IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 Crl.Rev.Pet.No. 2737 of 2010(B) -------------------------------------------- [CRL.A.NO.427/2004 OF SESSIONS COURT, THALASSERY, CC.NO.489/2001 OF JUDL.MAGISTRATE OF FIRST CLASS COURT, KUTHUPARAMBA] .................... REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------------- O.V.JAFFER, S/O. MANHU, AGED 52 YEARS, BUSINESS, K.V.HOUSE, MAMMAKUNNU, MUZHUPPILANGADU AMSOM DESOM, P.O.KADAMBUR, KANNUR TALUK, KANNUR. BY ADV. SRI.P.M.HABEEB. RESPONDENTS/RESPONDENTS/STATE & COMPLAINANT: ------------------------------------------------------------------------------------ 1. STATE OF KERLA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.P.ZUBAIR, S/O. MOIDU, THAYYULLATHIL HOUSE, P.O.MAMBRAM, VIA. PINARAYI, PIN – 670 741. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2737 of 2010 ---------------------------------------- Dated the 22nd September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.15,000/- from the complainant and towards the discharge of the said liability, the accused issued Ext.P1 cheque 18.5.2001 for Rs.15,000/- which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, the complainant approached the court of Judicial First Class Magistrate, Kuthuparamba by filing a formal complaint upon which cognizance was taken under CRRP 2737/10 -:2:- Section 138 of the N.I.Act and instituted C.C.No.489/2001. During the course of trial, the complainant himself mounted to the box and adduced oral evidence as PW1. He has also produced Exts.P1 to P8 as documentary evidence. From the side of the defence, no evidence, either oral or documentary, was produced. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for four months and also directed to pay Rs.15,000/- as compensation to the complainant under section 357(3) of Cr.P.C. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred CRRP 2737/10 -:3:- an appeal, by judgment dated 13.7.2010 in Crl.A.No.427/2004, the court of Sessions Judge, Thalassery, allowed the appeal only in part and thus while confirming the conviction imposed against the revision petitioner, the sentence of imprisonment is reduced to simple imprisonment till rising of the court and also the fine amount is refixed as Rs.20,000/-. In default of payment of the fine amount, the revision petitioner is directed to undergo simple imprisonment for one month. It is also ordered that out of the fine amount, Rs.17,500/- shall be paid to the complainant as compensation. The default sentence is also reduced to 2 months simple imprisonment. It is the above conviction and sentence are challenged in this Crl.R.P. 3. The learned counsel for the revision petitioner vehemently submitted that the complainant has miserably failed to establish the transaction. According to the learned counsel, neither in the complaint nor in the notice, the details of the transaction are given. It is also submitted that the accused has rebutted the presumption by CRRP 2737/10 -:4:- producing cogent evidence and materials. It is further submitted that the cheque in question was given as a security when the revision petitioner interfered as a mediator with respect to the marriage dispute between the brother in law of the accused and niece of the complainant. Ext.D1 is the agreement. It is the further case of the learned counsel that on the basis of Ext.D1 agreement, the cheque in question was given to the complaint as a security and subsequently, the entire amount arrived on during the settlement was paid off and as such there was no liability. 4. I am unable to sustain the above contention. The trial court as well as the lower appellate court which are the fact finding authority, after appreciating and evaluating the evidence on record found that the cheque in question was issued by the accused towards the discharge of the liability that due to the complainant. The learned counsel for the revision petitioner submitted that the complainant has no consistent or definite case regarding the transaction. The trial court as well as the CRRP 2737/10 -:5:- lower appellate court has considered the oral evidence of PW1 which are supported by the documentary evidence such as Exts. P1 to P8. I find no reason to interfere with the observations and findings arrived on by the courts below on the basis of the above materials and evidence. It is true that Ext.D1 agreement was produced from the side of the defence in support of his version. Ext.D1 does not contain any endorsement regrading the cheque in question. So absolutely, there is no evidence to show that Ext.P1 cheque was given as part of Ext.D1 agreement. In this juncture, it is also pertinent to note that though the counsel for the revision petitioner submitted that all the terms and conditions of Ext.D1 agreement are materials, no explanation is forthcoming from the defence as to why no step was taken for getting back Ext.P1 cheque if the terms and conditions contained in Ext.D1 was complied with. In the light of the above facts and circumstances, it cannot be said that the accused has succeeded in rebutting the presumption. In the light of the above facts and circumstances, I am not inclined to interfere with the CRRP 2737/10 -:6:- concurrent findings of the trial court as well as the lower appellate court. Therefore, the conviction recorded by the courts below is confirmed. 5. The learned counsel for the revision petitioner submitted that the sentence imposed is exorbitant and disproportionate to the offence alleged and also submitted that a breathing time may be granted to pay the fine amount fixed by the appellate court . Having regard to the facts and circumstances involved in the case and in the nature of the contentions raised, I am of the view that the substantial sentence can be set aside and the sentence can be confined to fine only. Therefore, in supersession of the sentence of imprisonment ordered by the courts below, the sentence is confined to fine only and one month time is granted to deposit the fine amount, and the default sentence fixed by the appellate court will be attracted only in case of any default on the part of the revision petitioner in paying the fine amount within one month from today. In the result, this Crl.R.P. is dismissed confirming the CRRP 2737/10 -:7:- conviction recorded by the courts below against the revision petitioner under section 138 of the N.I.Act, but one month time from today is granted to pay the fine amount. V.K.MOHANAN, JUDGE kvm/- CRRP 2737/10 -:8:-