IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 Crl.Rev.Pet.No. 415 of 2010() ----------------------------- CRA.25/2005 of ADDL.SESSIONS COURT (ADHOC), KASARAGOD CC.244/2001 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONERS: APPELLANT/ACCUSED -------------------------------------------------------------- SRINIVASA ADYANTHAYA, AGE 45, S/O. MAHABALA ADYANTHAYA, R/AT KOTTATHILA HOUSE AGARIKOLANADU, P.O.SALATHUR, BENTAWAL TALUK, KARNATAKA, D.K. BY ADV. SMT.R.PADMAKUMARI RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. MOHAN RAJ HEGDE, AGED 48, S/O. VENKAPPA HEGDE, R/AT THURUKARAKODI HOUSE, VORKADY, MANJESHWAR, KASARAGOD TALUK. R1 BY P.P. SRI C.S. HRITHIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl. R.P. No. 415 OF 2010 ---------------------------------------- Dated 9th Day of February, 2010 ORDER The accused who faced a prosecution for the offence punishable under section 138 of the Negotiable Instruments Act preferred this Crl.Revision Petition Challenging his conviction and sentence under the above Act. 2. The 2nd respondent in this Crl.R.P is the complainant in this case. The case of the complainant is that the accused/revision petitioner borrowed an amount of Rs. 25,000/- from him as a hand loan and towards the discharge of the said liability, the accused issued Ext.P1 cheque. According to the complainant, when he presented the cheque for collection, the same was dishonoured for the reason of insufficient funds to honour the cheque. Thus, thereafter, after complying with the statutory formalities, he preferred the complaint with the above allegation and accordingly, C.C.No.244/2001 was instituted in the court of the Chief Judicial Magistrate, Kasaragode. During the trial, the complainant himself was examined as PW1 and Exts.P1 to P5 documents were marked. From the side of the defence, DWs 1 to 3 were examined and Exts.D1 to D3 and Ext.X1 were Crl.R.P.415/10 -:2:- marked as defence evidence. After considering the evidence and materials on record, the trial court has found that the accused is guilty of the offence charged against him. Accordingly, the accused/revision petitioner is convicted under section 138 of the N.I.Act and sentenced him to undergo simple imprisonment for 3 months and to pay a compensation of Rs.20,000/- to the complainant and in default in paying the amount, he is directed to further undergo simple imprisonment for one week. 3. Challenging the above conviction and sentence and order of compensation, the revision petitioner/accused had approached the Sessions Court by filing Crl.A.No.25/2005. By the judgment dated 16.10.2009 of the court of the Addl. Sessions Judge (Adhoc)-1, Kasaragode, while confirming the conviction, interfered with the order of sentence and reduced the sentence of imprisonment from three months and ordered to undergo imprisonment till the rising of the court and confirmed the compensation amount as fixed by the trial court, but the default sentence is modified and enhanced as 2 months simple imprisonment. It is the above conviction and sentence and the order of compensation challenged in this Crl.Revision Petition. 4. I have heard Advocate Smt. R.Padmakumari, the Crl.R.P.415/10 -:3:- learned counsel appearing for the revision petitioner. The learned counsel submitted that the courts below have committed wrong in convicting the revision petitioner. It is the case of the learned counsel that Ext.X1 would show that the cheque in question was dishonoured not for the reason of insufficiency of funds but the account was closed and therefore no offence was made out under section 138 of the N.I.Act. It is also the case of the learned counsel that the courts below miserably failed to accept the contention of the accused/revision petitioner that there was no transaction between the accused and the complainant and the cheque in question was reached in the hands of the complainant from Jagadamba Financing Corporation. According to the accused, the cheques which were issued to the said Corporation were not returned to the accused, though the liability of the accused to the said Corporation was cleared. It is further contended that DW2, daughter of the daughter of one Anantha Chauta, the managing partner of the firm namely, Jagadamba Financing corporation adduced evidence in favour of the accused in accordance with the defence plea, which was not accepted by the courts below. The learned counsel also submitted that the trial court did not grant opportunity to the revision petitioner to adduce evidence to Crl.R.P.415/10 -:4:- substantiate his defence especially on the basis of the case put forward by the accused regarding the transaction between himself and the Jagadamba Financing Corporation. The learned counsel submitted that the punishment awarded against the revision petitioner is so harsh and excessive. 5 . I have carefully considered the arguments advanced by the learned counsel and also perused the judgments of the courts below. 6. Going by the judgment of the trial court as well as the lower appellate court, it appears that the complainant has adduced cogent and satisfactory evidence in support of his case. Apart from the oral testimony of PW1, the documentary evidence such as Exts.P1 to P5 are available on records. The above evidence of prosecution, was not properly challenged and remained the same as valid and acceptable. PW1 himself stated before the court below that though the cheque was for an amount of Rs.25,000/-, the accused received only Rs.20,000/-. It is also relevant to note that the accused revision petitioner has admitted the signature contained in Ext.P1 cheque, but disputed the transaction claimed by the complainant. 