IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 Crl.Rev.Pet.No. 2029 of 2011() ------------------------------------------- CRA.NO. 788/2009 of VTH ADDL.SESSIONS COURT, ERNAKULAM ST.NO.1065/2006 of JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------------------------------------------- K.J.JOHN, AGED 54 YEARS, KANJIRATHINMOODU, PARATHODU, PODIMATTAM, KANJIRAPPILLY, KOTTAYAM DISTRICT. BY ADV. SRI.K.R.SUNIL RESPONDENT(S)/ COMPLAINANT & STATE --------------------------------------------------------------- 1. VINU ANIL, AGED 36 YEARS, 5/396, THEKKEDATH HOUSE, MARADU.P.O., ERNAKULAM-682 034. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.P.K.VARGHESE SRI.T.P.RAMESH (THEKKUMTHALA) R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J -------------------------------------- Crl. R.P No.2029 OF 2011 ----------------------------------------- Dated this the 26th day of August 2011 ORDER Revision is by the accused who has been convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently, by the two inferior courts. The trial Magistrate, on his conviction, has sentenced him to undergo simple imprisonment for one month and to pay fine of `.80,000/-, with default term of simple imprisonment for two months. Fine amount, if realised, was directed to be paid as compensation to the complainant. In appeal, affirming the conviction, the learned Sessions Judge set aside the substantive term of imprisonment imposed, limiting the punishment to one of fine, as fixed by the Magistrate, but enhancing the default term to four months. Feeling aggrieved, the accused has preferred this revision. 2. Notice given, the 1st respondent/complainant has entered appearance. The learned counsel for the petitioner/accused assailed the conviction concurrently rendered by the two courts below, contending that the materials on record were not properly appreciated taking note that the execution of the cheque stood denied by the accused. Other than the evidence of the complainant as PW1, no convincing or worth mentioning evidence was let in to prove due execution of the cheque, is the submission of the counsel. It is further Crl.R.P. No.2029 OF 2011 2 submitted that an application moved by the complainant after his questioning under Section 313 Code of Criminal Procedure to recall the complaint for further examination and also another petition petition for letting in defence evidence had been improperly turned down by the learned Magistrate. The appellate court also has not considered the application moved by him producing some documents as additional evidence in the case, is the further submission of the counsel to contend that he was denied sufficient opportunity to establish his defence by both the courts. 3. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find no merit in any of the grounds canvassed by the counsel to assail the conviction of the accused. Notice issued to the complainant, on dishonour of the cheque, was acknowledged by the accused, but, was not responded with any reply. Suggestive questions put to the complainant, examined as PW1, denying of having any transaction even putting forth a case that the mother of the complainant was a housemaid of the accused and she had surreptitiously got hold of the cheque, were all denied by the complainant. Other than the suggestions made as aforesaid, nothing more was brought in evidence by the accused to impeach the merit of the complainant's case. If his version is to be believed, a signed cheque kept by him without making any other Crl.R.P. No.2029 OF 2011 3 entry therein had been surreptitiously taken by the mother of the complainant and later, she filed the complaint on such cheque filling up the entries. Both the courts have discarded the defence so canvassed as unworthy of any merit. The evidence of the complainant was found trustworthy and credible, and having regard to the materials tendered by her, the accused was found guilty and convicted of the offence. There is no impropriety leave alone any infirmity in the conclusion formed by the two courts, concurrently, to found a conviction against the accused. Applications moved by the accused before the trial court and also appellate court, whatever be the purpose for which they had been moved, cannot be given any consideration where it is shown that the defence canvassed by the accused was totally devoid of any truth and merit. Evidently, the accused was attempting to prolong the litigation on one ground or another moving such applications. None of the grounds canvassed by the accused to assail his conviction merits any consideration. 4. At this stage, the learned counsel for the accused, submitting that he has already deposited a portion of the cheque amount, ie, `.40,000/-, pursuant to orders passed by this court for suspension of his sentence, requested for reasonable time to pay the balance amount and, thus, avoid the default term of imprisonment. Having regard to the submissions made, I find, some more time as Crl.R.P. No.2029 OF 2011 4 indicated hereunder can be granted for payment of the fine. 5. Affirming the conviction and sentence, the accused is granted time till 30-11-2011 to pay the fine, whatever amount outstanding after the deposits, if any, made, during the pendency of the proceedings. The learned Magistrate shall keep in abeyance the execution of sentence against the accused till the date as fixed above for payment of fine. In default of payment, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge