IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 Crl.Rev.Pet.No. 1500 of 2007(T) --------------------------------------------- CRA.291/2004 of ADDL. DISTRICT & SESSIONS COURT(ADHOC)III, PATHANAMTHITTA CC.262/2001 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED --------------------------------------------------------------- THOMAS THOMASKUTTY, KULATHILPARAMPIL STORES, KOODAL VILLAGE, PATHANAMTHITTA. BY ADV. SRI.LIJU.V.STEPHEN RESPONDENT(S)/ COMPLAINANT & STATE --------------------------------------------------------------- 1. K.VIDYADHARAN, VIDYA BHAVAN, KOODAL VILLAGE. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY SRI.V.N.ACHUTHA KURUP, SENIOR ADVOCATE ADV.SRI.C.P.PEETHAMBARAN R2 BY PUBLIC PROSECUTOR SMT.SEENA.R. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/10/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1500 OF 2007 ----------------------------------------- Dated this the 31st day of October 2011 ORDER Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, 'NI Act'), concurrently, by the two courts below. Sentence imposed against the accused, as modified by the learned Sessions Judge in appeal, is imprisonment till the rising of the court with direction to pay compensation of `.1,50,000/- to the complainant with default term of simple imprisonment for three months. Feeling aggrieved, the petitioner/accused has filed this revision. 2. Notice given, the 1st respondent/complainant has entered appearance. I heard the counsel on both sides. 3. The learned counsel for the petitioner/accused assailed the conviction concurrently rendered, contending that the defence canvassed by the accused, disputing any transaction with the complainant and also denying the execution of the cheque, was not properly appreciated by both the courts and that has resulted in forming wrong conclusion leading to miscarriage of justice. The accused contended that he had a money transaction with another, one Yesodharan, brother-in-law of the complainant, for a sum of `.40,000/-. That loan was availed on four occasions, each time for Crl.R.P No.1500 OF 2007 2 `.10,000/- handing over blank signed cheques, altogether four in number. Though the liability under that transaction had been discharged by payment, the cheques were not returned. The aforesaid Yesodharan, through his close relatives, including the complainant, and also personally, after presenting all the four cheques on the same day and getting them dishonoured, issued four advocate notices through the same counsel and, later, launched prosecution for the offence under Section 138 of the NI Act against him, filing four complaints, was the defence version of the accused. To substantiate the plea so canvassed that he had no transaction with the complainant and the cheques were issued as security in blank form towards a transaction with the brother-in-law of the complainant, Yesodharan, he examined himself as DW1. The admissions culled out during the cross examination of the complainant, examined as PW1 alone, according to the counsel lend assurance to the defence case canvassed by the accused. But, both the courts ignored and brushed aside the contentions of the accused without appreciating the facts and circumstances and also the evidence of the accused examined as DW1, is the submission of his counsel. Four complaint cases have been filed by Yesodharan and his close relatives against the complainant, the cheques in such cases were presented on the same day and notices were issued by Crl.R.P No.1500 OF 2007 3 the same counsel, to a great extent, probabalise the defence version canvassed by the accused that he had no transaction with the complainant, but, only with the aforesaid Yasodharan, is the submission of the counsel to contend that both courts have erred in appreciating the materials tendered in the case and the conclusion formed by them to found a conviction against the accused is unsustainable. Per contra, the learned counsel for the complainant contended that the concurrent finding of guilt entered by the courts below is based on appreciation of the materials tendered in the case and in the absence of any serious infirmity disclosing that such finding is perverse, within the narrow compus covered by the revisional jurisdiction, conviction founded against the accused is not liable to be interfered with. Adverting to the circumstance referred to by the courts below that the accused had not taken any steps to get back the cheques, which, according to him, had been handed over to Yasodharan as security even after discharge of the liability of the transaction with him, as claimed, it is contended that the defence that was projected to resist the prosecution was not even canvassed for or set up when a reply notice was sent (Ext.D1) in response to the statutory notice issued intimating the dishonour of the cheque. The only plea taken in the reply was that he had no transaction with the complainant, and there was no reference that Crl.R.P No.1500 OF 2007 4 he had issued four cheques in blank form to Yesodharan or of any matter which were later advanced at the stage of trial, submits the counsel. The defence so raised by the accused was found to be devoid of any merit by the courts below. There is no infirmity in the finding entered by the courts below to hold the accused guilty, to convict him of the offence under Section 138 of the NI Act, according to the counsel. 