7. According to the accused/revision petitioner, he had some Crl.R.P.415/10 -:5:- transaction with a firm namely, Jagadamba Financing Corporation and connected with the said transaction, the said firm received blank cheque from the accused and though the said liability was cleared off, the cheque in question which was obtained as blank cheque , handed over to the complainant and it is the said cheque misused by the complainant to file the present complaint. In order to substantiate the above contention, the accused had examined DW2 who is the daughter of one Anantha Chauta, the managing partner of the firm namely, Jagadamba Financing corporation. According to her, her father transferred Ext.P1 cheque illegally to the present complainant. The trial court as well as the lower appellate court were not prepared to accept the above evidence of DW2 since DW2 had admitted that she did not know the complainant and she had no direct knowledge regarding the internal affairs of Jagadamba Financing Corporation. So the trial court as well as the lower appellate court accepted the evidence of PW1 and the documentary evidence and further found that the defence miserably failed to rebut the presumption which was available in favour of the complainant by virtue of Section 139 of the N.I.Act. I find no illegality with respect to the above finding of the courts below. Crl.R.P.415/10 -:6:- 8. In this juncture, it is relevant to note that the accused/revision petitioner came with such a defence story only at the time of the trial. In fact, as per the available evidence and materials on record, the complainant had sent a statutory notice to the accused which was received by him, but he did not issue any reply notice setting forth his defence whatsoever. The earliest opportunity to put forward his defence was not utilized by the accused. The above fact is sufficient to hold that the defence story that generated during the trial is only as a result of an afterthought. The evidence of DW2 who deposed against her own father cannot be believed, especially, when she has no direct knowledge regarding the internal business of her father's firm. The version given by DW2 is also doubtful, since, according to her, the accused/revision petitioner is her cousin brother. Thus, absolutely, no convincing evidence has been adduced by the accused to rebut the presumption. Therefore, I am of the view that the complainant has established its case against the revision petitioner/accused and, on the other hand, the revision petitioner/accused miserably failed to rebut the presumption. 9. It is also relevant to note that though the counsel for the revision petitioner submitted before me that the trial court did not Crl.R.P.415/10 -:7:- grant opportunity for the revision petitioner to effectively dispute the transaction claimed by the complainant and not allowed to produce documents from the court in Karnataka, the above submission is not acceptable as there is no material or discussion in any of the impugned judgments. There was no obstruction for the accused/revision petitioner in obtaining certified copies of the documents of the case , if any, pending in any court in the State of Karnataka. Therefore, the above submission of the learned counsel seems to be without any basis. Under the above circumstances, no interference of this Court is warranted with respect to the conviction of the revision petitioner under section 138 of the Negotiable Instruments Act and accordingly, the order of conviction passed by both the courts below against the revision petitioner is to be confirmed. 10. About the sentence and the order of compensation, the learned counsel submitted that the same are too harsh and excessive and exorbitant. I am unable to accept the above submission. In fact, Ext.P1 cheque is dated 1.12.2000 and admittedly, the amount shown in the cheque is for Rs.25,000/-. PW1 had admitted that the revision petitioner had received only Rs.20,000/-, but admittedly, the transaction was during the year Crl.R.P.415/10 -:8:- 2000/- . Though the trial court sentenced the revision petitioner to undergo simple imprisonment for three months and fixed the compensation amount as Rs.20,000/-, the lower appellate court had reduced the sentence till the rising of the court, but so far the amount ordered by the court below was not paid by the revision petitioner. Thus, considering the entire facts and circumstances involved in the case, I am of the view that some modifications can be made with respect to the compensation awarded and the time for making the payment, while confirming the conviction of the revision petitioner under section 138 of the N.I.Act and the sentence as modified and fixed by the lower appellate court. In the result, this Crl.R.P is disposed of confirming the conviction ordered by the trial court as well as the lower appellate court and also confirming the sentence, i.e, till the rising of the court as fixed by the lower appellate court instead of the imprisonment ordered by the trial court. The revision petitioner is further directed to pay a sum of Rs.25,000/- to the 2nd respondent- complainant as compensation under section 357(3) Cr.P.C., failing which the revision petitioner is directed to undergo simple imprisonment for 3 months. The revision petitioner is directed to appear before the trial court on 9/3/2010 to receive the sentence Crl.R.P.415/10 -:9:- and to make the payment of compensation as directed above. In case in failure on the part of the revision petitioner to appear and make the payment, the trial court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence and realise compensation amount as fixed above. V.K.MOHANAN, JUDGE kvm/- Crl.R.P.415/10 -:10:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..