IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 25TH MAY 2011 / 4TH JYAISHTA 1933 Crl.Rev.Pet.No. 1346 of 2011 ---------------------------------------- [CRL.A.NO.396/2010 OF ADDITIONAL SESSIONS COURT (ADHOC) III, PALAKKAD, ST.NO.1214/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-III, PALAKKAD] .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------------------------------------------------- K.BABU, S/O. KESAVAN, 29/45 B, GREEN WAYS, KOTAGIRI, NILGIRI DISTRICT, TAMIL NADU. BY ADVS. SRI.SAJAN VARGHEESE .K, SRI.LIJU. M.P. RESPONDENTS/RESPONDENTS/COMPLAINANT & NON-PARTY: ------------------------------------------------------------------------------------------- 1. P.K.CHANDRAN, S/O. KESAVAN, CHANDRAKANTHAM HOUSE, CHERADU, MALAMPUZHA, PALAKKAD – 678 651. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/05/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN,J ----------------------------------- Crl.R.P.No.1346 of 2011 ---------------------------------------- Dated this the 25th day of May, 2011 ORDER The challenge in this revision petition, which preferred by the accused in a prosecution for the offence punishable under Section 138 of the NI Act, is against the conviction and sentence imposed on him by the courts below. 2. I have heard Sri.Sajan Varghese, learned counsel appearing for the revision petitioner and I have also perused the judgments of the trial court as well as the appellate court. 3. Learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to plead and prove the transaction claimed by him. In order to substantiate the above point learned counsel submitted that deviating from the version contained in the complaint and the legal notice, at the time of cross examination the complainant has deposed before the court Crl.R.P.No.1346 of 2011 2 that the transaction was taken place from the house of the complainant whereas in the complaint the allegation is that the accused went to Big Bazar Shop, Palakkad and obtained the money from the complainant. On the basis of the above difference regarding the actual place of transaction, the learned counsel submitted that the complainant has miserably failed to establish his case. Thus, according to the learned counsel the findings of the trial court as well as the appellate court legally and factually unsustainable and liable to be set aside and the petitioner is entitled to get a free acquittal. 4. I am unable to sustain the above contention. At the outset it is to be noted that it is an admitted case that the complainant as well as the accused are relatives and they had joined venture and a partnership business. The only explanation offered by the accused, as to how the cheque in question reached in the possession of the complainant, is that the cheque in question where entrusted with the Crl.R.P.No.1346 of 2011 3 complainant during the existence of the partnership business. The trial court as well as the appellate court refused to accept the above explanation. In this juncture, it is relevant to note that though a proper statutory notice was sent to the accused, he refused to receive the same returned the same as unclaimed. There is no enquiry or reason brought on records to show as to why the notice was unclaimed. Thus, though a proper notice was sent by the complainant to the accused, he did not issue any reply refused to receive the same without any reason. 5. According to the learned counsel for the petitioner, the complainant has specifically stated about the three occasions, through which the amount was obtained by the accused from the complainant. It is true that while mentioning the cause of action to attract the jurisdiction of the court, the complainant has stated that the amount was given at Big Bazar in Palakkad. It is also a fact that during the cross examination, after changing his version that Crl.R.P.No.1346 of 2011 4 contained in the complainant, he has stated that on two occasions the amount was obtained from the house of the complainant. The trial court as well as the appellate court after having consider the entire facts and circumstances involved in this case and the evidence that include the documentary evidence, came into the conclusion that those discrepancies are minor in nature which will not sufficient to hold that the case of the complainant is false or baseless. According to the complainant the cheque in question issued by the accused towards the discharge of the liability that due to the complainant. The above averments are in terms of Section 138 of the NI Act. It is also brought on record that an amount of Rs.2,06,800/- was transferred to the account of the accused from the bank account of the complainant. The learned Magistrate has elaborately discussed the transaction in paragraph 14 of the trial court judgment. Thus, going by the above materials and as observed by the learned Magistrate, fact emerged is that Crl.R.P.No.1346 of 2011 5 the accused has received money from the complainant. As I indicated earlier, the complainant as well as the accused are relatives and partners and the documentary evidence would also show the transaction. If that be so, according to me, it is for the accused to give a convincing and plausible explanation as to how the cheque in question reached in the hands of the complainant, because the complainant, through his oral evidence as well as the documentary evidence has established a prima facie case regarding the transaction and the liability. But no evidence is adduced by the accused to discharge his burden in rebutting the presumption. In the absence of any explanation, supported by convincing explanation as to how the cheque in question reached in the hands of the complainant, a mere explanation that the accused and complainant were partners and thus, the cheque reached in the hands of the complainant are not sufficient to hold that the accused has discharged his burden. In the light of the above facts and Crl.R.P.No.1346 of 2011 6 circumstances, I find no reason to interfere with the concurrent findings of the trial court as well as the appellate court. So the conviction and sentence recorded by the trial court as well as the appellate court is confirmed. 6. According to me, the sentence imposed against the revision petitioner also reasonable and no interference is warranted, especially when the appellate court has set aside the sentence of imprisonment and the sentence is confined to fine only. Having regard to the facts and circumstances involved in this case, I am of the view that the petitioner can be granted one month time to pay the fine amount fixed by the appellate court which will be sufficient to the interest of justice. In the result, the revision petition is dismissed confirming the conviction and sentence as ordered by the appellate court and the petitioner is granted one month time to pay the fine amount fixed by the appellate court and it is made clear that the default sentence fixed by the Crl.R.P.No.1346 of 2011 7 appellate court will be attracted only if default on the part of the petitioner in paying the fine amount within one month from today. Accordingly, the revision petitioner is directed to deposit the fine amount on or before 25th June, 2011 before the trial court. If there is any failure on the part of the revision petitioner in depositing the fine amount on or before the date fixed above, the trial court is free to take steps to execute the sentence and for realisation of fine amount. Coercive steps if any pending against the revision petitioner shall be deferred till 25th June, 2011. V.K.MOHANAN, JUDGE pm/