IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 Crl.Rev.Pet.No. 1401 of 2011() ------------------------------ CRA.428/2010 of III ADDL.SESSIONS COURT, KOLLAM CC.1032/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- JAYAKUMAR, S/O.PRABHAKARAN, K.S.MANDIRAM, NEENDAKARA CHERRY, NEENDAKARA VILLAGE, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): COMPLAINANT: --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. GEETHA LAKSHMANAN, KODIYILVADAKKATHIL VEEDU, PUTHENTHURA P.O., NEENDAKARA, KOLLAM DISTRICT. PUBLIC PROSECUTOR SRI.T.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: pm S.S.SATHEESACHANDRAN,J. --------------------------------------- Crl.R.P. No. 1401 of 2011 ---------------------------------------- Dated this the 3rd day of November, 2011 ORDER Revision is by the accused, who has been convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act'), concurrently by the two courts below. Sentence imposed against the accused, as modified by the Sessions Judge in the appeal, is imprisonment till rising of Court with direction to pay compensation of Rs. 2,00,000/-(Rupees Two lakhs only), the cheque amount, to the complainant with default term of simple imprisonment for two months. Feeling aggrieved, the accused has preferred this revision. 2. Notice on the revision was ordered to the 2nd respondent/complainant, but, after service the complainant has elected to remain absent. 3. I have heard the learned counsel for the accused. Crl.R.P. No.1401 OF 2011 -2- Conviction entered against the accused concurrently by the two Courts is assailed by the counsel contending that the defence canvassed denying the transaction alleged by the complainant and also disputing the execution of cheque, was not properly appreciated by both the Courts and that has resulted in mis-carriage of justice. Complainant and accused are close relatives and the cheque had been issued in blank form with signature alone to the husband of the complainant when a loan amount of Rs.45,000/-(Rupees Forty five thousand only) was obtained by him to meet the expense for the marriage of his sister was the defence canvassed by the accused challenging prosecution over the dishonoured cheque. Before the lower appellate court moving an application under Section 391 of Code, the accused sought for reception of additional evidence, but it was not considered on its merits, according to the counsel. When a sum of Rs.45,000/- (Rupees Forty five thousand only) was availed as loan by complainant's husband, who Crl.R.P. No.1401 OF 2011 -3- was his uncle, it was given as a Demand Draft and a photocopy of that Draft was produced along the petition for reception of additional evidence, submits the counsel. If such evidence had been received in the case, it would have demonstrated that the defence canvassed by him was probable, which alone was required, according to the counsel, to challenge the prosecution launched against him for the offence under Section 138 of N.I. Act. So much so setting aside the judgment rendered by lower appellate Court the case has to be remitted and fresh disposal of the appeal after considering the document produced as additional evidence, submits the counsel. 4. Going through the judgments rendered by the two courts below, I find no merit in the submissions made by the counsel to seek for a remission of the case setting aside his conviction confirmed by the Sessions Judge dismissing his appeal. Admittedly, the cheque involved in the case arose from an account maintained by the accused in a bank. Crl.R.P. No.1401 OF 2011 -4- Though he had contended that the cheque was handed over to another in relation to a different transaction than what was alleged by the complainant, after receipt of a statutory notice he did not send even a reply to the complainant. The belated defence raised at the stage of trial disputing the transaction with the complainant with a further challenge denying the execution of the cheque, necessarily, has to be appreciated in the backdrop that the statutory notice intimating dishonour after acknowledgment remained unresponsed. Further more, the accused who contended that the cheque was issued in blank form with signature alone did not take any step to show that the other entries filled up in that instrument, the payee column, the date etc., are by a different hand. Denial of execution of cheque contending that the instrument was given in blank form with signature alone to a different person, necessarily, has to be appreciated in the totality of the proved facts and circumstances of the case. The complainant is a close Crl.R.P. No.1401 OF 2011 -5- relative of the accused. She is his aunt. The evidence tendered by the complainant as PW1 in support of her case, corroborated by the materials tendered, was found credible, trustworthy and convincing to the Magistrate who had the opportunity to watch her demeanour and deportment. The Sessions Judge after reappraisal of the evidence found no infirmity in the conclusion formed by Magistrate as regards the acceptability of her version over the execution of cheque and also the transaction under which the instrument was handed over to her by the accused in discharge of a legally enforcible debt or liability. When that be so, the concurrent finding of fact so entered by the inferior courts is not liable to be interfered with in exercise of revisional jurisdiction unless it is shown to be perverse. No circumstance whatsoever has been brought to my notice to interfere with the findings entered on the disputed facts by the two courts concurrently showing that they suffered from serious infirmity. The nonconsideration of the petition filed for Crl.R.P. No.1401 OF 2011 -6- receiving additional evidence, by the accused in appeal it is only to be stated that additional evidence can be received only if the appellate court is satisfied that it is required for a fair decision in the case. Document produced with the petition filed by the accused for reception of additional evidence, copy of Demand Draft, in no way could have altered the finding entered that the cheque was issued by him to the complainant in discharge of a legally enforcible debt and it was dishonored on presentation due to insufficiency of funds in his account. There is no merit in any of the challenges raised by the counsel to assail the conviction founded against the accused. 5. At this stage the learned counsel submitting that pursuant to the conditional orders passed by this Court for suspension of the sentence a sum of Rs.1,00,000/- (Rupees One lakh only) towards the compensation awarded had been deposited before the court below. Counsel requested for grant of some more time to pay the balance Crl.R.P. No.1401 OF 2011 -7- amount outstanding as compensation. Cheque involved in the case, the dishonour of which give rise to the prosecution and ultimately to the conviction of accused, is dated 20.05.2007, and the sum covered by that instrument is Rs.2,00,000/-(Rupees Two lakhs only). When that be so, there is no merit in seeking for extension of time. However, taking into account the submission made by counsel that the accused at present is facing financial liability I find a short period as indicated hereunder can be granted for payment of balance amount. 6. Affirming the conviction and sentence the accused is directed to appear before the Magistrate on 31.01.2012 to serve out the imprisonment till rising of court and to report the payment of compensation. If any amount has been deposited by the accused it shall be given credit to in the sum fixed as compensation. The Magistrate is directed to keep in abeyance the execution of sentence against the accused till the date fixed as above for his appearance, to Crl.R.P. No.1401 OF 2011 -8- enable him to pay the compensation within such period. In default of his appearance and non payment of compensation the Magistrate shall execute the sentence taking appropriate steps in accordance with law. The revision is disposed of subject to the above directions. S.S.SATHEESACHANDRAN JUDGE. Kp/-