IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 Crl.Rev.Pet.No. 913 of 2010() ---------------------------- CRA.525/2007 OF II ADDL.SESSIONS COURT, KOLLAM CC.181/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT – III, KOTTARAKKARA ................... PETITIONER : (APPELLANT – ACCUSED) --------------------------------------------------- ----- SHELVAN, S/O.MANIAN, PROPRIETOR OF SINDHU JEWELLERY, KADACKAL FRIM VAISAKAM HOUSE, OPPOSITE OF GOVT.HOSPITAL, KESAVAPURAM, NAGAROOR VILLAGE, CHIRAYINKEEZHU. BY ADV. SRI.HARISH GOPINATH RESPONDENTS : (RESPONDENTS - COMPLAINANT & STATE) --------------------------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. M.SHAHUL HAMEED, SHAJAHAN MANZIL, VALAVUPACHA, KEEZHANNOOR, CHITHARA VILLAGE, KOTTARAKKARA. R1 BY PUBLIC PROSECUTOR SRI. V. TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 913 of 2010 ---------------------------------------- Dated the 28th Day of September, 2010 ORDER The accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him as per the impugned judgment. 2. The case of the complainant is that the accused borrowed an amount of Rs.1,00,000/- from the complainant on 26.4.2006 and towards the discharge of the said liability, the accused issued Ext.P1 cheque which when presented for encashment, dishonoured as there was no sufficient fund in the account maintained by the accused and the revision petitioner/accused miserably failed to repay the cheque amount in spite of a formal notice caused to issue by him. With the said allegation, initially, the complainant approached the Judicial First Class Magistrate-II, Kottarakkara by filing a formal complaint upon which cognizance was taken under Section 138 of the N.I.Act and instituted C.C.No.672/2006 and subsequently, the case was transferred to the court of Judicial first Class Magistrate-III, Kottarakara wherein the case was renumbered as C.C.No.181/2007. During the course of trial, the complainant himself mounted to the CRL.R.P 913/10 -:2:- box and adduced oral evidence as PW1. He had also produced Exts.P1 to P5 as documentary evidence. From the side of the defence, though no document was produced, DW1 was examined. After evaluation of the evidence and the materials on record, the trial court has found that Ext.P1 cheque was issued towards the discharge of a legally enforceable debt that due to the complainant and accordingly, the trial court held that the complainant has succeeded in establishing the allegation against the revision petitioner-accused and found that the revision petitioner-accused is guilty. Consequently, the accused is convicted under section 138 of the N.I.Act. On such conviction, the trial court sentenced the revision petitioner-accused to undergo simple imprisonment for a period of 15 days and also directed to pay compensation of Rs.1,00,000/- to the complainant under section 357(3) Cr.P.C. The default sentence is fixed as simple imprisonment for a period of 15 days. 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner-accused preferred an appeal, by judgment dated 10.9.2009 in Crl.A.No.525/2007, the court of II Addl. Sessions Judge, Kollam, dismissed the appeal confirming the conviction but subject to modification with respect to CRL.R.P 913/10 -:3:- the sentence. Accordingly, the sentence of imprisonment is reduced to one day imprisonment i.e., till the rising of the court and while maintaining the direction to pay compensation of Rs.1,00,000/-, the default sentence is enhanced to simple imprisonment for two months. It is against the above judgments, this Revision Petition is preferred. 4. I have heard the learned counsel appearing for the Revision petitioner and also perused the judgments of the courts below. 5. The learned counsel for the revision petitioner vehemently argued that the trial court as well as the lower appellate court have miserably failed to appreciate the defence set up by the revision petitioner and erroneously found that the complainant has established the case against the accused. The above submission of the revision petitioner is based upon the facts and evidence available on record which has already been dealt with by the trial court as well as the appellate court which are the fact finding authorities. 6. The learned counsel for the revision petitioner strenuously submitted that the cheque in question is one which was entrusted with the complainant when the revision petitioner CRL.R.P 913/10 -:4:- availed a loan of Rs.10,000/- from the complainant during the year 2000. According to the learned counsel, the version of the defence is proved through oral evidence of DW1. It is also pointed out that PW1 has also admitted the transaction of the year 2000. The trial court as well as lower appellate authority, after considering the evidence and the materials on record, found that when the execution of Ext.P1 cheque is proved by the complainant, the burden is upon the accused to rebut the presumption. The trial court has specifically found that the evidence adduced by DW1 will not help the accused to rebut the presumption. According to the trial court, DW1 has got only hearsay knowledge about the transaction. It is also specifically stated by the trial court that in the cross examination, DW1 has admitted that he had witnessed the transaction during the year 2000 alone and he did not see the transaction during the year 2006 between the complainant and the accused. The learned counsel pointed out that the appellate court mistakenly held that DW1 is the accused and the entire findings in the judgment of the appellate court is under the said impression. Therefore, the judgment of the appellate court is liable to be set aside. 