IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND DAY OF DECEMBER 2011/11TH AGRAHAYANA 1933 CRRP.No. 2230 of 2011 ( ) CRA.173/2010 of I ADDL.SESSIONS COURT,KOLLAM ST.148/2009 of JUDICIAL FIRST CLASS MAGISTRATE COURT-IV, KOLLAM. ........ REVISION PETITIONER(S)/APPELLANT/ACCUSED: GEORGE PATTATHANAM,NISHA BHAVAN, PERUMPUZHA COLONY, PERUMPUZHA.P.O., KOLLAM. BY SRI.P.B.SURESH KUMAR,SENIOR ADVOCATE, BY ADV. SRI.LEO GEORGE, SRI.K.N.SASIDHARAN NAIR. RESPONDENT/STATE AND RESPONDENT/STATE & COMPLAINANT: 1. STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682 031. 2. VIJAYAN,JAYANIVAS,NALLILA,NEDUMPANA VILLAGE, KOLLAM-691 515. R1 BY PUBLIC PROSECUTOR SMT. KOCHUMOL KODUVATH R2 BY ADV. SRI.S.BIJU (KIZHAKKANELA) THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02-12-2011 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.2230 of 2011 ----------------------------------------------- Dated this the 2nd day of December, 2011 O R D E R Challenge in the revision is against the conviction of the petitioner/accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 {for short ‘the Act’} concurrently by two courts below. Sentence imposed against the accused is imprisonment till the rising of the court, with direction to pay the cheque amount, a sum of Rs.95,000/- as fine with default term of simple imprisonment for one month. Fine, if realised, was directed to be paid to the complainant as compensation. Feeling aggrieved, the accused has preferred this revision. 2. Notice given, the 2nd respondent/ complainant has entered appearance. I heard the counsel on both sides. Crl.R.P.No.2230 of 2011 :: 2 :: 3. The learned counsel for the petitioner/ accused reiterated the challenges canvassed before the courts below to assail the conviction concurrently rendered against the accused. The accused has disputed the transaction with the complainant and also denied the execution of Ext.P1 cheque, the dishonour of which gave rise to his prosecution and ultimately his conviction. He set up a defence that the cheque was issued to the son of the complainant, a plumbing contractor to do some plumbing work. He had no transaction with the complainant was his plea. The trial magistrate, who had the opportunity to record the testimony of the witnesses examined in the case, found the case of the complainant proved by the materials tendered in the case. The defence canvassed by the accused was found to be bereft of any value. The learned Crl.R.P.No.2230 of 2011 :: 3 :: Sessions Judge, after re-appreciating the evidence has upheld the conclusion drawn by the trial magistrate to affirm the conviction rendered against the accused. There was total mis-appreciation of the materials tendered in the case, more particularly in analysing the defence canvassed by the accused and that has resulted in miscarriage of justice, is the submission of the counsel for the accused. The revisional jurisdiction to examine the correctness, propriety and legality of the findings entered by the inferior court is exercisable only within a narrow compass. Re-appreciation of the evidence to test the correctness of the findings of the infeior court is permissible only where it is shown that the finding entered is perverse. Nothing has been brought to my notice other than the argument canvassed that the defence canvassed by the Crl.R.P.No.2230 of 2011 :: 4 :: accused was not appreciated properly with reference to the materials produced. It is noted that on dishonour of the cheque, accused was served with a statutory notice intimating that the cheque has bounced. Admittedly, the cheque Ext.P1 arose from an account maintained by him in a bank. The dishonour was on account of the insufficiency of funds on its presentation for encashment. When a notice was issued intimating dishonour it was acknowledged, as evidenced by Ext.P6 acknowledgement card. It is submitted that a reply was sent. What was the reply, if at all it was sent, is not available on record. So much so, the accused has sent a reply when he received the notice does not in any way support his case. Further more, looking into the provisions covered by Section 138 of the Act, so far as the drawer of the instrument is Crl.R.P.No.2230 of 2011 :: 5 :: concerned, where a cheque arising from his account issued to another is returned for insufficiency of funds or it exceeded the arrangement, the offence is complete. So much so, the plea that a blank cheque with signature alone was given, that alone would not in any way assist to relieve him from the offence under Section 138 of the Act. Of course, when such a plea is raised, it is incumbent upon the complainant to lead evidence that there was due execution of the cheque. If the evidence of the complainant over the execution of the cheque is reliable, trustworthy and convincing, no further corroboration is required. Finding of guilt concurrently rendered against the accused to found a conviction against him by the courts below is fully supported by the materials produced, and it is not liable to be interfered with. Crl.R.P.No.2230 of 2011 :: 6 :: 4. At this stage, the learned counsel for the accused requested for grant of some more time to pay the fine and thus, avoid the default term of imprisonment. Though the request is opposed to by the counsel for the complainant, it is submitted that he does not stand in the way of this court granting a reasonable time for payment of the fine. 5. Affirming the conviction and sentence the accused is directed to appear before the magistrate on 30.01.2012, to serve out the imprisonment till the rising of the court and to report the payment of fine. The magistrate shall keep in abeyance the execution of the sentence till the date fixed as above for his appearance, to enable him to pay the fine within such period. In default of his appearance and non-payment of the fine, the magistrate shall execute the Crl.R.P.No.2230 of 2011 :: 7 :: sentence taking appropriate steps in accordance with law. Revision is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.