IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 Crl.Rev.Pet.No. 1565 of 2011 ------------------------------------- CRA.240/2010 of ADDL. DISTRICT & SESSIONS COURT(ADHOC)III, PATHANAMTHITTA ST.1697/2007 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II,PATHANAMTHITTA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- RAJAN.P.K, LAKSHAM VEEDU COLONY, ATTUVASAM, IRAVAM, KONNI, PATHANAMTHITTA. BY ADV. SRI.C.S.MANILAL SRI.S.NIDHEESH RESPONDENTS(S): COMPLAINANT & STATE -------------------------- 1. SHEREEF.P.N, MUKKANJIRATHU, MANGARAM, KONNI. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PRSOSECUTOR SRI.V.TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1565 of 2011 --------------------------------------------- Dated this the 22nd day of June, 2011 O R D E R The challenge in this Crl.R.P. is against the conviction and sentence imposed against the revision petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act'). 2. The case of the first respondent/complainant against the revision petitioner/accused is that towards the discharge of the liability due to the complainant, the accused borrowed a sum of `.2,00,000/- from him and towards the discharge of the said liability, the accused issued a cheque dated 1.8.2007 for a sum of `.2,00,000/- which, when presented for encashment, was dishonoured for want of sufficient fund in the account maintained by the revision petitioner and the petitioner failed to pay the cheque amount, even though he was requested for the same by issuing a statutory notice. With the said allegation, the Crl.R.PNO. 1565 of 2011 :-2-: complainant approached the Judicial First Class Magistrate Court- II,Pathanamthitta whereupon S.T.No. 1697 of 2007 was instituted taking cognisance for the offence under Section 138 of the N.I.Act. During the trial of the above case, the first respondent/complainant adduced his evidence consisting of the documentary evidence such as Exts.P1 to P6 and the oral evidence of himself as PW1. Though no documentary evidence was adduced, DW1 was examined from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus, accordingly, the court held that, the complainant has established the case against the revision petitioner/accused and consequently, found that the accused is guilty and thus, he is convicted under Section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner Crl.R.PNO. 1565 of 2011 :-3-: to undergo simple imprisonment till the rising of court and also further ordered to pay compensation of `.2,00,000/- to the complainant under Section 357(3) of the Cr.P.C. and the default sentence is fixed as three months simple imprisonment. 3. Though an appeal was filed against the above conviction and sentence by the revision petitioner/accused, as per judgment dated 18.4.2011 in Crl.A.No240 of 2010, the court of the Additional District and Sessions Judge(Ad-hoc), Fast Track Court- III, Pathanamthitta dismissed the appeal confirming the conviction and sentence and the order of direction to pay compensation. It is the above conviction, sentence and direction to pay the compensation, challenged in this Crl.R.P. 4. I have heard learned counsel appearing for the revision petitioner Sri.C.S.Manilal and also perused the judgments of the courts below. 5. Learned counsel for the petitioner vehemently submitted Crl.R.PNO. 1565 of 2011 :-4-: that the complainant has miserably failed to establish the execution of cheque in question and the consideration. But,the trial court as well as the appellate court miserably failed to consider the above crucial aspect in a prosecution for the offence under Section 138 of the N.I.Act. It is also the submission of the learned counsel that the trial court as well as the appellate court went in wrong in holding that the evidence of DW1, who was examined to establish the case of the defence that the cheque in question was connected with an earlier transaction of `.5000/-, is not acceptable as he is unreliable and because Ext.P1 cheque was not shown to DW1. Thus, according to the learned counsel,the trial court as well as the appellate court, instead of conducting an enquiry as to whether the complainant has succeeded in establishing the allegation against the accused, went to the extent in finding the falsity of the defence version and came to a conclusion that the revision petitioner has committed the offence. Crl.R.PNO. 1565 of 2011 :-5-: 6. I am unable to accept the above contention. The specific case of the complainant is that the accused out of friendship demanded a sum of `.2 lakhs on 1.7.2007 and the same was given to the accused and towards the discharge of the said liability, the accused issued Ext.P1 cheque dated 1.8.2007. PW1, when examined, had deposed in terms of the above allegation. In support of the above allegation, apart from other documents, he had produced Ext.P1 cheque from his possession which is bearing the signature of the accused and belong to the account maintained by the revision petitioner/accused. It is the above evidence and allegations are challenged by the defence by giving a defence version that too only during the examination of DW1 and at 313 proceedings. Suffice to say,though the accused has received Ext.P4 legal notice, he did not care to issue any reply, putting forward his defence, either denial of the transaction or his version regarding the borrowal of `.5000/- and the discharge of such Crl.R.PNO. 1565 of 2011 :-6-: amount. It is for the first time, defence of earlier transaction connected with borrowal of `.5000/- was pleaded during the trial. 