4. Going through the judgments rendered by the learned magistrate and also the learned sessions Judge, I find, the challenges now raised in the revision to impeach the concurrent finding of guilt rendered against the petitioner/accused cannot be given any merit in the proved facts and circumstances of the case as evident from the materials produced. In response to the statutory notice the accused has issued Ext.D1 reply notice. At that stage, other than denying of any transaction with the complainant, he did not set forth any other ground to explain how the cheque which admittedly arose from his account came to the custody of the complainant. He had handed over four cheques to Yesodharan, the brother-in-law of the complainant, the defence projected was not even made mention of nor any whisper thereof made when reply notice was sent. Issue of a statutory notice on dishonour of a cheque is not an empty formality but one of the essential Crl.R.P No.1500 OF 2007 5 ingredients to give rise to a cause of action to the payee to file a complaint. When the drawer of the instrument, which has been dishonoured on presentation, is intimated that the cheque has bounced, he has either to pay the sum within the statutory period fixed or to show justifiable cause why he is not laible to be prosecuted for the dishonour of that instrument. Mere denial of transaction relating to the cheque with the person who has issued such statutory notice is not sufficient to wriggle out of the penal consequences arising from the bouncing of the cheque under Section 138 of the NI Act. Cheque is a negotiable instrument, and, that being so, not only the payee, but, a holder in due course, who has obtained that instrument for consideration after presentation of such instrument, if it is dishonoured, is competent to launch the prosecution against the maker of that instrument. When that be so, it is incumbent upon the drawer to show justifiable reason why he should not be prosecuted despite the dishonour of the cheque drawn by him. Further more, in the given facts of the case, it is seen that though the accused contended of discharging the liability over the transactions which he alleged of having had with Yesodharan, the brother -in-law of the complainant, has no case that at any point of time he took any step for getting back the cheques which are stated as given as security for the loan transaction. Even after Crl.R.P No.1500 OF 2007 6 discharge of the liability over the transaction with Yesodharan, as claimed by him, he did not instruct his bank not to honour the cheques if presented for payment. An ordinary prudent man is expected to take legal steps for getting back the security furnished when a transaction is settled by payment or at least inform his bank to stop payment of such cheques. The circumstance canvassed that Yesodharan and also two of his relatives apart from the complainant filed complaints against the accused, after all of them presented the cheques on the same day before the bank issuing notices through the same counsel, without anything more is hardly sufficient to give credence to the defence version of the accused that he had transaction only with Yesodharan and four cheques were handed over to him towards security for such transaction. The evidence of the complainant, who was examined as PW1, was found reliable, trustworthy and convincing to the learned magistrate who had the opportunity to watch his demeanour and deportment while recording his testimony. He has also found that the evidence of the accused examined as DW1 unworthy of any merit. The learned sessions Judge after reappraisal of the evidence has concurred with the aforesaid conclusion drawn by the magistrate. As rightly contended by the learned counsel for the complainant, within the narrow compus covered by the revisional jurisdiction, finding on fact Crl.R.P No.1500 OF 2007 7 entered by the inferior court is not liable to be disturbed or interfered with unless it is shown to be perverse or not based on the materials tendered in the case. Even if a different view, perhaps, a better view than the one formed by the inferior court could be drawn from the materials tendered in the case that by itself would not enable this court to exercise revisional jurisdiction to supplement its view if the view formed by the inferior court could also be formed on the materials tendered in the case. When such be the position of law, and as no circumstance whatsoever has been pointed out that the findings entered by the court below on the disputed questions involved suffer from any infirmity, I find, the challenge against the conviction founded against the accused must fail. So far as the sentence awarded also, it is shown maximum leniency has been extended by the learned sessions Judge in modifying and reducing the substantive term of imprisonment retaining the compensation amount with the default term. 5. Affirming the conviction and sentence, the petitioner/accused is directed to appear before the Magistrate on 02-01-2012 to serve out the imprisonment till the rising of the court, and to report payment of compensation. If any sum has been deposited already towards compensation, by the petitioner/accused, it shall be given credit to in the compensation Crl.R.P No.1500 OF 2007 8 fixed and awarded. The magistrate is directed to keep in abeyance the execution of sentence till the date fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and nonpayment of the compensation within the time fixed, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge