IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 31ST JANUARY 2008 / 11TH MAGHA 1929 Crl.Rev.Pet.No. 240 of 2008() ----------------------------- CRA.129/2007 of ADDL.SESSIONS COURT (ADHOC), KOTTAYAM ST.458/2005 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ P.V.AZIZ, KANIYAMPARAMBIL HOUSE, S.H.MOUNT P.O., KOTTAYAM. BY ADV. SRI.R.REJI RESPONDENTS: RESPONDENTS/COMPLAINANT & STATE: --------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. RINS MATHEW, MAZHUVANCHERIL HOUSE, AMALAGIRI P.O., KOTTAYAM. BY PUBLIC PROSECUTOR SRI.V.T.K.MOHANAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 31/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. ```````````````````````````````````````````````````` Crl. R.P. No. 240 OF 2008 ```````````````````````````````````````````````````` Dated this the 31st day of January, 2008 O R D E R This revision petition is directed against a concurrent verdict of guilty, conviction and sentence in a prosecution under Section 138 of the Negotiable Instruments Act. The cheque is for an amount of Rs.1,10,000/-. It bears the date 4/11/2004. The petitioner now faces a sentence of imprisonment till rising of court and to pay the actual cheque amount of Rs.1,10,000/- as compensation and in default to undergo simple imprisonment for a period of one month. 2. Signature in the cheque is admitted. A financial transaction between the parties is also admitted. Handing over of the cheque is admitted. But it is contended that the cheque was not issued for the due discharge of any legally enforcible debt or liability. According to him, it was issued as a blank signed cheque when a financial transaction for a lesser amount was entered into. The said liability has been Crl.R.P.No.240/08 : 2 : discharged, but without voucher. But the cheque was not returned. The unreturned signed blank cheque is misutilised by the complainant to launch this prosecution, it was contended. 3. The complainant examined himself as PW1 and proved Exts.P1 to P8. The accused examined himself as DW2 and an autorikshaw driver was examined as DW1 in support of the theory of discharge advanced by the petitioner. Though it was contended that the notice of demand which was duly received and acknowledged evoked a reply significantly such reply was not produced or marked. 4. The courts below, in these circumstances, came to the concurrent conclusion that the complainant has succeeded in establishing all the ingredients of the offence punishable under Section 138 of the N.I Act. Accordingly they proceeded to pass the impugned concurrent judgments. 5. Called upon to explain the nature of the challenge which the petitioner wants to mount against the impugned Crl.R.P.No.240/08 : 3 : concurrent judgments, the learned counsel for the petitioner submits that the courts should have accepted and acted upon the theory of discharge pleaded by him with the support of DW1. This is the short plea raised before me on merits. The learned counsel for the petitioner further prays that some further time may be granted to the petitioner to raise and pay the compensation amount and avoid the default sentence. No other contentions are raised. 6. Less said about the theory of discharge, the better. The evidence of DW1 was considered by the courts below. They found the evidence of DW1 to be absolutely artificial and unreliable. He is the driver of the autorikshaw in which the petitioner allegedly proceeded to the house of the petitioner with a packet of currency notes in his possession to discharge the liability. DW1 lent support for the version of the petitioner as DW2 that he had paid the amounts and discharged the liability. DW1 had allegedly over heard the conversation while he was waiting outside with his autorikshaw. Crl.R.P.No.240/08 : 4 : 7. I must alertly remind myself of the nature, quality and contours of the jurisdiction of this Court in revision to re- appreciate the evidence tendered. Having considered all the relevant circumstances, I find the conclusion of the courts below that the oral evidence of Dws 1 and 2 about the alleged discharge deserves to be discarded to be absolutely correct and justified. Revisional or appellate jurisdiction does not deserves to be invoked against such a finding of fact which appears to me to be absolutely cogent, reasonable and acceptable. 8. The challenge against the impugned judgments on merits fails. The learned appellate Judge has shown indulgence and leniency to the extent possible. The petitioner now faces only imprisonment till rising of court. Notwithstanding the elapse of a long period of time, the petitioner now faces only a direction to pay the actual cheque amount as compensation and to undergo simple imprisonment for a period of one month in default. I do not, in Crl.R.P.No.240/08 : 5 : these circumstances, find any merit in the prayer for any long further period of time to make the payment. However, I am satisfied that a breathing time can be given to the petitioner to avoid the default sentence. 9. This revision petition is in these circumstances, dismissed with the observation that the petitioner shall have time till 15.3.08 to raise and pay the amount and avoid the default sentence. On or before 17.3.08 the petitioner shall appear and his sureties shall produce him before the learned Magistrate for execution of the sentence. (R.BASANT, JUDGE) aks