IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 21ST DAY OF DECEMBER 2011/30TH AGRAHAYANA 1933 CRRP.No. 3022 of 2011 ( ) CRA.487/2010 of I ADDL. SESSIONS COURT - 1, TRIVANDRUM ST.985/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT-V, TVM (SPL.COURT-MARKLIST CASES) ...... REVISION PETITIONER(S)/APPELLANT/ACCUSED SADANANDHAN S/O ISSAC, KADAVILA VEEDU HOSPITAL JUNCTION PARASSALA P.O. NEYYATTINKARA TALUK. BY ADV.SRI.G.SUDHEER RESPONDENTS 1. P.S.STHANU PRASAD, TC 25/2198, THYVILA ROAD THAMPANOOR WARD THIRUVANANTHAPURAM - 695 001. 2. STATE OF KERALA- REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM- 682 031. BY PUBLIC PROSECUTOR SMT. R. SEENA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.3022 of 2011 ----------------------------------------------- Dated this the 21st day of December, 2011 O R D E R Revision is by the accused in a cheque case. Conviction concurrently rendered by the two courts below for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short “the Act”), is assailed in the revision. Sentence imposed against the petitioner, as modified by the Sessions Judge in appeal, is imprisonment till the rising of the court with direction to pay compensation of Rs.78,000/- to the complainant with default term of simple imprisonment for three months more. 2. Learned counsel for the revision petitioner/accused reiterated the challenges canvassed before the two courts below to impeach the correctness, legality and propriety of the conviction rendered against him holding him guilty of the offence under Section 138 of the Act. Cheque was issued in Crl.R.P.No.3022 of 2011 :: 2 :: blank form with signature alone to a third party was the defence projected by the accused to resist his prosecution for the aforesaid offence. Both the courts found no merit in that plea set up by the accused. The offence under Section 138 of the Act contemplates of strict criminal liability as against the drawer who issued the cheque which on presentation is dishonoured due to insufficiency of funds in his account or exceeded the sum arranged with the bank. When that be so, and where there is no dispute that the cheque produced in the case admittedly arose from the account maintained by the accused in a bank and its dishonour has been shown to be due to insufficiency of funds in his account, the defence projected by the accused denying the transaction and also disputing the cheque, having regard to the reverse onus cast upon the accused under Section 139 of the Act on him, necessarily demands that he should Crl.R.P.No.3022 of 2011 :: 3 :: show that such defence is probable. He must satisfy the test of preponderance of probabilities for acceptance of the defence as probable. The trial magistrate, who had the opportunity to watch the complainant while recording his evidence found his testimony reliable, trustworthy and convicting. The case of the complainant was found reliable to found a conviction against the accused. The Sessions Judge, after reappraisal of the evidence has affirmed that conclusion. When that be so, there is no merit in the challenge raised by the accused to assail the finding of guilt concurrently rendered by the two courts below to found the conviction. 3. At this stage, the learned counsel for the petitioner requested for grant of some more time to pay the compensation, and, thus avoid the default term of imprisonment. Cheque involved in the case was drawn for a sum of Rs.75,000/-, for which a sum of Crl.R.P.No.3022 of 2011 :: 4 :: Rs.75,000/- has been awarded as compensation to the complainant on conviction of the accused. Prima facie, there is no merit in the request made for extension of time, since the compensation awarded is not sufficient enough to take care of the injuries suffered by the complainant on dishonour of the cheque. However, taking into account the submissions made by the learned counsel for the accused, pointing out the extenuating circumstances, I find, a short period, as indicated hereunder, can be provided to effect payment. 4. Affirming the conviction and sentence petitioner is directed to appear before the magistrate on 07.03.2012 to serve out the imprisonment till the rising of the court, and also report the payment of the compensation. Till the date fixed as above, the magistrate is directed to keep in abeyance the execution of the sentence. In default of his Crl.R.P.No.3022 of 2011 :: 5 :: appearance and non-payment of the compensation, the learned magistrate shall execute the sentence, taking appropriate steps, in accordance with law. Revision is disposed of as indicated above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.