IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 18TH AUGUST 2010 / 27TH SRAVANA 1932 Crl.Rev.Pet.No. 2889 of 2004(A) --------------------------------------------- CRA.462/2003 of III ADDL. SESSIONS COURT (ADHOC) FAST TRACK NO.I, THRISSUR ST.5428/2000 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR .................... REVN. PETITIONER/3RD ACCUSED/APPELLANT: ----------------------------------------------------------------------- SIVADASAN, S/O. KUTTAPPAN, EDAVANNA PARAMBIL, KONATHUKUNNU, THEKKUMKARA, MUKUNDAPURAM TALUK. BY ADV. SRI.P.J.MATHEW, SRI.THOMAS JOHN AMBOOKEN. RESPONDENTS/COMPLAINANT/1ST RESPONDENT & STATE: ----------------------------------------------------------------------------------------- 1. JAMAL, S/O. KUNJUMARAKKAR, KOYALIPARAMBIL, LOKAMALESWARAM, KODUNGALLUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R1 BY ADV. SRI.K.A.JALEEL. R2 BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. P.S.GOPINATHAN, J. = = = = = = = = = = = = = = Crl.R.P.No.2889 of 2004. = = = = = = = = = = = = = = Dated this the 18th day of August, 2010. O R D E R The revision petitioner was the Chairman of Aswas Hospital, Konathukunnu, Mukundapuram. The hospital building was constructed by the first respondent who is a Civil Engineer as well as a contractor. The first respondent prosecuted the hospital as well as the revision petitioner and another Director of the hospital before the Judicial Magistrate of the First Class, Kodungallur in ST.No.5428/2000 alleging offence under Section 138 of the Negotiable Instruments Act with a plea that out of the transaction between the first respondent on one hand and the revision petitioner on the other hand, regarding construction, revision petitioner spent a sum of Rs.Five lakhs and in discharge of the same a cheque, which was marked as Ext.P1 was issued and that when Ext.P1 was presented for collection it was returned dishonoured for insufficient funds as evidenced by Ext.P2 memo and that Crl.R.P.No.2889 of 2004. -: 2 :- demanding discharge of liability, a lawyer notice, copy of which was produced as Ext.P3 was caused and that despite the acknowledgment of the notice, the liability was not discharged. 2. The revision petitioner and other accused pleaded not guilty. So they were sent for trial. The first respondent was examined as Pw1 and Exts.P1 to P8 were marked. When questioned under Sec.313 Crl.PC, the revision petitioner and others denied all the incriminating evidence. On the side of the accused, one witness was examined as Dw1 and Exts.D1 to D10 were marked. The defence evidence is in attempt to establish that there was no liability outstanding. The trial court believed the first respondent and arrived at a finding of guilt. Accordingly, the accused were convicted and the revision petitioner was sentenced to simple imprisonment for three months with a direction to pay Rs.Three lakhs as compensation to the first respondent. The revision petitioner preferred Crl.Appeal Crl.R.P.No.2889 of 2004. -: 3 :- No.462/2003 and the 2nd accused preferred Crl.Appeal No.435/2003. Both appeals were heard together and by a common judgment dated 19.8.2004, while confirming the conviction, the substantive sentence was reduced to imprisonment till the rising of the court. The order to pay compensation was sustained. Assailing the legality, correctness and propriety of the above conviction and sentence as modified in appeal, this revision petition was filed. 3. Having heard either side, I find that the first respondent by his evidence as Pw1 supported by Exts.P1 to P8 had succeeded to establish that the first respondent had spent a sum of Rs.Five lakhs for the construction of the hospital building, in discharge of which Ext.P1 cheque was issued by the revision petitioner and others and it was returned dishonoured when presented for collection. The revision petitioner and other accused, as mentioned earlier, took up a plea of discharge. It is in support of that plea Ext.D3 Crl.R.P.No.2889 of 2004. -: 4 :- receipt dated 25.1.2002 was issued. Ext.D3 would show that the first respondent had acknowledged a cheque for Rs.Ten lakhs. But, there is no whisper in Ext.D3 that the said cheque is in respect of the amount covered by Ext.P1 cheque. It is in that circumstance, the courts below disbelieved the defence plea. Adding to that, Ext.D3 payment is subsequent to the launching of the transaction. Hence, Ext.D3 is not at all sufficient to interfere with the conviction under challenge. It is revealed out in evidence that there were so many transactions between the revision petitioner and the first respondent regarding the construction of the hospital building and there were so many payments also. There were two other similar prosecutions and those cases were withdrawn on payment of the amount due. The first respondent was very fair in his dealings. In the normal course, if the alleged payment is towards Ext.P1, definitely the first respondent would have withdrawn the prosecution. In the above circumstance, Crl.R.P.No.2889 of 2004. -: 5 :- Ext.D3 cannot be treated as a discharge of the liability covered by Ext.P1 cheque. I find little reason to interfere with the conviction. The appellate court was very lenient in reducing the sentence to imprisonment till the rising of the court. The sentence also requires no interference. In the result, the revision petition is dismissed as devoid of merit. However, the revision petitioner is granted one month time to remit the compensation amount. In the event any deposit is already made by the revision petitioner towards the payment to the first respondent relating to the amount covered by Ext.P1, that shall be given credit to. P.S.GOPINATHAN, (Judge) Kvs/-