IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 Crl.Rev.Pet.No. 1710 of 2010() ------------------------------ CRA.906/2008 of SESSIONS COURT, TRIVANDRUM ST.35/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, NEDUMANGAD .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANT/ACCUSED ---------------------------------------------------------- NAZIMUDHEEN, S/O.SHAMSUDHEEN, MULLASSERY MELE VEEDU, NEDUMANGAD. BY ADV. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN RESPONDENTS: COMPLAINANTS --------------------------- 1. SABEELA ASHRAF, ASIYA MANZIL, PARAKKONAM, ARASUPARAMBU, KOPPAM, NEDUMANGAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ------------------ Crl.R.P.No.1710 of 2010 ----------------------------- Dated this the 18th day of June, 2010. O R D E R Accused in a prosecution for the offence u/s.138 of the Negotiable Instruments Act is the revision petitioner. 2. The case of the complainant is that, the accused borrowed sum of Rs.2,00,000/-(Rupees Two lakhs only) from the complainant on 01.06.2005 and towards the discharge of all the liability, the accused had issued Ext.P1 cheque for the said amount and when the cheque presented for encashment, it was dishonoured for want of sufficient funds in the account maintained by the revision petitioner. Consequently, a lawyer notice was sent to the revision petitioner but the same was returned as 'unclaimed'. Thus the complainant approached the trial court by filing a complaint which was taken on the file as S.T.No.35/2006 in the Judicial First Class Magistrate Court, Nedumangadu and cognizance was taken u/S.138 if Negotiable Instruments Crl.R.P.No.1710/2010 2 Act against the accused. During the trial, the complainant who is a lady, mounted to the box and gave oral evidence as PW1. Besides that she had also produced Exts.P1 to P6. From the side of the defence, DWs 1 and 2 were examined and Ext.D1 and D2 were produced. On the basis of available materials and evidence, the trial court has found that, the complainant has established her case against the revision petitioner/accused and accordingly the accused is convicted u/s.138 of the N.I. Act and consequent to such conviction, the trial court sentenced the revision petitioner to undergo simple imprisonment for six months and to pay a fine of Rs.2,00,000/-(Rupees two lakhs only) and in default of payment of fine, he is directed to undergo simple imprisonment for three more months. It was also directed that, if the fine amount is realized, the same shall be paid to the complainant as compensation u/s.357(1)(b)of Cr.P.C. Against the above conviction and sentence, the revision petitioner had filed an appeal and by judgment dated 26.11.2009, in Crl.Appeal No.906/2008, the court of Sessions Judge, Crl.R.P.No.1710/2010 3 Thiruvananthapuram allowed the appeal in part confirming the conviction. But the sentence of imprisonment is modified and reduced till raising of the court and while maintaining the amount of fine as Rs.2,00,000/-(Rupees two lakhs only), the default sentence is re-fixed as four months. It is the above conviction and sentence challenged in this revision petition. 3. I have heard Mr.S.Rajiv, learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 4. The learned counsel reiterating the stand of the revision petitioner in the trial court submitted that, the revision petitioner has no transaction with the complainant and the complainant is totally stranger to him. It is the further case of the defence that, the revision petitioner has availed a loan of Rs.25,000/- from DW1 and towards the said loan transaction, the accused/revision petitioner has Crl.R.P.No.1710/2010 4 executed a promissory note which marked as Ext.D1 and at the time of the said transaction, along with the said Ext.D1 promissory note, the revision petitioner has also entrusted with DW1, a cheque as a security for the said transaction and Ext.P1 is the cheque which entrusted with DW1. It is the further case of the defence that original of Ext.D2 and Ext.P1 cheque were kept in the vehicle driven by DW1 and the said vehicle was subsequently sold and thus the cheque lost from the possession of DW1. The learned counsel further submitted that PW1 was examined, she had deposed that the amount was given to the accused after withdrawing such amount from her account and according to the learned counsel, the said statement of PW1 is factually incorrect and in support of such submission, learned counsel referred to Ext.D2 certified copy of bank record Thus according to the learned counsel, the revision petitioner/accused has discharged his duty in rebutting the presumption. 5. All the above submissions of the learned Crl.R.P.No.1710/2010 5 counsel are made purely based upon the facts and evidence on record. The trial court as well as the lower appellate court has elaborately considered the above contention and evidence and concurrently found against the revision petitioner/accused. The complainant who is a lady, produced Ext.P1 cheque dated 01.06.2005, duly signed by the revision petitioner, from her possession with an allegation that the accused/revision petitioner borrowed a sum of Rs.2,00,000/- from her towards the discharge such liability the accused issues P1 cheque and thereby committed the offence. The revision petitioner/accused miserably failed to explain as to how Ext.P1 cheque bearing the signature of the revision petitioner reached in the hands of the complainant. It is true, DW1 was cited and he was examined. He had also produced Ext.D1 photocopy of the promissory note. Though DW1 has stated that the vehicle which was driven by him, sold by his employer, namely the owner of the vehicle, the accused/revision petitioner did not take any steps to locate the person, who allegedly purchase Crl.R.P.No.1710/2010 6 the vehicle and to establish his case that Ext.P1 cheque was lost along with the car and it eventually reached in the hands of the complainant. The evidence of DW1 is also considered by the courts below. The learned counsel read over the deposition of DW1, during the hearing of the revision petitioner. According to DW1, he kept the original of Ext.D1 in the car, which was driven by him and he kept only the Photostat copy of the cheque and the promissory note in his house. Going by Ext.D1, it can be seen that the details of the cheque and the fact of entrustments of the cheque with DW1 was endorsed, towards bottom of the signature of the revision petitioner contained in the promissory note. It is also impossible to believe that the original of P1 and D1, kept in the car and only the photocopy of the same kept in the house of DW1, as the same is against normal human conduct and prudents. The Photostat copy of Ext.D1 so the evidence of DW1 and this Ext.D1 is no way useful for the revision petitioner to probablise his case. Though, learned counsel submitted that the complainant is a total Crl.R.P.No.1710/2010 7 stranger, he had occasionally submitted that there was some enmity between the husband of the complainant and the revision petitioner. The above fact would further show that the complainant is not a totally stranger to the revision petitioner. All the facts and circumstances involved in the case, liberally considered by the trial court as well as the lower appellate court and after the appreciation of the evidence and materials which referred above, those courts concurrently found that the complainant has established her case and the accused failed to rebut the presumption. Therefore, I find no reason to interfere with the concurrent finding of the courts below. Consequently, there is no merit in the revision petition. Accordingly the same is dismissed. V.K.MOHANAN, JUDGE. ss/.