IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 24TH FEBRUARY 2009 / 5TH PHALGUNA 1930 Crl.Rev.Pet.No. 1311 of 2001 --------------------------------------- CRA.513/2000 OF THE ADDL.SESSIONS COURT, PARAVUR CC.212/1997 OF THE JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER/APPELLANT/ACCUSED: -------------------------------------------------------------- BASHEER, S/O.SAIDALAVY, BASHEER TRANSPORTS, OPPOSITE TVS TYRE RETARDING COMPANY, SOUTH KALAMASSERY. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENTS/RESPONDENTS/COMPLAINANTS: ---------------------------------------------------------------------- 1. P.U.AMEER, S/O.YOOSUPH, PUTHENPURACKAL, KOCHI UNIVERSITY P.O. KOCHI-21. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM R1 BY ADV. SRI.K.A.JALEEL SRI.V.E.ABDUL GAFOOR R2 BY PUBLIC PROSECUTOR SRI.T.K.VIPINDAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ------------------------------------------- Crl.R.P.No.1311 of 2001-C ------------------------------------------ Dated, this the 24th day of February, 2009 ORDER Revision petitioner is the accused in C.C.No.212 of 1997 on the file of the Judicial Magistrate of the First Class-II, Aluva. The first respondent prosecuted the revision petitioner before the trial court for an offence under Section 138 of the Negotiable Instruments Act with a plea that the revision petitioner borrowed a sum of Rs.80000/- and that in discharge of the liability, Ext.P1 cheque dated 20.1.1997 drawn on the District Co-operative Bank, Ernakulam was issued and that when Ext.P1 was sent for collection through Federal Bank, Kalamassery Branch, it was returned bounced for insufficiency of funds and that demanding discharge of the liability a notice, copy of which is marked as Ext.P3, was caused on 31.1.1997 and that despite the acknowledgement of the notice on 4.2.2007 the revision petitioner did not discharge the liability. The complaint was filed on 4.3.1997. 2. Responding to the process, the revision petitioner entered appearance. After furnishing the copy of the complaint, the particulars of the offence were read over and explained to Crl.R.P.No.1311 of 2001 2 the revision petitioner to which he pleaded not guilty. Hence he was sent for trial. 3. The first respondent was examined as P.W.1 and Exts.P1 to P5 were marked. The Manager of the District Co- operative Bank, Kalamassery Branch was examined as P.W.2 and Ext.P6 was marked. After closing the evidence, when questioned under Section 313 of the Code of Criminal Procedure, the revision petitioner denied the issuance of such a cheque and further contended that he borrowed a sum of Rs.45000/- and that as a security two cheques dated 19.12.1995 were issued and that including interest Rs.1,25,000/- was paid, but the first respondent returned only one cheque stating that the other cheque was not seen. Two witnesses were examined as D.Ws.1 and 2. Ext.D1 counterfoil of the cheque was also marked. The revision petitioner entered the witness box and gave evidence as D.W.3. 4. The learned Magistrate, on analyzing the evidence arrived at the conclusion of guilty. Consequently, the revision petitioner was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.3000/- with usual default clause. Aggrieved by the Crl.R.P.No.1311 of 2001 3 conviction and sentence an appeal as Crl.Appeal No.513 of 2000 was preferred before the Additional Sessions Judge, North Parur. By judgment dated 8.11.2001 the appeal was dismissed. Challenging the legality, correctness and propriety of that judgment this revision petition is preferred. 5. The point that arises for consideration is:- whether the impugned judgment is vitiated by any error, illegality or impropriety. 6. The point:- The first respondent as P.W.1 had given evidence in support of his plea that the revision petitioner borrowed a sum of Rs.80,000/- and in discharge of the liability Ext.P1 cheque was issued and that when Ext.P1 was sent for collection it was returned for insufficiency of funds along with Ext.P2 memo, which would corroborate the evidence of P.W.1. It was also deposed that demanding discharge of the liability a notice was caused on 31.1.1997 and that Ext.P3 is the copy of the notice and Ext.P4 is the postal receipt. The revision petitioner acknowledged the notice on 4.2.1997 as evidenced by Ext.P5, but the liability was not discharged. P.W.2, the Manager of the Bank was examined to prove Ext.P6, the extract of the account maintained in the name of the