint, taken cognizance by the learned Magistrate for the offence under Section 138 of the Negotiable Instruments Act, contending that petitioner borrowed Rs.60,000- and towards its repayment, issued Ext.P1 cheque drawn in his account maintained in Thrissur Branch of Bank of Baroda. When the cheque was presented for encashment through Service Co-operative Bank Ltd., Ollukkara Branch, where first respondent has an account, it was dishonoured for want of sufficient funds, under Ext.P2. First respondent sent Ext.P3 notice, received by the petitioner under Ext.P4, demanding the amount covered by Ext.P1. He did not pay the amount and did not send any reply. It is alleged that petitioner thereby committed the Crl.R.P.339/2004 : 2 : offence. 2. Petitioner pleaded not guilty. First respondent was examined as PW1. Exts.P1 to P7 were marked. Petitioner was not examined. He examined the Manager of the Bank where first respondent has an account as DW1 and the Assistant Sub Inspector of Mannuthi Police Station as DW2 and marked Ext.D1 cheque. The learned Magistrate, accepting the evidence of PW1, found that though it is the case of the petitioner that Ext.P1 cheque was issued as security in a transaction of the first respondent with Alphonsa, he did not adduce any evidence to establish the case. The presumption under Section 139 of the Negotiable Instruments Act was not rebutted. Hence, petitioner was convicted. The learned Sessions Judge, on re-appreciation of the evidence, confirmed the conviction and modified the sentence to imprisonment till rising of court and a compensation of Rs.90,000/- and in default, simple imprisonment for three months. The revision is filed challenging the same. 3. Revision petitioner would contend that the courts below should have found that Ext.P1 cheque was not issued towards the Crl.R.P.339/2004 : 3 : discharge of any debt or liability and was issued only as a security in a transaction with Alphonsa and, therefore, the conviction is bad. It is also contended that the learned Sessions Judge was not justified in enhancing the compensation in an appeal filed by the accused and in any case, the default sentence awarded is illegal. 4. Learned counsel appearing for the petitioner and the first respondent were heard. 5. The evidence of PW1 establishes that petitioner borrowed Rs.60,000/- and towards its repayment, issued Ext.P1 cheque. Though petitioner has a case that Ext.P1 cheque was issued as security, when first respondent granted a loan to Alphonsa at the instance of the petitioner, and it was not issued in discharge of any debt or liability, petitioner did not adduce any evidence to establish that fact. Petitioner was not examined. He did not examine Alphonsa. The suggestion given to PW1 is that petitioner is having no means or income. If that be the case, there cannot be an account in the name of the petitioner and even if he is having an account, nobody will receive a cheque of the petitioner as a security. Moreover, there is no case for the Crl.R.P.339/2004 : 4 : petitioner that the cheque was issued as a blank cheque. Evidence of PW1 establishes that the cheque was written and signed in his presence by the petitioner. Execution is, therefore, proved. Hence, presumption under Section 139 is available. Though it is a rebuttable presumption, petitioner did not adduce any evidence to rebut the presumption. Evidence of DW2 only shows that a complaint was filed by the petitioner and first respondent was called to the Police Station and was advised to approach the court. The evidence of DW1 does not show what was the allegation in the complaint. Though DW1 produced Ext.D1 cheque for Rs.20,000/- issued in the name of Alphonsa, it does not even corroborate the defence case that petitioner issued Ext.P1 cheque as security. On the evidence, the courts below were justified in finding that Ext.P1 cheque was issued in discharge of the debt. There is no dispute that the cheque was dishonoured for want of sufficient funds and first respondent had complained with all statutory formalities provided under Sections 138 and 142 of the Negotiable Instruments Act. The conviction is perfectly legal. Crl.R.P.339/2004 : 5 : 6. Then the question is only regarding the sentence. The learned Sessions Judge reduced the substantive sentence and enhanced the compensation. It is perfectly legal. In view of the decision of the Apex Court, awarding default sentence with compensation under Section 357(3) of the Code of Criminal Procedure is also perfectly legal. There is no merit in the revision. It is dismissed. Petitioner is directed to appear before Judicial First Class Magistrate-III, Thrissur on 17-08-2010. Judicial First Class Magistrate-III, Thrissur is directed to execute the sentence. (M.SASIDHARAN NAMBIAR, JUDGE) aks