IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 Crl.Rev.Pet.No. 561 of 2001 CRA.437/1998 of I ADDL.SESSIONS COURT, ERNAKULAM CC.352/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER/RESPONDENT/COMPLAINANT: K.PADMANABHA PILLAI 'AISWARYA' PALLURUTHY VADAKKUMURIYIL RAMESWARAM VILLAGE BY ADV. SRI.T.O.XAVIER RESPONDENTS/APPELLANT/ACCUSED & STATE: 1. K.MOHANAN PILLAI C.C.XXXII/2505, SONIA NAGAR P.J.ANTONY ROAD PALLARIVATTOM 2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/01/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.561 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January 2008 ORDER Appellant is the complainant in a prosecution under Section 138 of the Negotiable Instruments Act. The case of the complainant before the trial court was that respondent No.1/accused had issued Ext.P1 cheque dated October 2, 1995 for Rs.2,00,000 in discharge of a legally enforceable debt. According to the complainant, the accused had received Rs.2,00,000/- from him on the promise that he would obtain dealership of 'Safe Gas Appliances'. Since the accused could not manage to get the agency, he had promised to repay the amount, and thus Ext.P1 cheque was issued. When the cheque was presented for encashment, it was dishonoured due to insufficiency of funds in the account of the accused as evidenced by Exts.P2 and P3 memos. Though Ext.P5 statutory notice was issued demanding payment, the accused had not bothered to send a reply nor did he repay the amount. 2. The complainant got himself examined as PW1. His witnesses were examined as PWs2 and 3 and Exts.P1 to P10 were Crl.R.P.No.561 OF 2001 :: 2 :: marked on his side. There was no oral or documentary evidence on the side of the defence. 3. The learned Magistrate, on an elaborate consideration of the oral and documentary evidence on record, found that Ext.P1 cheque was issued by the accused in discharge of a legally enforceable debt and that it had been dishonoured due to insufficiency of funds in his account. It was further found that the complainant had complied with all the statutory formalities before launching the prosecution. Accordingly, the learned Magistrate found the accused guilty under Section 138 of the Act and he was convicted and sentenced to undergo rigorous imprisonment for three months and also to pay a fine of Rs.2,00,000/- and in default to undergo simple imprisonment for three months. It was further directed that on realisation of the fine amount, it shall be paid to the complainant as provided under Section 357 of the Code of Criminal Procedure. 4. The above order of conviction and sentence was challenged by the accused before the Sessions Court. The learned Sessions Judge took the view that the evidence on record was not Crl.R.P.No.561 OF 2001 :: 3 :: sufficient to prove that the cheque was dishonoured due to insufficiency of funds in the account of the accused. It was also held by the learned Sessions Judge that the evidence of PW2 did not inspire any confidence to hold that there was any privity of contract between the complainant and the accused. Accordingly, the learned Sessions Judge set aside the order of conviction and sentence and acquitted the accused. Hence this revision petition. 5. Though notice had been issued to respondent No.1/accused in this case, the notice was returned unclaimed. Therefore, it was declared that notice had been properly served on him. But there is no appearance on behalf of the accused either in person or through counsel. 6. As mentioned earlier, the specific case of the complainant was that the accused had received Rs.2,00,000/- from him with the assurance that he would be given the agency of 'Safe Gas Appliances'. But since the accused could not manage to obtain the agency in favour of the complainant, he had returned the money through Ext.P1 cheque dated October 2, 1995. PW1 had specifically contended that the cheque was presented for Crl.R.P.No.561 OF 2001 :: 4 :: encashment in February 1996 as requested by the accused. However, when the cheque was presented, it was dishonoured due to insufficiency of funds in the account of the accused. The learned Sessions Judge adopted a very strange and perverse reasoning that if only the complainant had presented the cheque in October 1995, it would have been honoured since going by Ext.P10 extract of the account of the accused, there was sufficient funds in his account during that period. According to the learned Judge, as on the date of issuance of the cheque there was sufficient funds in the account of the accused. Therefore, the complainant ought to have presented the cheque in October 1995 itself when it was issued to him. I am unable to comprehend the rationale behind this finding entered by the learned Sessions Judge. Exts.P2 and P3 memos issued by the drawer and drawee Banks unambiguously showed that the cheque had been dishonoured due to insufficiency of funds in the account of the accused. PW1 and 2, the two managers gave evidence in support of the above case put forth by the complainant. 7. Curiously, the accused did not have a case that Ext.P1 Crl.R.P.No.561 OF 2001 :: 5 :: cheque was not dishonoured due to insufficiency of funds. His case appeared to be that one Adv.Sooraj Babu, who had been having some dealings with him, had managed to get hold of some blank signed cheque leaves from him. Ext.P1 might have been one of those blank cheque leaves which the complainant had misused. Neither the accused nor any witness was examined on his side. 8. Curiously, the learned Sessions Judge proceeded further to hold that the evidence of PW2, the Manager of the Bank, did not inspire any confidence inorder to believe the version of the complainant that Ext.P1 cheque was issued by the accused in connection with the transaction for providing an agency of 'Safe Gas Appliances'. Yet again, I fail to understand how the evidence of PW2 was relevant on this aspect. The complainant had examined PW2 to prove that the accused had cash credit facility in the Bank at the relevant point of time and that Ext.P1 cheque was dishonoured since there was no sufficient funds in his account. Having perused the order of the appellate court, I have no hesitation to hold that the learned Sessions Judge was not at all Crl.R.P.No.561 OF 2001 :: 6 :: justified in reversing the finding entered by the learned Magistrate. The learned Sessions judge failed to note that the accused did not have a case that he has not signed the cheque in question. The provisions contained under Sections 118 and 139 of the Act ought to have been kept in view by the learned Sessions Judge. The learned Magistrate, in my view, had considered the entire aspects of the case meticulously and properly. It was rightly found by the learned Magistrate that the accused was guilty of the offence under Section 138 of the Act. In the facts and circumstances of the case, I am satisfied that the sentence imposed by the trial court is proper and sufficient. In the above facts and circumstances, the order of the learned Magistrate is restored. The order of the learned Sessions Judge is set aside. The learned Magistrate shall take appropriate steps for execution of the sentence imposed on the accused. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.561 OF 2001 :: 7 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.561 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 29th Jan 2008