revision Crl.R.P.No.1311 of 2001 4 petitioner. P.W.2 had further deposed that as on the date of the cheque the balance amount in the account of the revision petitioner was Rs.599.50. Ext.P6 would corroborate with the evidence of P.W.2 and Ext.P2 memo. 7. On the other hand, the revision petitioner as D.W.3 had deposed that only a sum of Rs.45,000/- was borrowed and that as the security two cheques were issued and that the liability was discharged, but only one cheque was returned and utilising the other cheque the complaint was lodged. D.Ws.1 and 2 were examined to depose that there was dispute between the revision petitioner and the first respondent regarding the money transaction and that it was alleged that the liability was discharged, but the cheque was not returned. However, their evidence is silent as to what was the amount borrowed and what was the amount paid. Their evidence is not good for any purpose other than that there was money transaction and consequent dispute. 8. On going through the judgments of the courts below, it is seen that the courts below had correctly appreciated the evidence of P.W.1 and arrived at a finding that Ext.P1 cheque was issued in discharge of the liability. The evidence of Crl.R.P.No.1311 of 2001 5 the revision petitioner as D.W.3 is not at all sufficient to controvert the evidence of P.W.1 supported by Ext.P1. The evidence of D.Ws.1 and 2 is also not reliable as they are silent about the amount borrowed and the amount discharged. On the other hand, the statutory presumptions under Sections 118 and 139 of the Negotiable instruments Act supported the evidence of P.W.1. There is no material to conclude that the actual liability is anything lesser than the amount for which Ext.P1 was drawn. In the circumstances I find that there is no illegality, impropriety or error so as to interfere in exercise of the revisional powers with the concurrent findings of the courts below regarding the issuance of cheque and the consideration. I find that the courts below had correctly analyzed the evidence and came to the conclusion that Ext.P1 cheque was issued by the revision petitioner and is supported by due consideration. 9. Ext.P2 coupled with the evidence of P.W.2 and Ext.P6 would show that as on the date of the cheque the balance amount in the account of the revision petitioner was Rs.599.50. Whereas Ext.P1 cheque is for Rs.80000/-. So there is ample evidence to come to a finding that Ext.P1 cheque was bounced for insufficiency of funds. Crl.R.P.No.1311 of 2001 6 10. The evidence of P.W.1 coupled with Exts.P3, P4 and P5 would show that demanding discharge of the liability a notice was caused on 31.1.1997 which is within the statutory period and that it was acknowledged by the revision petitioner on 4.2.1997. The defence plea itself would show that the revision petitioner had not discharged the liability. So the first respondent was justified in launching the prosecution. The prosecution launched on 4.3.1997 is within the statutory period and I find no reason to disturb the finding of the courts below. 11. Consequently, I find that the courts below had correctly appreciated the evidence and arrived at the conclusion of guilty. The revision petitioner was convicted for sufficient evidence and there is little reason to interfere with the conviction. 12. There is little material to come to the conclusion that the revision petitioner failed to pay the amount despite he having sufficient funds. It appears that it is an ordinary money transaction and the poverty persuaded the revision petitioner to face the prosecution. It is brought out in evidence that the first respondent is a money lender. Taking into account of the entire circumstances, I find that the revision Crl.R.P.No.1311 of 2001 7 petitioner is justified in seeking modification of the sentence and I find that he is entitled to a lenient sentence and that sentence of imprisonment till rising of the court with a direction to compensate the first respondent would be just and appropriate. Point found accordingly. 13. In the result the revision petition is allowed in part. Conviction under challenge is confirmed. The sentence is reduced to imprisonment till rising of court. The revision petitioner is further directed to pay a sum of Rs.80000/- as compensation to the first respondent within a period of two months. The lower court shall see the execution of the sentence and report compliance. P.S.GOPINATHAN, JUDGE vns