7. Learned counsel for the petitioner strenuously submitted that the complainant has failed to establish the execution of the cheque in question. According to me, the above contention is not sustainable in the light of the very defence taken by the accused during the course of trial. According to the accused, he had issued the cheque in question in favour of the complainant towards discharge as a security for the borrowal of `.5000/- from the complainant during the year 2001. Therefore, the issuance of the cheque is admitted by the accused. If that be so, the question to be considered is whether Ext.P1 was issued by the accused as claimed by the complainant or the one which was issued by the accused connected with the so-called transaction between the complainant and the accused as alleged by the accused that had taken place during the year 2002. Absolutely, there is no evidence other than Crl.R.PNO. 1565 of 2011 :-7-: the version of DW1 regarding the so-called previous transaction. No details or facts supported by the evidence are furnished by the accused to show the transaction which he claimed. In this juncture, it is relevant to note that according to DW1 as well as the accused, the said liability was discharged for which also there is no evidence. Thus, it can be seen that the version of the defence regarding the earlier transaction and the liability and its discharge are not proved or probablised. 8. Learned counsel for the petitioner submitted that in the absence of any document regarding the payment of `.2 lakhs to the accused, the allegation of the complainant cannot be taken as correct and true and as proved also. From the facts and circumstances involved in the case and in the light of the pleadings of the parties concerned, it appears that the parties are not strangers. According to the accused, the complainant has given him `.5000/- without any document. If that be so, there is no Crl.R.PNO. 1565 of 2011 :-8-: reason to disbelieve the version of PW1 complainant that he paid `.2 lakhs to the accused without any document. It is amenable to the thinking of a prudent man that the transactions between persons are based upon the intensity of friendship or relationship between the parties. Probably, if the transactions are between strangers, it may be necessary to execute documents and to put the transaction into writings. But, in the present case, as the parties have got prior acquaintance, I find no reason to disbelieve PW1, especially when he produced Ext.P1 cheque pertained to the account of the accused and particularly, the accused failed to establish his case that the cheque in question is the one which he handed over to the complainant connected with the transaction of `.5000/- during the year 2001. In the light of the above facts and discussion, I find no reason or scope for any interference with the findings of the courts below and accordingly, the concurrent findings arrived on by the courts below are confirmed. Crl.R.PNO. 1565 of 2011 :-9-: 9. Since the sentence of imprisonment imposed by the trial court and confirmed by the appellate court is only till the rising of the court, I find no reason to interfere with the sentence as well as the direction to pay compensation under Section 357(3) of the Cr.P.C., especially when the compensation amount is fixed as equivalent to the cheque amount. Counsel for the revision petitioner submitted that the petitioner may be permitted to pay the compensation directly to the complainant. I find no reason to reject the above request. In the result, this Criminal Revision Petition is disposed of confirming the conviction of the revision petitioner under Section 138 of the N.I.Act as recorded by the courts below. Accordingly, while confirming the sentence of imprisonment, the direction for payment of compensation, the compensation amount and default sentence ordered by the trial court and confirmed by the appellate court, the petitioner is granted forty five days time to Crl.R.PNO. 1565 of 2011 :-10-: pay the compensation amount to the complainant under Section 357(3) of the Cr.P.C. and it is made clear that the default sentence ordered by the trial court and confirmed by the appellate court will be attracted only if there is any failure on the part of the revision petitioner to pay the compensation amount within 45 days time from today. Accordingly, the revision petitioner is directed to appear before the trial court to receive the sentence of imprisonment ordered by the trial court and confirmed by the appellate court and to pay the compensation amount as ordered against him on 8th August, 2011. It is made clear that the revision petitioner is free to pay the amount of compensation either directly to the complainant or by remitting the same in the trial court whichever subject to the satisfaction of the learned Magistrate. In case of any failure on the part of the revision petitioner in appearing before the trial court to receive the sentence and to pay the compensation amount on the above date, the trial Crl.R.PNO. 1565 of 2011 :-11-: court is free to take coercive steps to secure the presence of the revision petitioner and to execute the sentence. Coercive steps, if any, pending against the revision petitioner shall be deferred till 8th August,2011. V.K.MOHANAN, Judge. MBS/ Crl.R.PNO. 1565 of 2011 :-12-: V.K.MOHANAN, J. -------------------------------------------- Crl.A.NO. OF 200 ------------------------------------ J U D G M E N T Crl.R.PNO. 1565 of 2011 :-13-: DATED: -2-2010 Crl.R.PNO. 1565 of 2011 :-14-: