IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 6TH AUGUST 2008 / 15TH SRAVANA 1930 Crl.Rev.Pet.No. 753 of 1999 ------------------------------------ CRA.301/1998 of V ADDL.SESSIONS COURT, ERNAKULAM CC.227/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOCHI .................... REVN. PETITIONER: ----------------------------- V.T.ANTHONY, S/O.THOMAS, VELUTHEDATH HOUSE, V.A.T.ROAD, EDAKOCHI, KOCHI BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU RESPONDENT: ---------------------- BASIL NUNEX, S/O.PETER NUNEX, MOTHER VILLA, EDAKOCHI, KOCHI - 6. ADV. SRI.T.P.VARGHESE SRI.THOMAS MICHAEL SRI.MICHEEL M.WILSON SRI.N.SASI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 753 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of August, 2008 ORDER Petitioner who has been concurrently found guilty under Section 138 of the Negotiable Instruments Act, both by the trial court as well a the appellate court, has preferred this revision petition. The trial court convicted and sentenced the petitioner to undergo rigorous imprisonment for 3 months and to pay a fine of Rs.18,400/- as compensation under Section 357(3) of the Code of Criminal Procedure. In default of payment, petitioner was directed to suffer simple imprisonment for 3 months. In appeal the above order of conviction and sentence was confirmed by the Sessions Court. 2. The case of the complainant before the trial court was that the accused had borrowed a sum of Rs.15,000/- from him on September 8, 1994 with a promise to repay it with reasonable interest. But till January 1996 the amount was not repaid. On persistent demand made by the complainant, the accused ultimately issued Ext.P1 cheque for a sum of Rs.18400/- in discharge of the entire liability. But when the cheque was presented for encashment it was dishonored due to insufficiency of funds in the account of the accused. The statutory demand notice issued by the complainant did not evoke any response. The liability was not discharged also. Hence the complaint. 3. The complainant was examined as Pw.1 and his witnesses were examined as Pws.2 and 3. Exts.P1 to P6 were marked on his side. Crl.RP.753/99 2 Ext.D1 was produced and marked on the side of the defence. The defence set up by the accused appeared to be that he had borrowed only a sum of Rs.12,000/- from the complainant out of which Rs.3,000/- had already been repaid. The balance sum of Rs.9,000/- was agreed to be paid along with interest in monthly instalments at the rate of Rs.900/-. According to the accused, he had handed over a blank cheque to the complainant at the time of borrowal. The above case is seen reflected in Ext.D1 reply which was allegedly sent by the accused through his counsel on February 20, 1996 in response to the statutory demand notice. 4. As rightly noticed by the trial court, the accused did not dispute his signature in Ext.P1 cheque. It was also not disputed by the accused that he had had some money transaction with the complainant. While the case of the complainant was that Rs.15,000/- was borrowed by the accused with a promise to repay the same with reasonable interest, the accused contended that only Rs.12,000/- had been borrowed. The further case of the complainant was that Ext.P1 cheque was issued for a sum of Rs.18,400/- comprising the principal and interest. That the accused had agreed to pay interest is admitted by him in Ext.D1 itself. Therefore, in my view, the case of the complainant that Ext.P1 cheque was issued in discharge of a legally enforceable debt was rightly found true by the trial court as well as the appellate court. Though the accused had contended that he had borrowed only Rs.12,000/- , the entire burden was on him to establish Crl.RP.753/99 3 the said case. Similarly, the burden was heavy on the accused to show that he had discharged a part of the debt. In the absence of any evidence in this regard, the accused cannot contend for the position that the complainant had failed to prove his case. The trial court as well as the appellate court had correctly appreciated the oral and documentary evidence on record and come to the conclusion that the complainant had satisfactorily established his case. 5. Lastly, learned counsel for the appellant has raised a contention that he did not get sufficient opportunity to adduce evidence on his side. It is pointed out by the learned counsel that the specific case of the complainant in his chief examination was that Rs.15,000/- was lent by him to the accused through a cheque. Therefore the accused wanted to examine the Manager of the Bank in which the complainant held his account. According to the learned counsel the Manager of the Bank had appeared before the trial court. But the accused could not examine the Manager since he expressed his inability to give evidence in the absence of any details of the account of the complainant. 6. It is contended by the learned counsel that the complainant ought to have furnished his account number before the trial court. But since he did not choose to do so, the accused could not examine the Manager. When such a contention was raised by the petitioner before the appellate court, the learned Sessions Judge had verified the court records. By a separate order passed by the learned Sessions Judge on Crl.RP.753/99 4 Crl.M.P.No.1058/99 in Crl.A.301/98 the learned Sessions Judge observed that the petitioner had been given several opportunities to adduce evidence after February 10, 1998 when the accused was questioned. As noticed by the learned Sessions Judge, the trial court had pronounced orders in the case only on July 21, 1998. Further, it is not seen from the order of the learned Magistrate that any formal application was made by the petitioner accused in this regard; nor had he made any such oral request before the court. The learned Magistrate had not dealt with any such contention in the order. Therefore it has to be presumed that the accused had not raised a contention that he wanted an opportunity to examine any witness or that he had requested the Magistrate to issue a direction to the complainant to furnish his account number. 7. I have also perused the application filed by the petitioner before the appellate court as Crl.MP.1058/1998. In the said application the petitioner had only requested for permission to adduce further evidence at the appellate stage, since according to him, he did not get sufficient opportunity before the trial court to do so. It is true that he had stated that he had summoned the Manager of the Bank in which the complainant had held his account. But the Manager could not be examined since the details of the account of the complainant could not be made available to him. The learned Sessions Judge as mentioned earlier, had rejected the prayer made by the petitioner holding that he had not availed of the opportunities given to him by the Crl.RP.753/99 5 trial court apparently from February till July 1998. 8. As mentioned earlier, the only case of the petitioner was that he had borrowed only Rs.12,000/- and not 15,000/- from the complainant. Therefore the entire burden was on the petitioner to substantive the above contention. He had not adduced any evidence. He had not even chosen to examine himself as a witness in the case, though strictly speaking it may not be necessary. In the facts and circumstances of the case the courts below, in my view, were justified in holding the petitioner guilty. 9. It is further contended by the learned counsel that the sentence imposed on the petitioner is too harsh and disproportionate. I am unable to agree. In the nature of the defence set up by the petitioner and also having regard to the entire facts and circumstances I do not find any reason to interfere with the sentence imposed by the courts below. Revision Petition fails and it is accordingly dismissed. A.K. Basheer Judge. an.