IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 Crl.Rev.Pet.No. 2919 of 2008() ------------------------------ CRA.27/2008 of THE IVTH ADDL.DISTRICT AND SESSIONS COURT (ADHOC - II), THODUPUZHA ST.109/2007 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT - II, PEERUMEDU .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: -------------------------------------- THOMAS ABRAHAM @ BABY, PUTHIYATHU VEEDU, NEAR V.G.M.S.HOSPITAL, ANAKKUZHI, DYMUKKU.P.O. BY ADV. SRI.T.A.UNNIKRISHNAN SRI.P.P.BIJU RESPONDENT(S)/RESPONDENTS/COMPLAINANT AND STATE: -------------------------------------- 1. VARGHESE.K.IDIKKULA, S/O.K.V.IDIKKULA, VALARDI ESTATE, VANDIPERIYAR, PEERUMEDU TALUK. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.GEORGE MATHEW FOR R1 SRI.SUNIL KUMAR A.G FOR R1 PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.2919 OF 2008 ----------------------------------- Dated this the 2nd day of September, 2011 O R D E R Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, for short, the 'N.I.Act', concurrently, by the two inferior courts. On his conviction, the learned Magistrate sentenced him to undergo simple imprisonment for three months and to pay Rupees three lakhs as compensation to the complainant with default term of imprisonment for three months. Challenge against the conviction and sentence by way of appeal preferred by the accused was turned down by the learned Sessions Judge. Feeling aggrieved, he has preferred this revision. 2. I heard the counsel for the revision petitioner/accused and also the 1st respondent/complainant. Complainant has not proved his financial capacity to extend a loan of Rupees three lakhs as claimed by him, and in fact, the evidence let in by him Crl.R.P.No.2919/2008 2 that he has collected Rs.50,000/- out of Rupees three lakhs extended of loan by withdrawal from his account was shown to be false and incorrect by the materials tendered by the accused examining the bank manager and also producing statement of his account, but, without looking into those aspects, both the courts below have founded a conviction against the accused, is the submission of the counsel. When the cheque involved was claimed to have been collected in discharge of the loan extended to the accused for the sum stated under the instrument and the assertion made by the complainant as regards his capacity to extend such loan has been belied and shown to be wrong by the convincing materials tendered by the accused, it knocks down the bottom of the complainant's case and no conviction could have been entered into against the accused for the offence under Section 138 of the N.I.Act. is the further submission of the counsel. Per contra, the learned counsel appearing for the 1st respondent/complainant submitted that both the courts after meticulously appreciating the materials on record have found the accused guilty of the offence imputed taking note that the defence projected over the financial capacity of the complainant Crl.R.P.No.2919/2008 3 to advance the loan relating to the cheque involved, does not in any way affect the core or substratum of his complaint. The accused has contended that the cheque was issued as a security in relation to a previous loan transaction with the complainant, for a sum of Rupees one lakh and that was discharged by payment. After discharging of such loan, the cheque was not returned, was his case. No material to sustain such a plea was produced before the court, submits the counsel. At any rate, the finding of guilt entered against the accused based on the evidence let in the case so long as it is not shown to be suffering from any infirmity is not liable to be interfered with in exercise of the revisional jurisdiction, is the further submission of the counsel to contend that the revision lacks merit and it is only to be dismissed. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge with reference to the submissions made by the counsel on both sides and also perusing the records of the case, I find that at different stages, the accused has shaped out his defence modulating a case that Crl.R.P.No.2919/2008 4 the cheque involved was given only as a security for a previous loan transaction which he had with the complainant. Though the accused had sent a reply to the statutory notice issued by the complainant, no copy of that notice was produced. In fact, when cross examining the complainant, who was examined as PW1, initially, he had put forward a suggestive question that no cheque was issued to him. Another suggestive question was put that in the reply notice that was sent to him, it had been contended that the cheque had been issued in respect of a previous loan transaction for a sum of Rupees one lakh. At any rate, he had no case when the complainant was examined as PW1 that a cheque, on which, he was prosecuted was issued as a security or otherwise in blank form with signature alone, which was his case when questioned later under Section 313 of the Cr.P.C. When such be the defence set up, shaping out the version as different from one another, with no material tendered whatsoever to draw even an inference that the cheque was issued in blank form with signature alone, the attack levelled against the case of the complainant for the reason that there was some discrepancy in his evidence with respect to the source from Crl.R.P.No.2919/2008 5 which the amount was extended as loan, which had been canvassed to assail the merit of his case as a whole, deserve to be taken note of only for its rejection. The learned Magistrate has found the testimony of the complainant reliable and trustworthy to hold that the case advanced by him deserved acceptance. The accused, whatever be the defence set up by him, in relation to the cheque, kept away from the box and was not prepared to give evidence giving an opportunity to the complainant to test the merit of his defence. When such be the case, and the materials tendered unerringly pointed out the guilt of the accused, as rightly and correctly found by the two courts below to found a conviction against him, I find, interference in revision is impermissible especially where the finding of guilt entered into is not shown to be suffering from any infirmity whatsoever. 4. So far as the sentence imposed, the punishment awarded to the accused includes simple imprisonment for three months. Though the amount covered by the cheque is substantial, such substantive term of imprisonment for the Crl.R.P.No.2919/2008 6 period fixed is uncalled for and it requires modification. Sentence has to be modified and reduced to imprisonment for a day, till the rising of the court retaining the compensation awarded with the default term. 5. At this stage, the learned counsel for the petitioner seeks some more time to pay the compensation awarded, and, thus, to avoid the default term. Cheque involved in the case is dated 18.12.2006 and the sum covered by that instrument is Rupees three lakhs. When that be so, I find no justification in granting further time to pay the compensation. 6. Confirming the conviction of the accused, sentence imposed to him is modified reducing it to imprisonment for a day, till the rising of the court, retaining the compensation of Rupees three lakhs to the complainant with default term of simple imprisonment for three months. Accused shall report before the Judicial First Class Magistrate Court - II, Peermade, on 25.10.2011 to serve out the substantive term of imprisonment for a day, till the rising of the court, and to report the payment of Crl.R.P.No.2919/2008 7 the compensation fixed as above. Till the date fixed as above for his appearance, the learned Magistrate is directed to keep in abeyance the execution of the sentence. In default of his appearance and non-payment of the compensation, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. With the above direction, the revision is disposed of. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.2919/2008 8