IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 14TH DECEMBER 2011 / 23RD AGRAHAYANA 1933 Crl.Rev.Pet.No. 2464 of 2011() ------------------------------------- CRA.74/2010 of THE ADDL.DISTRICT AND SESSIONS JUDGE, FAST TRACK(ADHOC-II) KOZHIKODE CC.421/2008 of SPECIAL JUDICIAL FIRST CLASS MAGISTRATE (MARAD CASES), KOZHIKODE ..................................................... REVN. PETITIONER: --------------------------- MOHAMMED ALI V.P, AGED 54 YEARS, S/O.ABDUL RAHIMAN V.P, TASNEEM MANZIL,KURUMBATTIL P.O., KARANTHUR,KUNNAMANGALAM BY ADVS. SRI.R.SUDHISH SMT.M.MANJU SRI.K.R.RANJITH RESPONDENT : --------------- 1. M/S.HILLARIOUS CHITS FUNDS (L) LTD, 1ST FLOOR,JAYANTHI BUILDING,PALAYAM, KOZHIKODE 673 003.REPRESENTED BY DON BOSCO, S/O. HILLARIOUS,18/B,ULLAS NAGAR HOUSING COLONY, KUTHIRAVATTOM,KOZHIKODE 673 016 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.SEENA R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2464 OF 2011 ----------------------------------------- Dated this the 14th day of December 2011 ORDER Challenge in the revision is against the conviction of the accused for the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently by the two courts below. Sentence imposed against the accused is imprisonment till the rising of the court with direction to pay compensation of `.65,000/- with default term of imprisonment for 20 days. 2. Notice was ordered to the 1st respondent/complainant, but, after service, the complainant, a chitty company, has elected to remain absent. 3. I heard the learned counsel for the petitioner. The case canvassed by the complainant in the complaint and the evidence let in to support its case is inconsistent and no material convincing enough to prove due execution of the cheque and also transaction with the accused as alleged, was tendered in the case by the complainant and, as such, the conviction entered against the accused is unsustainable, is the submission of the counsel. The accused had contended that the cheque was issued in blank form not to the complainant but to another, one Mohammed, who had chitty transaction with the complainant Crl.R.P No.2464 OF 2011 2 company. That defence canvassed by him was substantiated by the aforesaid Mohammed, examined as DW1. Mohammed was the principal debtor and without proceeding against him, even assuming that the cheque had been handed over by the accused in relation to the liability due to the complainant, a chitty company, from Mohammed, the accused could not be proceeded with, is the further submission of the counsel. I am not impressed with the challenges raised by the counsel to assail the conviction rendered against the accused concurrently by the two courts below. The evidence tendered by the complainant was found credible and trustworthy to the learned magistrate, which after reappreciation was affirmed by the sessions judge also, to enter a finding that the cheque was duly executed by the accused and handed over to the complainant by the accused. No doubt, the accused has a case that the cheque issued, whether it be in blank form or otherwise, was in relation to a debt or liability of another, one Mohammed. So far as the offence under Section 138 of the NI Act, the issue of the cheque need not be of the drawer and it could be towards the debt or liability of any other person. The accused has contended that the cheque was issued in blank form with signature alone and that it was handed over not to the complainant, but, to another. He has not taken any step to show that the entries filled up in the payee's column, date etc. are by a different hand. The defence canvassed by him, necessarily, has to be Crl.R.P No.2464 OF 2011 3 looked into in the back drop that the notice issued on dishonour of the cheque to him remained unresponded without any reply. When such be the case, and more so where the two courts have concurrently entered a finding that the materials tendered by the complainant are sufficient to prove the due execution and also the transaction as between the complainant and the accused, within the narrow scope covered by the revisional jurisdiction, I find, the challenges raised to assail the conviction of the accused can never be entertained. 4. Affirming the conviction and sentence, the accused is directed to appear before the magistrate on 24-01-2012 to serve out the imprisonment till the rising of the court and to report payment of compensation. Amount, if any, deposited shall be given credit to in the composition fixed. The magistrate is directed to keep in abeyance the execution of sentence imposed against the accused till the date fixed as above for his appearance, to enable him to pay the compensation within such period. In default of his appearance and nonpayment of the compensation, the magistrate shall execute the sentence taking appropriate steps in accordance with law. Revision disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge