IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Crl.Rev.Pet.No. 1441 of 2006() ----------------------------------------- CRA.565/2004 of I ADDL.SESSIONS COURT, KOZHIKODE CC.5/1999 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER/APPELLANT/ACCUSED. ------------------------------------------------------------- V.VELAYUDHAN, VADAKKEYIL HOUSE, NADUTHURUTHI DESOM, THALAKULATHOOR P.O., KOZHIKODE. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE. ---------------------------------------------------------------------------------- 1. P.NARAYANAN, ILLATHKANDY HOUSE, HOUSE NO.1/2870, WEST HILL P.O., BYE-PASS ROAD, KOZHIKODE. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.THOMAS JOHN AMBOOKEN FOR R2 ADV. SRI.V.G.ARUN FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.N.KRISHNAN, J ===================== Crl.R.P. No.1441 OF 2006 ===================== Dated this the 24th day of November 2008 O R D E R This revision petition is preferred against the judgment in Crl.A.No.565 of 2004 of the Sessions Court, Kozhikode. The said appeal was preferred against the conviction and sentence passed under Section 138 of the Negotiable Instruments Act in C.C.No.5 of 1999 of the Judl.I Class Magistrate Court-IV, Kozhikode. The trial court convicted the accused guilty for offence under Sec.138 and he is sentenced to undergo S.I. for six months and to pay a fine of Rs.1,52,000/-. The appellate court modified the sentence to imprisonment till the raising of the court and to pay Rs.1,52,000/- as compensation and in default to undergo simple imprisonment for six months. It is against that decision, the present revision petition is filed. 2. Learned counsel for the revision petitioner contends that the ingredients necessary to constitute an offence under Section 138 is not proved and therefore the revision petitioner is entitled to an acquittal in this case. It is the case of the complainant that the accused had borrowed a sum CRL.RP 1441/2006 -:2:- of Rs.1,50,000/- and issued a cheque dated 30.7.1998, which when presented for encashment was returned with the endorsement insufficiency of funds and in spite of a Lawyer notice, the amount was not paid. Hence action initiated under Section 138 of the N.I.Act. 3. On the other hand, the contention of the accused appears to be that there was no such transaction and it has all come on account of a land transaction between the parties and one Sreenivasan. The case of the petitioner appears to be that the complainant in the case had entered into an agreement with one Louis for purchase of a property for an amount of Rs.2 lakhs. He was not having sufficient funds. Then he approached the petitioner and it was decided that the amount will be advanced by one Sreenivasan, who according to the petitioner is the person who has appointed him as a manager. It is submitted that the said Sreenivasan advanced Rs.2 lakhs to the complainant through the accused and Louis registered a document with respect to a portion of the property in the name of the complainant and a portion of the property in the name of the said Sreenivasan. After some days, the complainant approached the petitioner for getting back the other property from Sreenivasan with an amount of Rs.1,50,000/-. Then it is contended that this amount of Rs.1,50,000/- was entrusted with the petitioner with a promise that he will raise the other CRL.RP 1441/2006 -:3:- Rs.50,000/- and come back. For this Rs.1,50,000/- it is submitted that a cheque was issued as a security by the petitioner in favour of the complainant. Later it is contended that the complainant paid the entire amount of Rs.2 lakhs to Sreenivasan and got back the property in his name, but did not return the cheque to the petitioner and it has been used for the purpose of filing this case. A reading of this transaction itself would reveal that some story is attempted to be made out. One cannot understand when there is an alleged transaction between Sreenivasan and the complainant the necessity of a middle man to receive some amount and for that man to offer a security and later when the transaction is over the said man does not have any role to play and a complaint is initiated against this man. It is too much to believe these type of stories for the reason that under ordinary common prudence nobody would do it. If really the petitioner was the manager of the said Sreenivasan it is certain that Sreenivasan should have been aware of the alleged issuance of a cheque as security. When ultimately the entire transaction is settled by virtue of a registered instrument executed by Sreenivasan in favour of the complainant, necessarily and naturally the cheque alleged to be given should have been received back otherwise everybody knows it will create trouble. Even when the transaction is complete and a blank cheque is remaining with the complainant under CRL.RP 1441/2006 -:4:- ordinary prudence, he should have at least initiated some legal action to get back the cheque. But admittedly nothing is done by him. It is in this background of evidence of PW1, DWs 1 and 2 and other documentary evidence, the courts below were analysed the entire evidence. I am conscious of the fact that in a criminal case, nobody can compel the accused to go and adduce evidence. But, when he adduces evidence especially in a 138 case there are large number of decisions which says that in order to find out the facts the courts are competent to consider the same also so as to find out the intrinsic reliability in order to arrive at the decision. This is what has been precisely done by the courts below and they have chosen to accept the evidence of PW1 and discarded the evidence tendered by the petitioner's side. I do not find any illegality or irregularity or perversity committed by the courts below in arriving at a decision on that point. 4. So far as sentence is concerned, the appellate court has shown maximum leniency and has reduced the sentence into till the raising of the court and to pay Rs.1,52,000/- which I feel can be converted into fine with a direction to pay the amount to the complainant on realisation. In the result, the revision petition is disposed of as follows:(1) The finding of guilt under Section 138 is sustained.(2) The petitioner is sentenced to undergo simple imprisonment for one day, i.e. till the raising CRL.RP 1441/2006 -:5:- of the court and to pay a fine of Rs.1,52,000/- which on realisation shall be disbursed to the complainant and in default, the petitioner shall undergo simple imprisonment for 3 months.(3) The revision petitioner shall appear before the trial court for receiving sentence and for making payment of fine on 24.2.2009 and on default the trial court shall execute the sentence. (4) If any amount is deposited as compensation, it shall be treated as a part of fine and the said amount shall be disbursed to the complainant on appropriate application. M.N.KRISHNAN, JUDGE Cdp/-