7. I am unable to sustain the arguments advanced by the CRL.R.P 913/10 -:5:- learned counsel for the revision petitioner. The complainant who himself mounted to the box deposed before the court and he had categorically stated about the transaction which he claimed in the complaint. In support of his allegation in the complaint, he had produced Ext.P1 cheque which contained the signature of the accused/revision petitioner. When DW1 was subjected to cross examination, he had admitted the transaction between the complainant and the revision petitioner that taken place during the year 2000. The learned counsel submitted that the complainant had admitted the transaction of the year 2000, therefore it can be seen that the revision petitioner had discharged the burden in rebutting the presumption. 8. It is true that PW1 had admitted the transaction claimed by the revision petitioner which taken place in the year 2000. But there is no demand from the part of the complainant that Ext.P1 cheque was issued by the revision petitioner connected with the transaction of 2000. The oral evidence of PW1 connected with the transaction that taken place on 24.4.2006 remains in tact and nothing is brought on record to discredit the version of PW1. It is also relevant to note that though the revision petitioner has a case that he had borrowed only Rs.10,000/- from the complainant CRL.R.P 913/10 -:6:- during the year 2000 and though the said liability was discharged, nothing is brought on record to support the above claim. The learned Magistrate has correctly observed that DW1 has knowledge only regarding the transaction of the year 2000 which already admitted by PW1. But the question remains as to when the said liabilities were discharged and what prevented the revision petitioner from getting back the cheque in question if the same was given to the complainant during the year 2000, after the discharge of the said liability. There is no proper explanation. When the revision petitioner admits the transaction with the complainant, though not in terms of the claim of the complainant, it is for the revision petitioner to establish the transaction as claimed by him supported by materials and evidence. The courts below have concurrently found that the complainant has established his case and the cheque in question was issued towards the discharge of the liability due to the complainant. In the absence of any contra evidence and convincing explanation supported by materials as to how Ext.P1 cheque reached in the hands of the complainant, it cannot be said the revision petitioner had discharged his burden in rebutting the presumption. Therefore, I find no reason to interfere with the concurrent findings of the courts below. CRL.R.P 913/10 -:7:- 9. As this court is not inclined to interfere with the conviction recorded by the courts below, the learned counsel submitted that one month time may be granted to the revision petitioner to pay the compensation amount. According to me the said submission can be considered positively. In the result, this Crl.R.P is disposed of confirming the conviction recorded by the courts below for the offence under section 138 of the N.I.Act. Thus while maintaining the sentence of imprisonment as modified and fixed by the appellate court and maintaining the direction to pay compensation of Rs.1,00,000/- to the complainant under section 357(3) Cr.P.C. , the revision petitioner is granted one month time from today to pay the compensation amount and he is free to pay the compensation either directly to the complainant or by remitting the same in the trial court whichever subject to the satisfaction of the learned Magistrate. It is made clear that the default sentence fixed by the appellate court will be attracted only in case of failure on the part of the revision petitioner in paying the compensation amount within the extended time. Accordingly, the revision petitioner is directed to appear before the trial court on 28.10.2010 to serve the sentence and to pay the compensation amount. If there is any default on the CRL.R.P 913/10 -:8:- part of the revision petitioner in appearing before the trial court as directed above, the trial court is free to take coercive steps against the revision petitioner to secure his presence and to execute the sentence and for realisation of the amount. Coercive steps, if any, pending against the revision petitioner shall be deferred till 28.10.2010 This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-